Opinion
November Term, 1900.
Frank E. Blackwell, for the appellant.
George B. Covington, for the respondents.
The testator executed the will in 1890. He devised his residence, known as Island Home, as an establishment, to his only son Oliver in fee. In 1893 he executed the 4th codicil that provided, "On the death of my said son Oliver, I give and devise to my said grandson Oliver E., his heirs and assigns, my property or premises in the said Town of Rye, known as Island Home, Manursing Island, and the appurtenances thereto belonging." The plain ordinary meaning of the words relating to the residence is that in 1890 he devised it, furnished for living, to his son in fee, and that in 1893 he gave it to his son for life, then to his son's son in fee. We find the intent of a testator from his language, lightened, too, by the surrounding circumstances. ( Byrnes v. Stilwell, 103 N.Y. 453, 458.) The circumstances in this case afford a reason for this alteration in the scheme of the testator. When the will was executed Oliver, the son, did not have issue, and not until after the execution of the 3d codicil, but before the 4th codicil, was a son born to him. The birth of the grandson, Oliver E., was the first assurance of the continuance of the family name. It would appear then that the testator, possessed of considerable wealth, intended to keep the residence in the line of succession so far as the statute suffered it. But the son insists that the true construction of the will and of the codicil still leaves the fee in him, and this is the sole question presented by the appeal. The rules which he invokes are well recognized, but his difficulty lies in their application. Thus, words of condition or limitation, repugnant to the plain intent of the testator, already declared, that a devise shall be in fee, are held void. But of course this rule does not apply to defeat a plain change of the character of the estate theretofore devised, otherwise the prior expression would control, the subsequent provision would be nullified, and so all of the provisions of a will would not be considered. In Freeman v. Coit ( 96 N.Y. 63, 67) the court say: "It is undoubtedly true that an interest given in one clause of a will, in terms denoting an absolute estate, may, by force of a subsequent clause, be qualified by a limitation over in a certain event, or be cut down, or made to take effect only on a contingency. This is but the application of a familiar rule that the construction of a will or other instrument is to be made upon the whole words and not upon a part only, and that a particular word or clause may, in the light of other words or clauses, mean more or less than it imports, considered singly or by itself alone."
We are not confronted with a question of the interpretation of apparently repugnant provisions in one and the same sentence or paragraph or instrument. While the codicil republishes the will, and while it and its codicils must be construed together, yet the purpose of a codicil is to add to or qualify a will, and where the will and the codicil are inconsistent, the codicil controls so far as to give it full effect, and the "presumption in such a case is much stronger than in the case of a later clause in the same instrument." ( Crozier v. Bray, 120 N.Y. 366, 375.)
The testator did not employ words necessarily implying a contingency. The words of the codicil are "On the death of my said son Oliver, I give and devise." "On" means at the death of my son, or upon the death of my son, and is not synonymous with in the event of the death of my son, or similar phrases. ( Constable v. Bull, 3 DeG. S. 411; Matter of Adam's Trusts, 14 Wkly. Rep. 18; Joslin v. Hammond, 3 M. K. 110; Reid v. Reid, 25 Beav. 469.)
The familiar rule of construction invoked by the appellant, that in a devise to one person in fee and in case of his death to another, the death referred to is that of the first devisee during the life of the testator, is one of necessity. Death is certain, and time, only, is contingent. Therefore, if contingency apply to a certainty, the certainty must be limited to some period, and that period, in the absence of all indication, is presumed to be the lifetime of the testator. ( Matter of New York, L. W.R. Co., 105 N.Y. 89; Vanderzee v. Slingerland, 103 id. 47; Fowler v. Ingersoll, 127 id. 472; Jarman Wills, 1564, 1569.) This rule, as one ex necessitate, is sharply limited. In Matter of Denton ( 137 N.Y. 428) the court say: "But this rule has only a limited operation, and cannot be extended to a a case where a point of time is mentioned other than the death of the testator, * * * or to a case where a life estate intervenes, or where the context of the will contains language evincing a contrary intent." In Mead v. Maben ( 131 N.Y. 255) the court say: "In all the authorities which are referred to upon the subject of the application of the general rule above referred to, the courts, as indeed does Mr. Jarman, upon the authority of whom the courts have more or less relied, assume that the context of the will is silent, and that the instrument contains nothing indicating an intention which interferes with the application of this rule." (See, too, Matter of Baer, 147 N.Y. 348.) In Vanderzee v. Slingerland ( supra) the court say: "Indeed, the tendency is to lay hold of slight circumstances in the will to vary the construction and to give effect to the language according to its natural import." Before the execution of the 2d codicil, the testator had already made clear provision for the descent in case of the death of his son before his own death. When the testator sought to provide for the contingency of the death of his children or either of them, during his lifetime, he used plain and unambiguous language. Thus, in the 2d paragraph of the 2d codicil, he writes: "In the event that my children or either of them shall depart this life before my death, I hereby give * * *." When it is claimed that he but expresses the same intent by the words of this 4th codicil, the difference in the language employed is entitled to consideration. ( Mullarky v. Sullivan, 136 N.Y. 227, 231.)
We have examined the cases cited by the appellant, and none of them is a precedent. They are, for the most part, decisions which declare familiar rules of construction, and apply them to the particular language up for interpretation or construction; but the various expressions either imply plain contingency, or are contained in the same sentence, or have not to be considered with other expressions of the testator which take the case then in hand without the rule.
The judgment should be affirmed.
All concurred, except BARTLETT, J., absent.
Judgment affirmed, with costs.