Boyce, J.,
delivering the opinion of the court:
This is a case stated in assumpsit for a legacy. The question is whether the plaintiff, Minot C. Brewer, is entitled to the sum of twenty-seven thousand dollars or the sum of seven thousand dollars under the will of his grandmother, Adaline H. Curtis, lately of White. Clay Creek Hundred, who departed this life, August the twenty-third, 1917, possessed of an estate of personal property amounting to fifty-five thousand one hundred and thirty-five dollars and fifty-nine cents.
The deceased left as her next of kin the plaintiff, who is the surviving child of Sarah H. Brewer, now deceased, a daughter of the said Adaline H. Curtis, and a son, Walter C. Curtis, who as the executor of the last will and testament of the said Adaline H. Curtis is the defendant in this action. The facts are as follows:
Adaline H. Curtis made her original will, under date of August thirteenth, 1908, wherein and whereby she provided inter alia:
“1. I give to my daughter, Sarah H. Brewer, wife of Allyn Brewer, the sum of twenty thousand dollars ($20,000).
2. I give to my grandson, Minot Curtis Brewer, the sum of one thousand dollars ($1,000), and in case my said daughter be not living at the time of my decease, I give to him in addition to the above legacy the sum of six thousand dollars (§6,000).
The said Sarah H. Brewer, legatee in the first item of the will, died October fifteenth, 1908, leaving as her issue, Minot Curtis Brewer, the plaintiff.
At the time of the decease of the said Sarah H. Brewer there was in this state no statute to prevent the lapsing of such a legacy as that bequeathed in the first item of the said will, but by an act, approved March fifteenth, 1909, entitled, “An act to prevent the lapsing of certain devises, and legacies,” it was provided:
“Section 1. That no devise or legacy in favor of a child oi other lineal descendant of any testator dying after the approval of this act, shall be deemed or held to lapse or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator; but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator, the right to direct otherwise. * * * " Rev. Code 1915, § 3389.
On February third, 1910, the said Adaline H. Curtis made a codicil to her said will, ratifying and confirming the same, but making the following additional bequests:
“ First. I give to Alice V. Brewer, wife of my grandson Minot C. Brewer, the stun of two thousand dollars.
“Second. I give to Walter C. Brewer, my great grandson, the son of the said Minot C. Brewer, the sum of five hundred dollars."
For the plaintiff it is contended that the case at bar comes within the anti-lapsing statute, and that plaintiff is entitled not only to the seven thousand dollars bequeathed to him by the second item of the will, but also to the sum of twenty thousand dollars bequeathed to his mother by the first item of the-will. This contention is based: First, upon the original will alone without any aid or benefit from the codicil and republication of, the will; and, second, it is argued that the codicil effectuates the same result. For the defendant it is contended that it is the manifest intention of the testatrix that the plaintiff should take only six thousand dollars in addition to his absolute legacy of one thousand dollars.
We think it true that the object of the act of March fifteenth, 1909, was to regulate the construction of wills, and that the will of the testatrix, not taking effect until her death, must come under the influence of the act. But at the same time we are of the opinion that the testatrix has expressly directed what amount of her property the plaintiff should receive in case her daughter should be not living at the time of her decease. The words of the testatrix in the second item of her will are sufficient to preclude the construction contended for by the plaintiff. The testatrix expressly says:
“In case my said daughter be not living at the time of my decease, I give to him” (the plaintiff) “in addition to the above legacy the sum of six thousand dollars.’*
The very words “in-addition to the above legacy” limit the bequest as clearly as if the testatrix had expressly directed that the legacy of her daughter, Sarah H. Brewer, should lapse. The testatrix contemplated the possible death of her daughter and made express provision therefor. Her codicil in no way changed this express provision. And it may be assumed that she did not revoke the bequest to her daughter because she had already made definite provision in case her daughter should not be living at the time of her decease.
It is the opinion of the court, under the law and facts of this case that the plaintiff, Minot Curtis Brewer, is not entitled to have paid to him the said sum of twenty thousand dollars, given and bequeathed in said last will and testament to the said Sarah H. Brewer, but that he is entitled to be paid by the defendant. Walter C. Curtis, executor of the said last will and testament, the sum of seven thousand dollars. Judgment is accordingly entered in favor of the plaintiff, and against the defendant for the said sum of seven thousand dollars and for the costs of this suit.