Opinion
July Term, 1851
George Wood, for appellants.
Daniel Lord, for respondent Bayley.
The fifth section of the will of the testator contains this provision: "As to all the rest and residue of my estate, real "and personal, whatsoever and wheresoever, I give and devise "and bequeath the same, in three equal parts to be divided, "as follows: One third part to my son Isaac, one third for the "use of my son James Barclay, and one third, in five equal "shares to be subdivided, to the children of my deceased "daughter, Mrs. Grace Bayley, or to trustees for their benefit." "The respondent was one of the children of Mrs. Bayley.
The language of this devise and bequest is sufficiently comprehensive to embrace all the estate of the testator, of which no specific disposition was made by the will in question.
In August, 1842, the year following the execution of the will, the testator published his second codicil. It recites that the testator, by the fifth clause of his will, had directed all his residuary estate "to be divided into three equal shares, and distributed "accordingly." It then states the death of James Barclay Roosevelt, one of the residuary devisees, without issue, and directs that "the said residuary estate of the testator, "instead of being divided into three shares, and distributed "as aforesaid, shall be divided into two shares, and be "distributed, one share to Isaac, and the other to the children "of Grace Bayley." The residue thus disposed of is admitted to be the same as that provided by the fifth clause of the will above mentioned; but the respondent insists that the testator did not intend to include in such residue the trust funds and reversions created by the second, third, and fourth clauses of his will. The answer to this suggestion is, that the language of the fifth section is sufficiently broad, as we have seen, to constitute it a general residuary clause, extending to all the property of the testator, whether in possession or expectancy, not otherwise appropriated. The testator has in effect so denominated it in the second codicil; for he there refers to the fifth item, as containing directions for the disposition, not of a particular residuum, but "of all his "residuary estate." We have therefore the language of the testator and his construction of its meaning, and both are opposed to the limitation claimed by the respondent.
The second codicil became a part of, and was a republication of the will, not only by operation of law, but according to the express directions of the testator, and the two must be construed together as one instrument. ( Barnes v. Crowe, 1 Ves. Jun. 486, Sumner's Ed. and note; Mooers v. White, 6 John. Ch. R. 375; Westcott v. Cady, 5 John. Ch. R. 344, and cases there cited.) The effect of the codicil was to modify the fifth section by changing the proportion of the residuary estate which fell to the share of Isaac, and the children of Grace Bayley respectively, from one third to one half, without changing the subject of the devise, or the persons of the devisees. The testator did not, as supposed by the counsel of the respondent, add to the one third of the residuary estate given to the children of Grace Bayley, by the fifth section, the one half devised to his son James by the same clause. On the contrary, the testator limited his action to a single subject, the residuary estate, as an entirety. He accordingly declared, in the second codicil, that it was his will, that his residuary estate, instead of being divided into three shares, and distributed to three devisees, according to the fifth section, shall be divided into two shares, and distributed to the two there designated. The latter provision became a substitute for and thereby repealed the former. Otherwise we must assume that the testator believed that he could divide and distribute the whole of the same fund, at the same time, in three parts, to three, and in two parts to two beneficiaries.
The sixth and seventh clauses of the will, upon which so much reliance has been placed by the respondent, are consistent with the view that the testator recognized the fifth section as a general residuary clause, and consequently that he did not contemplate intestacy, or in fact die intestate as to any part of his property.
The sixth clause directs that the particular residuum, in the possession and under the control of the executors, at the death of the testator, after setting apart so much of the estate as might be necessary to pay annuities, legacies, and debts, shall be divided among the "residuary legatees mentioned in "item fifth of this will, according to its provisions."
The seventh section, in like manner, directs the distribution of the reversionary interest in the property and trust funds created by the previous clauses, as the lives of the devisees, legatees, and cestuyque trusts should terminate respectively, "unto the same persons, in the same proportions as set forth "in the fifth item." It is true that the reversion in the farm, c., at Poughkeepsie, was thereby granted to a grandson, or his issue, in case he or they should survive the wife of the testator, to whom a life estate had been limited in the same property. If the contingency happened, the residuary estate would be so much diminished; if not, the reversion went to form a part of the general residuum, and with that be distributed in conformity with the provisions of the fifth section.
The main object of the sixth and seventh clauses above mentioned, was to compel a distribution of the different portions of the estate of the testator, from time to time, and whenever a division would give to the beneficiaries the possession and beneficial use of the shares allotted to them, respectively.
The sixth, accordingly, relates to property in possession of the executors, exclusive of trust funds, c.; the seventh to that in expectancy. And the two constituting, in the language of the will, "the whole residue and remainder of the "estate" (after satisfying special gifts) were at the prescribed periods, to be distributed among the persons, in the proportions, and subject to the trusts declared in the fifth or general residuary clause.
The views suggested, if correct, dispose of the question before us.
In March 1844, the third codicil was made and published. The testator therein declared "that by the fifth section he had "devised and bequeathed to James R. Bayley (the respondent), "a portion of his estate" — that the beneficiary "had "renounced the faith of his fathers," and he then proceeds "to annul the aforesaid bequest and devise," and gives to the appellants the portion so given by his last will and testament to the respondent.
If the testator had died after the second but before the publication of the third codicil, what share of his estate would have passed to James R. Bayley, by the fifth section of the will, modified as it then was, by the second codicil? Not a fifteenth, as originally given, but three-thirtieths of the residuary estate.
The learned court whose decision we are reviewing, say "that the codicil operated as an enlargement of the devise and " bequest contained in the 5th section of the will." Such is our opinion. So thought the testator; and when he alludes to a portion of his estate there devised to the respondent, he refers to the portion augmented by the operation of the second codicil. And when he directs that the appellants shall take the portion so given by his last will and testament, he means all that was given by the instrument, of which the codicil was an indispensable part.
The respondent would separate the gift bestowed by the fifth section, prior to the publication of the codicil, from what he terms the "increase" granted by the second of them.
The effect of this construction is first, to divide the second codicil from the original will, of which the testator declared, "it should be a part, to all intents and purposes." Second, it assumes that the testator having enlarged the devise in the fifth section by the second codicil, through accident or design, reinstated that section as it stood originally, for the purpose of depriving this devisee of the share there given, leaving him the "increase" bestowed by the second codicil to dispose of at pleasure. In a word, that the testator intended to deprive this beneficiary of a fifteenth, and leave him a thirtieth part of his residuary estate, to build up a faith which the donor deemed "erroneous and unholy," and this in the face of the express declaration that he did not deem it "just "that any part of the property which God had given him" should be thus appropriated. Such was not the will or the language of the testator.
Whatever may be thought of his motives in excluding the respondent from the list of beneficiaries, we must give effect to his intention, if plainly expressed. The respondent was undoubtedly honest in changing his religion — the testator may be presumed to be equally conscientious in adhering to his own. It is enough that he was the sole judge whether any part of his property should be at the disposition of a Catholic clergyman, or be applied to sustain a seminary professing to teach the doctrines in which the testator was a believer while living, and in the faith of which he probably died.
The decree of the superior court must therefore be reversed in the particulars appealed from, and a decree entered in conformity to the views above suggested.
In order to determine the controversy before us upon this appeal, it is necessary to ascertain in the first place what the respondent James R. Bayley would have been entitled to by the will taken in connection with the first and the second codicils; and then, how far the third codicil has deprived him of those intended gifts, and transferred them to the Theological Seminary as his substitute.
The will first makes provision for the widow in lieu of dower, giving to her the fee of certain real property and the absolute ownership of some personal property particularly mentioned, and also a life estate in certain other real property, viz., a house in town and a farm in the country; and the use during life of certain other personal property, together with an annuity of 5000 dollars, to be paid to her from the income of a sufficient portion of the estate, to be set apart for the purpose and managed as a trust fund by the executors during her life.
Next it provides an annuity of 800 dollars for a daughter, and another of 300 dollars for a widowed daughter-in-law of the testator, which are to be raised in like manner, by setting apart portions of the estate as trust funds to yield the amounts during the respective lives of the annuitants; and then follows the fifth clause of the will, which purports to dispose of all the rest and residue of the estate, real and personal, in three equal parts to be divided, — one third to the testator's son Isaac, in absolute ownership, one third to trustees for the use of another son, James Barclay, and the remaining third to be subdivided into five equal shares between James R. Bayley, Richard Bayley, Carlton Bayley, and William Bayley, and trustees for the use of Maria E. Bayley, all children of the testator's deceased daughter, Grace Bayley — one share to each, in fee. Although the words, "all the rest and residue "of the estate, real and personal, whatsoever and wheresoever," "as used in the fifth clause, are of sufficient import to carry everything not already disposed of, including the capital of the annuity funds and the remainders in the lands and other property given to the wife for life, yet it is very evident from the subsequent parts of the will that the testator has not used the words in that broad and comprehensive sense, nor indeed as embracing everything except those reversionary interests; for by the tenth clause we find him giving several pecuniary legacies, amounting in all to four thousand dollars, which must be paid out of the general assets in the hands of the executors, because no other mode of paying them is provided for; and the application of the assets to that object would be in conflict with the previous gift, if that is to be regarded as a gift of the general residue in the place where it is found. That it was not intended to include any reversionary interests in the property previously given and directed to be set apart for the benefit of his wife and daughter and daughter-in-law; in other words, that the fifth clause of the will is to be understood as disposing only of a particular residue, and not generally of "the residue" of the estate, is apparent likewise from the sixth, seventh, and ninth clauses of the will.
By the sixth clause, the executors are directed, as soon as conveniently may be after the testator's decease, and after having set apart so much of the estate as may be necessary for the annuities and the legacies afterwards mentioned, and the payment of debts and funeral expenses, to make a schedule and estimate of the rest and residue of all the estate, real and personal, and thereupon they are to proceed and make a division and distribution of the same among the residuary legatees (so called) who are mentioned in item fifth of the will, according to its provisions, c. The residue here spoken of is doubtless the same which is given under the like denomination by the fifth item, to be divided into three parts, and one of those parts into five subdivisions; and it is composed of all that remains of the estate over and above the annuity funds and the legacies, debts and funeral expenses, not including however any of the property in which the wife's life estate was given. The gift by the fifth clause therefore is to be understood as a gift of such portions of the estate only as were divisible by the executors immediately after the death of the testator, and as not extending to any of those reversionary interests which appear to have been reserved for a subsequent and separate gift. Accordingly we find in the seventh clause that all those interests in remainder are there disposed of, with but one exception. The exception is of the family plate, which is the subject of a particular bequest, by the ninth clause of the will, after the wife's use of it shall have ceased by her death. It is then to go to the sons Isaac and James Barclay, and to the granddaughter, Maria E. Barclay, in equal shares, differing in the latter particular from the disposition made of other parts of the property by the seventh clause.
The seventh clause disposes of the fee of the real property in which the wife has a life estate, and of the capital of the funds or property ordered to be set apart for the purpose of the annuities; but not all to the same persons. The remainder in fee of the farm, with the stock of cattle, farming utensils, and other property upon it, are given to a grandson (the son of Isaac), with a limitation over to his lawful issue, in the event of his death before the death of the tenant for life, and if no issue, then to the persons taking the residuary estate, c. The remainder of all the other property, on the dropping of the lives is given "to the same persons, in the "same proportions and shares, and subject to the same trusts "as the residuary estate (so called) as mentioned and set forth "in item fifth of the will."
Although the same ultimate disposition is here made of all this last mentioned property as is made of property by the fifth clause, yet both clauses appear not to relate to the same property indiscriminately; but rather to separate and distinct parcels. Indeed, they constitute separate gifts. The first is of parcels of property which can be handed over at once to the beneficiaries to whom they are given, upon a division and distribution to be made among them; the other, of portions of the estate set apart to answer special purposes and to await the happening of events which may be quite remote before any such division and distribution can be made; and though in a relative sense, both parcels may compose a residue of the estate, yet I do not see how it is possible to understand the fifth clause when read in connection with subsequent parts of the will, as embracing all that had not been previously devised; or how in the face of the distinction which the testator has made between the gifts by the fifth and the seventh, we can say that both relate to the same subjects of bequest, and that the latter is but declarative and confirmatory of the former in respect to the property given.
It follows, therefore, that under the denomination of "all "the rest and residue of his estate," c., as given by the fifth clause of the will, the testator intended only such property as was numerically different from the property he had previously specified in the gifts to his wife and his daughter and daughter-in-law, and such as should remain after the debts, funeral expenses and pecuniary legacies were all satisfied. According to this construction, James R. Bayley would have been entitled under that clause of the will, to a fifteenth part of the property, real and personal, which the executors were authorized and directed to distribute as soon as might be after the testator's decease. All given to him beyond that he would take by virtue of the gift in the seventh clause.
The codicils are next to be considered.
The first codicil adds one thousand dollars to the wife's annuity, rendering it necessary for the executors to increase the fund or capital to be set apart for the annuities, and consequently lessening the amount in their hands for immediate distribution.
The second codicil was intended to produce a more important change in the division of the estate. James Barclay, one of the sons, had died, and to prevent a lapse of the devise of one third of the estate originally intended for his benefit, this codicil appears to have been made; but I think, with the court below, that it has failed to accomplish all it was probably designed to accomplish — that is, it fails to dispose of the share in all the property which the deceased son would have taken by the will, had he lived. Unfortunately, perhaps, for the intention of the testator, in framing this codicil, it only speaks of the fifth clause of the will as the clause by which he had directed all his residuary estate to be divided into three equal shares and to be distributed; and in consequence of the death of his son he directs that his said residuary estate, instead of being divided into three shares, shall be divided into two, and be distributed as follows: one half to his son Isaac, and the other to the children of his deceased daughter, Grace Bayley, in the same manner and subject to the same restrictions and trusts in respect to Maria E. Bayley and the share she will receive by the codicil, as is declared in the fifth clause in regard to her; and he devises and bequeaths the said residuary estate accordingly. Throughout this codicil, the residuary estate spoken of is the residuary estate embraced by the fifth clause of the will; and unless we reject all mention of the fifth clause in the codicil, we cannot apply the words residuary estate to any other than the property which was so denominated in the fifth clause itself; which, as we have already seen, is a particular and limited residue.
The consequence of thus restricting the operation of the codicil to the gifts by the fifth clause, leaving the one third of the residue and remainder devised by the seventh clause untouched by it, is a lapse of the latter devise, in the event which has happened, viz.: the death of the son, James Barclay. As to which, therefore, there is an intestacy, and it passes to the heirs and next of kin, in the same manner as if no will had been made, except that the widow cannot participate, having accepted the provision made for her by the will, which are declared to be in lieu of dower and in full satisfaction of any distributive share and of all other claims upon the estate. But for that election she would be entitled. ( Van Kleeck v. Dutch Church, 20 Wend. 457.)
This is not the case of a revocation by the codicil, or of such a devise of the residue of an estate, as carries the property to the surviving residuary devisees, within the principle of Kip v. Van Cortlandt, (7 Hill, 347.) The gift of the one third of the family plate to James Barclay, by the ninth clause of the will, is in the same situation, and that portion of the property also on the death of the wife goes to the next of kin.
We come now to the third and last codicil by which the right of the appellants has been created, and which gives rise to the question how far the respondent, James R. Bayley, is cut off and the appellants are substituted as the devisees.
The third codicil, like the one preceding, refers to the fifth section of the will as the section by which the testator had devised to the grandson a portion of the estate. No other part of the will is mentioned. It then states the cause of his making this codicil, and it annuls "the aforesaid bequest and "devise to the said James R. Bayley," and gives and bequeaths "the portion so given him by the will to the Union "Theological Seminary,"c., and to their successors and assigns. The reasons assigned for making this codicil might readily enough induce a belief that the testator intended to deprive this grandson of all participation in the benefits of his property. The proscriptive language used towards him, and the aversion, if not abhorrence, with which the testator appears to have looked upon the new faith he had embraced, and the new ecclesiastical association he had formed, and the dread of any of his property being used to build up a form of worship which he deemed worse than erroneous, would seem sufficient to induce a belief that the testator must have intended a complete disinherison of this grandson; but it may be, as his counsel had suggested, that the testator thought only to deprive him of that immediate benefit, which would result to the children and grandchildren by the distribution of that portion of the property which he had directed should be made as soon as conveniently might be after his decease; and not of that which would arise from a division to be made at a more remote period, when the life interests should cease, and when the remainders should vest in possession, and become distributable. The intention is to be gathered, however, from the whole instrument — the codicil, and from what is there expressed, not from probabilities merely, or conjecture. It is to be sought for in the words used, and when the words themselves convey a meaning which is plain and intelligible, there is no room for intendment different from the meaning so expressed. Evidence of an extrinsic character, or from circumstances, is admissible for the purpose of explaining the meaning of words and of pointing their application, when they are of doubtful import; but such evidence is not admissible for the purpose of showing what a testator actually intended as an independent fact, aside from the words used, for this might lead to a contradiction of his words. ( Wigram on Extr. Ev. 7, 65; 2 Cowen Hill's Notes, 1384, 1425; 5 Barn. Adolph. 129.)
The operative words of this codicil are confined to the fifth clause of the will. They refer to no other parts of it. The gift revoked by it, so far as James R. Bayley is concerned, is the gift created by that clause, and the property which he would have taken under or by virtue of that part of the will, enlarged as it is by the second codicil, is the same property which is given over to the Theological Seminary in his place. So expressly referable is the language of the codicil to that particular bequest and to nothing else, that we are not at liberty to extend its application to any other. There is no room for explanatory evidence of any sort in regard to the words used, by which we can give to them a more general meaning. The circumstances which led to the making of the codicil and the motives by which the testator was actuated, might produce a different conclusion were the operative words of the codicil less precise and unequivocal, or in any respect open to construction, but those circumstances cannot be allowed to control the effect of words which admit of no ambiguity and require no interpretation. However reasonable the supposition that the effect thus given to the codicil falls short of the testator's real intention, and that he has labored under a mis take in regard to the comprehensiveness of the fifth clause of the will, or that there has been some accidental slip in the use of too few or too many words in framing the codicil, yet we cannot allow our conjectures to prevail, although they may appear to us well founded. If the testator has intended more than we can attribute to this last of his testamentary acts, it is a misfortune which can only be regretted, but cannot be repaired. ( Holder v. Howell, 8 Ves. 103.)
A very recent case in the English common pleas has just fallen under my observation, which serves to show that the plain import of words used by a testator must be adhered to in expounding the will, although the court might be convinced that the testator did not foresee the effect they might have to thwart his intention.
It is the case of Doe ex. dem. Blakiston v. Hazlewood, decided January 30, 1851, and published under the head of recent English decisions. (Monthly Law Reporter, Boston, for June, 1851, vol. 4, N.S. p. 76.)
There a testator by his will devised an estate to his wife for life, remainder in fee to his nephew, with a proviso that in case the testator's wife should at his decease be enciente, the devise to the nephew was to cease, and the child was to take the remainder in fee. At the time of making the will, the testator had no child. He was laboring under an illness which he supposed would prove fatal to him. He, however, recovered from that sickness. A child was afterwards born to him in his lifetime. He then made a codicil devising after acquired property to such child. The wife was not enciente at the death of the testator. It was held that the child born in the testator's life time had no estate under the will, and as there was no posthumous child, the devise to the nephew took effect.
Cases were cited to the point in behalf of the child, that the court should not adhere to the strict meaning of the words, but should give effect to the testator's intention; a different state of things having arisen from what was contemplated by him at the time he made his will. White v. Barber, (5 Burr. 2703,) was strongly relied on, but held not to be law.
For the nephew it was contended that courts are not to conjecture what the testator intended, but are to construe the will according to the intention as collected on the face and from the language of the instrument. Jervis, Ch. J. observed, "the rule is clear that the intention must be apparent on the " face of the will, and that there should be words used capable "of carrying that intention into effect. The intention at "the time he made the will was to provide for a posthumous "child. The court could not depart from the then existing "intention, and infer that he intended moreover by that will "to provide for children to be born in his life time, if the "event he then contemplated should not happen."
Maule J. in the course of his remarks says, "suppose such "an intention to be ever so clearly evinced — suppose a recital "in a will of such intention, yet if there be no apt words "used to provide for it, the answer will be quod voluit non "dixit. Even if a testator had recited at the end of his will "that he had provided for all his children, still unless there "were some words which could be construed to provide for "them, the court could not give effect to his intention."
Creswell J. is to the same effect, when he says, "and even "if we were to imagine that the testator did intend to provide "for all his children (not confining his will to a posthumous "child,) I cannot say that the words used are sufficient to accomplish "it." Williams J. concurred.
The views which I have thus far presented of the will in question and the several codicils are substantially the same as those taken in the elaborate opinion delivered in the court below, on which the decree appealed from is founded. There is one point in the case, however, about which I am led to differ from that learned court, and that is, in regard to the addition made by the second codicil to the shares given by the fifth clause of the will. By the second codicil the shares of all the grandchildren under the fifth clause, including James R. Bayley, is increased from the fifth of a third to the fifth of a half, or in other words from a fifteenth to a tenth of the whole of that part of the estate. The opinion of the court below holds (and the decree is so,) that the Theological Seminary is only entitled to the original fifteenth part, and not to the addition made to it by the codicil, for that still belongs to James R. Bayley. This is correct, provided the revocation and the gift over by the third codicil are restricted in their operation, not only to the fifth clause, but also to the original share which the grandson would have taken under or by virtue of that clause. I agree to the first part of the proposition and have shown my concurrence in that view of the third codicil so far as this, viz., that it is confined to the gift made by that clause to James R. Bayley, and cannot be extended to other gifts. But the question now is, what is the gift by the fifth clause as it stood after the second codicil was made? Does it not include by the necessary effect of the codicil, the enlargement thereby made to the shares, or is the latter a new and distinct gift by the codicil, while the gift by the fifth clause remains as it was originally made?
The fifth clause is not revoked or superceded by the second codicil. If it were, the third codicil would be nugatory. It remains therefore as a substantive part of the will, and by it the so called "rest and residue of the estate" is given. The gift is of an entirety, "to be divided" however into three equal parts, and one of these parts to be subdivided into five shares. Then comes the codicil reciting that by the fifth item the testator had directed all his residuary estate to be divided in that manner, and distributed, c., and that his son James Barclay, to whom or for whose use one of the shares was given, having died leaving no lawful issue, he therefore directs that instead of three shares his said residuary estate shall be divided into two, and be distributed so that his son Isaac shall have one, and the children of his deceased daughter Grace the other — the latter to be divided among them in the same manner and subject to the same restrictions and trusts, c. as declared in the fifth item. And this is followed by an express devise and bequest of the said residuary estate accordingly.
Now when we consider that the making of a codicil in the manner and form of this codicil is a republication of the will, bringing it down to the date of the republication, and making it in effect a new will from that time, the codicil forming a part of it — for in a general sense a will consists of the aggregate contents of all the papers through which it is dispersed (1 Jarman on Wills, 172 ; Williams on Executors, 108) — there can be no impropriety in saying that this codicil, operating only upon the fifth clause, becomes incorporated into and identified with it, making it speak from that time as the clause of the will by which that part of the estate is disposed of in equal moieties, and one moiety subdivided into minor parts; so that there is in effect but one gift, as was originally contemplated by this part of the will, though in different parcels, owing to the death of one of the intended devisees. It appears to me therefore that we shall do no violence to any rule or principle of law, nor to the language of the codicil, but that we shall consult both by holding that James R. Bayley's augmented share under the fifth clause and the second codicil, combined, is taken from him and given over to the Theological Seminary.
Upon this view of the case, the decree appealed from would be modified, so as to give the appellants the one-tenth instead of the one-fifteenth part of all that portion of the estate mentioned in the decree. In other respects, and subject to this modification, I think the decree should be affirmed.
A majority of the court concurring in the opinion of GARDINER J., a decree was made in accordance with the positions of that opinion.