Aaron N. Newcomb, Ex’r, etc., App’lt, v. Edward Webster, Ex’r, etc., et al., Resp’ts.
(Court of Appeals,
Filed April 16, 1889.)
1. Will—Codicil—Repugnant clauses—Construction.
It may be taken as a well settled general rule that a will and codicil are to be construed together as parts of one and the same instrument, and that a codicil is no revocation of a will further than it is so expressed. Where it contains repugnant bequests in separate clauses, one or the other, or both, must fail, and the rule is that the bequest contained in the latter clause shall stand.
3. Same—Inconsistent devise—When burst instrument revoked.
Where there are two distinct instruments relating to the same subject-matter, an inconsistent devise or bequest in the second or last instrument is a complete revocation of the former.
3. Same—When will entirely revoked by codicil.
Where a codicil to a will provides that all of the will inconsistent therewith is revoked, then proceeds to make a new disposition of testator’s property, making certain special bequests and devises, and leaving all the residue to certain persons, the will is entirely revoked, except the appointment of executors, which matter is not mentioned in the codicil.
Appeal from a judgment of the general term, fifth department, of the supreme court, affirming a judgment of Monroe county, special term, upon trial by the court without a jury. There was no dispute about the facts. It appeared that Angeline B. Walker died on the 7th of June, 1884, leaving real and personal property in Monroe county; that by her will, dated April 23, 1881, she by its first clause gave to her sister Olive for life, house No. 89 Frank street, remainder to Mrs. A. B. Johnson, Mary A. Hatch and Milicent J. Johnson. By the second clause, to Anna New-comb for life, house and lot No. 14 Spencer street, remainder to the surviving children of Anna.
Third. She directed house No. 89-¿- Frank street to be sold, and its proceeds applied in part to the erection of a monument on “ my lot in Mt. Hope;” $100 to the Mt. Hope commissioners to keep the same and lot in order, and the residue to Emeline Soper, William Springstead, Hubert Herrick, Nellie Soper, Francis Spencely and Elliot Hodges, of Rochester, N. Y., share and share alike, after first paying $100 each to Mrs. Rose Chrichton, of Rochester, N. Y., and to Charles P. Hodges, of Cleveland, Ohio, which I bequeath to them. The legacy of William Springstead to be deposited in the Monroe County Savings Bank, and. paid over with its accumulations when he arrives at twenty-one years of age.
Fourth. Directs No. 102 Jones street to be sold, and proceeds to be divided between the six children of George Walker.
*956Fifth. She gives her piano to Robert P. Newcomb, son of Anna L. Newcomb, and all her household furniture and household goods and effects to her nieces, Mrs. Adelia Johnson, Mary Hatch, Anna Newcomb, Ida Springstead of Rochester, and Minerva Herrick of Watertown, N. Y., and also all residuary interests and estate, and finally appoints Aaron N. Newcomb and Edward Webster executors of the will, with power to sell and convey real estate.
It further appeared that in the year 1882, she sold lot 14, referred to in the second clause of the will, and also sold 102 J ones street, referred to in the fourth clause. After-wards, in 1884, she executed an instrument in these words: “I, Angeline B. Walker, of the city of Rochester, county of Monroe, and state of New York, do make, publish and declare this first codicil to my last will and testament, hereby revoking so much of my said last will and testament as is inconsistent with the provisions of this codicil.
Item First. I direct $100 to be set aside and paid over to the commissioners of Mount Hope as a perpetual fund, the interest of which shall be annually expended to keep the lot in said Mount Hope belonging to my late husband, Robert Walker, and my brother, Perry Hodges.
Second. I give and bequeath to the Rochester Home for the Friendless $150.
Third. I give and bequeath to the Frank street (otherwise Sixth) Methodist Episcopal church of Rochester, to be expended by the trustees thereof towards erecting a parsonage for the use of their pastor, the sum of five hundred dollars ($500).
Fourth. I give and bequeath to the Rochester Orphan Asylum $300, to be expended for the rearing and education of an orphan, Belle Peer, by name.
Fifth. I give and bequeath to Hubert Herrick of Rochester, $500 to be placed on interest in the Monroe county savings bank, paid over to him on arriving at twenty-one years of age; if he shall die before that date, then said legacy shall go to his mother, Minerva Herrick.
Sixth. I give and bequeath to my sisters, Emiline Soper and Olive J. Hatch, each the sum of $500.
Seventh. I give and bequeath to the six (6) children of my brother-in-law, George Walker, each the sum of two hundred ($200) dollars.
Eighth. I give and bequeath to my four nieces, Mrs. Anna Newcomb, Frances Spencely (of Canada), Adelia B. Johnson and Mary N. Hatch, all the rest, residue and remainder of my estate, both real and personal, to be divided equally between them, and share and share alike.”
The trial judge found “that no part of said will is revoked by said codicil, except the second and fourth clauses *957thereof, and the residuary devise in the fifth clause of said will, but that all other legacies and devises in said will and codicil ought to be carried into effect.”
Mr. Barnum, for app’lt; Mr. Webster, for resp’ts.
Danforth, J.
—Both will and codicil were admitted to probate by the surrogate of Monroe county and administration granted to the persons named in the will as executors, and some difference having arisen as to the effect of the codicil, this action was brought by executor Newcomb and others," against executor Webster and others, for the purpose of obtaining a judicial construction of its provisions. The plaintiffs contend that the codicil revokes all the provisions of the will, except those relating to the appoint ment of executors, while the defendants suppose that both instruments can stand and the legacies and devises in each take effect. The court, at special and general terms, have substantially sustained the view of the defendants, and from that decision the plaintiffs appeal.
It may be taken as a well-settled general rule that a will and codicil are to be construed together as parts of one and the same instrument, and that a codicil is no revocation of a will further than it is so expressed. Westcott v. Cady, 5 Johns. Ch., 343.
But, if regarded as one instrument, it is found to contain repugnant bequests in separate clauses, one or the other, or both, must fail, and, therefore, the rule is that of the two, the bequest contained in the later clause shall stand. The same principle applies with greater force where there are two distinct instruments relating to the same subject-matter. In such a case an inconsistent devise or bequest in the second or last instrument is a complete revocation of the former. But if part is inconsistent and part is consistent, the first will is deemed to be revoked only to the extent of the discordant dispositions, and so far as may be necessary to give effect to the one last made. Nelson v. McGiffert, 3 Barb. Ch., 158.
In the case under consideration, it appears that the testatrix in her life-time and after the making of the will, so-dealt with the principal real estate described in it, as by sale to revoke the gifts mentioned in the second and fourth clauses. She also acquired other real estate, and entertained a desire that beneficiaries other than those first-selected should shai’e in her bounty. These circumstances would naturally require a redistribution of her estate, and in view of them, we think it clear that the testatrix intended to make a new disposition of her entire property. Such is, at any rate, the effect of the language employed by her. There is, moreover, an express revocation of so much *958of the will as is inconsistent with the provisions of the •codicil. If we apply this language literally, it is obvious that the entire-will is to be discarded, except so much as appoints executors and defines their powers. The codicil does not deal with that subject, and to that extent the testatrix was justified, in regarding the will as a subsisting instrument. The codicil does, however, make a complete disposition of all the property of the decedent, either by special legacy or residuary clause: it is capable of operation without aid from the will, and in fact is entirely independent of it. The property divided, according to its terms, would leave nothing to apply upon the legacies or bequests of "the will. The codicil, moreover, introduces new beneficiaries, and while it provides also for persons already named in the will, does so, not by referring to the will, or by way of in•crease or addition to shares given by it, but evidently by substitution, and then by formal and explicit language, the testatrix gives to her four nieces all the rest and remainder of her estate, both real and personal, to be divided equally among them. The remainder here spoken of is that which is left after satisfying the legacies provided for in the same instrument, and it is impossible for the disposition made by the will to stand with that made by the codicil. Both instruments were, however, properly admitted to probate for the appointment of executors by the will holds good, although the estate is to be administered according to the provisions of the codicil. The plaintiffs are, we think, entitled to a decree to that effect, and so far as the judgment •appealed from is to the contrary, it should be reversed, with costs to the appellant. But, as the defendants have heretofore succeeded, they also should have one bill of costs both to be paid out of the estate.
All concur.