Opinion
March 12, 1909.
Alfred H. Holbrook [ Payson Merrill with him on the brief], for the appellant.
Allison Butts [ C.P. Dorland with him on the brief], for the respondent executrix.
The question involved in this case is whether the legacies of $5,000 to Sarah Appleby and Mary Bailey Dortic, bequeathed by the codicil, are substitutionary or accumulative. It is undoubtedly the general rule that the repetition of a legacy in the same instrument is substitutionary, and that the repetition of it by a second instrument, as in the case of a will and a codicil, is accumulative; but this question, like every one of construction, is one of intention to be determined from the intrinsic evidence of the documents themselves and the circumstances of the case ( Dewitt v. Yates, 10 Johns. 156; Southgate v. Continental Trust Co., 74 App. Div. 150), which is far from saying that extrinsic evidence may be admitted to show an intention different from that shown by the will itself.
Notwithstanding the general rule and the prefatory statement of the codicil that it is "to be taken as a supplement and addition" to the will, the internal evidence furnished by the will and the codicils conclusively shows that in making the second codicil the testator was engaged in substitution and not in addition. The codicil is complete in and of itself. Its evident purpose was to empower the executors to sell the real estate and perhaps to drop out one executor. The language of the will is repeated almost literally. Why that was done in place of merely making the desired changes is a matter of speculation. If one part of the codicil is to be regarded as "a supplement and addition" to the will, every part must be, whereas it is plain that much of it can only be substitutional, i.e., the provision for the payment of debts, the disposition of the remainders and the appointment of executors. Aside from the evidence already referred to the disposition of the remainders by the 5th clause of the codicil is conclusive. The language of that clause, quoted with but slight change from the similar clause in the will, is as follows: "My executrix and executors, after paying my funeral expenses, just debts and the legacies mentioned in the above items, shall divide the balance of my property into two equal shares." The words "above items" obviously refer to the earlier provisions of the codicil. After paying the debts and funeral expenses and the legacies mentioned in the codicil, the executors were required to divide the balance of the property into two equal shares and to distribute them as thereafter provided. The words used do not admit of a construction that the balance of the property remaining, after paying the legacies provided for in the codicil, in addition to those provided for in the will itself, should be divided; and thus the internal evidence of an intention to provide for substitution and not accumulation becomes conclusive.
The judgment is affirmed.
WOODWARD, JENKS, GAYNOR and RICH, JJ., concurred.
Decree of the Surrogate's Court of Orange county affirmed, with costs to the respondents payable out of the estate.