Opinion
Argued March 4, 1889
Decided April 16, 1889
D.C. Barnum for appellant. Roy C. Webster for respondents. Satterlee Yeoman for commissioners of Mount Hope Cemetery, respondents.
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 appointment 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 lifetime, 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 real estate, and entertained a desire that beneficiaries other than those first selected should share 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 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 of 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 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 increase 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.
Judgment accordingly.