McCown, J.
This action is for a declaratory judgment construing á will and determining the persons entitléd to the assets [451]*451of the residual estate of Alma Hopkins, deceased. The district court entered a decree that the residue of the estate of Alma Hopkins, deceased, vested in Ruth Niemann and Dean Niemann equally, share and share alike, to be theirs absolutely in fee simple without condition or limitation. The defendant Willis B. Zacharias has appealed. We affirm the judgment of the district court.
The will of Alma Hopkins was dated June 27, 1963. Alma Hopkins died January 30, 1968, and her will was duly admitted to probate. The relevant portions, of her will provided: “SECOND, All the rest, residue and remainder of my property, both real and personal, wheresoever situated, including after-acquired property, I hereby give, devise and bequeath to NELLIE HOPKINS of Auburn, Nebraska; LUCY B. HOPKINS, of Auburn, Nebraska; RUTH NIEMANN of Auburn, Nebraska, and DEAN NIEMANN of Auburn, Nebraska, equally, share and share alike, and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments, to be theirs absolutely, in fee simple, without condition or limitation.
“THIRD: I well remember my brother, ALBERT A. FENSKE; my nephew, ALBERT FENSKE Jr.; my niece NAOMI NIEMANN; my niece, GLENIS BEHRENDS, and all of my other heirs and relatives, but on account of the foregoing provisions of this my Last Will and Testament, I give them and each of them nothing hereunder.”
Nellie Hopkins, one of the four individuals named in the second paragraph of Alma Hopkins’ will, died on March 15, 1966. Her will was dated June 21, 1963. Her will left one-half of her estate to Alma Hopkins and one-half to Lucy B. Hopkins. Final decree was entered September 6, 1969. The parties are in agreement that the share of Alma Hopkins’ estate given to Nellie Hopkins by Alma’s will lapsed back into the residue upon Nellie’s death prior to the death of Alma.
Lucy B. Hopkins, named in paragraph Second of Alma [452]*452Hopkins’ will, died January 24, 1968, leaving a will which was duly admitted to probate. The will was dated August 14, 1964. Paragraph Tenth of the will of Lucy B. Hopkins provided: “TENTH: All inheritances which I may be entitled to at the date of my death by reason of the provisions of the Last Will and Testament of any person or persons, or over which I have any power of appointment, I hereby declare and designate Willis B. Zacharias, my Nephew, to be my sole heir for the purpose of receiving such inheritance, and if I have any power of appointment, I hereby appoint said legacy or device to the said Willis B. Zacharias, to be his absolutely and forever, without condition or limitation, and to his heirs by right of representation, per stirpes.” Willis B. Zacharias was also the residual legatee under the will of Lucy B. Hopkins.
Alma Hopkins, the testatrix, was the widow of Wood Hopkins. Neither Alma nor Wood had any children. Nellie Hopkins was a sister of Wood Hopkins and a sister-in-law of Alma Hopkins. Lucy B. Hopkins was; a cousin of Wood Hopkins and a cousin-in-law of • Alma Hopkins. Neither Nellie Hopkins nor Lucy B. Hopkins were related to Alma Hopkins by blood.. Both Nellie Hopkins and Lucy B. Hopkins were spinsters, and had no children.
Ruth Niemann is a niece of Alma Hopkins, a daughter of Albert Fenske, who is a brother of Alma Hopkins. Ruth Niemann is the only person involved who is related to Alma Hopkins by blood. Albert Fenske has three other children who are not beneficiaries of the estate of Alma Hopkins. Albert Fenske and these three children are the four persons named in paragraph Third of Alma Hopkins’ will who received nothing under the will.
Dean Niemann is the husband of Ruth Niemann and thus a nephew-in-law of Alma Hopkins.
Defendant Willis B. Zacharias is a nephew of Lucy B. Hopkins.
[453]*453■ The district court found and decreed that the residue of the estate of Alma Hopkins vested in Ruth Niemann and Dean Niemann, equally, share and share alike, to be theirs absolutely in fee simple without condition or limitation.
It is the- contention of the defendant Willis B. Zacharias that the language of paragraph Second “and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments” shows a controlling intent or dominate purpose of Alma Hopkins that the gifts were not contingent upon the named persons outliving her, but gave to each of them a power of disposition in the event they died prior to the testatrix. Zacharias contends that the quoted language gave to each of the four named individuals a power of appointment of his or her share or a power of testamentary substitution.
The plaintiffs’ position is that the will demonstrates the intent to give the four named beneficiaries fee simple title to her estate without condition or limitation, and that since Nellie Hopkins and Lucy B. Hopkins predeceased Alma Hopkins, their fee simple interest therefore lapsed into the residue and goes to Ruth and Dean Niemann.
The parties concede that in construing the will of Alma Hopkins, the intent of the testatrix governs so far as such intent can be collected from the whole instrument, and insofar as such intent is not inconsistent with substantive rules of law.
Where a patent ambiguity in a will is involved, and the search for intent is limited to “the four corners of the will,” the difficulty is apparent. Any effort to ascertain the “true intent” of a testator necessitates not only interpreting ambiguous or even contradictory language, but weighing and balancing varying and sometimes conflicting legal rules, principles, and presumptions.
Where a devisee or legatee dies before the testator, in the absence of statute, or of other provisions in the will which show that the testator intended the gift to go [454]*454to some other designated person in case the beneficiary died before the testator, the gift lapses. See 6 Page on Wills, § 50.2, p. 62. The Nebraska antilapse statute, section 30-228.03, R. R. S. 1943, does not apply, and the basic common-law rule is in effect.
Whenever the same person acquires a fee simple estate and a lesser estate in the same property, the lesser estate is destroyed by or merged in the fee simple estate. See Watson v. Dalton, on rehearing, 146 Neb. 86, 20 N. W. 2d 610.
In Grant v. Hover, 103 Neb. 730, 174 N. W. 317, this court said: “It has been regarded by the courts that it is impossible to convey an absolute title to real estate in fee simple by deed or will, and at the same time in the same instrument convey to the same person a limited right or title in the same land.”
The same principles apply to a power of appointment. “* * * the modem American view is that one cannot be the owner of an interest in property and also the donee of- a power to appoint that interest. In other words, there can be no such thing as a power appendant.” Simes and Smith, The Daw of Future Interests, § 1060-, p. 528. See, also, 72 C. J. S., Powers, §§17 and 18, p. 410; In re Estate of McCurdy, 197 Cal. 276, 240 P. 498; In re C'ardon’s Trust, 352 Pa. 23, 42 A. 2d 56.
A testator can prevent the lapse of a legacy by providing for the substitution of another beneficiary in case the original beneficiary predeceases the testator. Here again, the problem is the intention of the testator. See, 57 Am. Jin., Wills, §§ 1428, 1429, pp. 958 and 959; Thompson on Wills (3d Ed.), § 493, p. 714.
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McCown, J.
This action is for a declaratory judgment construing á will and determining the persons entitléd to the assets [451]*451of the residual estate of Alma Hopkins, deceased. The district court entered a decree that the residue of the estate of Alma Hopkins, deceased, vested in Ruth Niemann and Dean Niemann equally, share and share alike, to be theirs absolutely in fee simple without condition or limitation. The defendant Willis B. Zacharias has appealed. We affirm the judgment of the district court.
The will of Alma Hopkins was dated June 27, 1963. Alma Hopkins died January 30, 1968, and her will was duly admitted to probate. The relevant portions, of her will provided: “SECOND, All the rest, residue and remainder of my property, both real and personal, wheresoever situated, including after-acquired property, I hereby give, devise and bequeath to NELLIE HOPKINS of Auburn, Nebraska; LUCY B. HOPKINS, of Auburn, Nebraska; RUTH NIEMANN of Auburn, Nebraska, and DEAN NIEMANN of Auburn, Nebraska, equally, share and share alike, and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments, to be theirs absolutely, in fee simple, without condition or limitation.
“THIRD: I well remember my brother, ALBERT A. FENSKE; my nephew, ALBERT FENSKE Jr.; my niece NAOMI NIEMANN; my niece, GLENIS BEHRENDS, and all of my other heirs and relatives, but on account of the foregoing provisions of this my Last Will and Testament, I give them and each of them nothing hereunder.”
Nellie Hopkins, one of the four individuals named in the second paragraph of Alma Hopkins’ will, died on March 15, 1966. Her will was dated June 21, 1963. Her will left one-half of her estate to Alma Hopkins and one-half to Lucy B. Hopkins. Final decree was entered September 6, 1969. The parties are in agreement that the share of Alma Hopkins’ estate given to Nellie Hopkins by Alma’s will lapsed back into the residue upon Nellie’s death prior to the death of Alma.
Lucy B. Hopkins, named in paragraph Second of Alma [452]*452Hopkins’ will, died January 24, 1968, leaving a will which was duly admitted to probate. The will was dated August 14, 1964. Paragraph Tenth of the will of Lucy B. Hopkins provided: “TENTH: All inheritances which I may be entitled to at the date of my death by reason of the provisions of the Last Will and Testament of any person or persons, or over which I have any power of appointment, I hereby declare and designate Willis B. Zacharias, my Nephew, to be my sole heir for the purpose of receiving such inheritance, and if I have any power of appointment, I hereby appoint said legacy or device to the said Willis B. Zacharias, to be his absolutely and forever, without condition or limitation, and to his heirs by right of representation, per stirpes.” Willis B. Zacharias was also the residual legatee under the will of Lucy B. Hopkins.
Alma Hopkins, the testatrix, was the widow of Wood Hopkins. Neither Alma nor Wood had any children. Nellie Hopkins was a sister of Wood Hopkins and a sister-in-law of Alma Hopkins. Lucy B. Hopkins was; a cousin of Wood Hopkins and a cousin-in-law of • Alma Hopkins. Neither Nellie Hopkins nor Lucy B. Hopkins were related to Alma Hopkins by blood.. Both Nellie Hopkins and Lucy B. Hopkins were spinsters, and had no children.
Ruth Niemann is a niece of Alma Hopkins, a daughter of Albert Fenske, who is a brother of Alma Hopkins. Ruth Niemann is the only person involved who is related to Alma Hopkins by blood. Albert Fenske has three other children who are not beneficiaries of the estate of Alma Hopkins. Albert Fenske and these three children are the four persons named in paragraph Third of Alma Hopkins’ will who received nothing under the will.
Dean Niemann is the husband of Ruth Niemann and thus a nephew-in-law of Alma Hopkins.
Defendant Willis B. Zacharias is a nephew of Lucy B. Hopkins.
[453]*453■ The district court found and decreed that the residue of the estate of Alma Hopkins vested in Ruth Niemann and Dean Niemann, equally, share and share alike, to be theirs absolutely in fee simple without condition or limitation.
It is the- contention of the defendant Willis B. Zacharias that the language of paragraph Second “and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments” shows a controlling intent or dominate purpose of Alma Hopkins that the gifts were not contingent upon the named persons outliving her, but gave to each of them a power of disposition in the event they died prior to the testatrix. Zacharias contends that the quoted language gave to each of the four named individuals a power of appointment of his or her share or a power of testamentary substitution.
The plaintiffs’ position is that the will demonstrates the intent to give the four named beneficiaries fee simple title to her estate without condition or limitation, and that since Nellie Hopkins and Lucy B. Hopkins predeceased Alma Hopkins, their fee simple interest therefore lapsed into the residue and goes to Ruth and Dean Niemann.
The parties concede that in construing the will of Alma Hopkins, the intent of the testatrix governs so far as such intent can be collected from the whole instrument, and insofar as such intent is not inconsistent with substantive rules of law.
Where a patent ambiguity in a will is involved, and the search for intent is limited to “the four corners of the will,” the difficulty is apparent. Any effort to ascertain the “true intent” of a testator necessitates not only interpreting ambiguous or even contradictory language, but weighing and balancing varying and sometimes conflicting legal rules, principles, and presumptions.
Where a devisee or legatee dies before the testator, in the absence of statute, or of other provisions in the will which show that the testator intended the gift to go [454]*454to some other designated person in case the beneficiary died before the testator, the gift lapses. See 6 Page on Wills, § 50.2, p. 62. The Nebraska antilapse statute, section 30-228.03, R. R. S. 1943, does not apply, and the basic common-law rule is in effect.
Whenever the same person acquires a fee simple estate and a lesser estate in the same property, the lesser estate is destroyed by or merged in the fee simple estate. See Watson v. Dalton, on rehearing, 146 Neb. 86, 20 N. W. 2d 610.
In Grant v. Hover, 103 Neb. 730, 174 N. W. 317, this court said: “It has been regarded by the courts that it is impossible to convey an absolute title to real estate in fee simple by deed or will, and at the same time in the same instrument convey to the same person a limited right or title in the same land.”
The same principles apply to a power of appointment. “* * * the modem American view is that one cannot be the owner of an interest in property and also the donee of- a power to appoint that interest. In other words, there can be no such thing as a power appendant.” Simes and Smith, The Daw of Future Interests, § 1060-, p. 528. See, also, 72 C. J. S., Powers, §§17 and 18, p. 410; In re Estate of McCurdy, 197 Cal. 276, 240 P. 498; In re C'ardon’s Trust, 352 Pa. 23, 42 A. 2d 56.
A testator can prevent the lapse of a legacy by providing for the substitution of another beneficiary in case the original beneficiary predeceases the testator. Here again, the problem is the intention of the testator. See, 57 Am. Jin., Wills, §§ 1428, 1429, pp. 958 and 959; Thompson on Wills (3d Ed.), § 493, p. 714.
The particular words which give rise to the problem here are: “and to their heirs, devisees and legatees as set forth in their Last Wills and Testaments.” This language is preceded by the language giving all the residue of the testatrix’ property to the four named individuals “equally, share and share alike” and is followed [455]*455by the words: “to be theirs absolutely, in fee simple, without condition or limitation.”
The issue here is whether the testatrix intended the critical language to be words of limitation or words of substitution. Generally speaking, where words such as “heirs,” “estate,” “representatives,” “executors,” or “administrators” have been used following the name of a specific beneficiary, the word “and” has ordinarily carried the connotation that the words are words of limitation rather than of substitution. The use of the word “or” in such an instance has often been construed as indicating words of substitution. See, 96 C. J. S., Wills, § 739, p. 135; Annotation, “Wills — or his estate’— lapse,” 11 A. L. R. 2d 1387. See, also, Justice Traynor’s opinion, In re Estate of Brunet, 34 Gal. 2d 105, 207 P. 2d 567, 11 A. L. R. 2d 1382, as to the words “or his estate.”
Had the language here stopped with the words “and to their heirs, devisees and legatees” we think there would be little question but that the words would be words of limitation rather than words of substitution. It would seem only logical that the addition of the words “as set forth in their Last Wills and Testaments.” merely narrows the limitation rather than broadening it. The language, in whole or in part, is still basically language of limitation rather than language of substitution.
It must be noted too that paragraph Third of the will of Alma Hopkins stated her specific intent that the relatives named in that paragraph, and all of her “other heirs and relatives,” should take nothing under her will. This language supports the trial court’s finding that it was the intent of the testatrix to benefit only those persons named in paragraph Second of her will and inferentially supports the conclusion that the critical language in paragraph Second was not intended as substitutional.
The language of paragraph Second of Alma Hopkins’ [456]*456will expresses a clear intent to leave her estate to the four individuals named “to be theirs absolutely, in fee simple, without condition or limitation.” That being true, no power of appointment or substitution ever came into existence which could be exercised by any of the named individuals if they predeceased her, nor is there any indication that the testatrix ever intended the four named beneficiaries to receive less than a fee simple estate.
A will speaks only from the date of the testator’s death. Neither an absolute fee simple interest nor a power of appointment or substitution could come into existence until the death of Alma Hopkins. If any of the four named beneficiaries predeceased Alma Hopkins, any interest they might have had in her estate never came into existence. If Nellie Hopkins’ interest in the estate of Alma Hopkins lapsed upon Nellie’s death prior to that of Alma, as the trial court found, and as both parties concede, Lucy B. Hopkins’ position and interest cannot be logically distinguished. Both Nellie and Lucy left valid wills and heirs, devisees, and legatees under those wills. The fact that the will of Lucy B. Hopkins contained a clause specifically disposing of inheritances and powers of appointment generally while Nellie’s will did not is immaterial. We are dealing here with the language in the will of Alma Hopkins, not the language in the wills of Nellie Hopkins or Lucy B. Hopkins.
The rule that wills should be construed so as to avoid the passing of property by intestacy does not apply here. The trial court was correct in determining that the intent of the testatrix was to benefit only those persons named in paragraph Second of her will; that no life estates were intended; that the testatrix intended to vest in the named individuals an absolute fee simple title without condition or limitation; and that upon the death of any of the four named individuals prior to the testatrix, the interest of that individual lapsed.
[457]*457The judgment of the trial court was correct and is affirmed.
Affirmed.