Opinion
Argued October 1, 1873
Decided November 11, 1873
Henry R. Selden for the appellants.
W.F. Cogswell for E.E. Sill, respondent.
The testator by his will, after making certain specific legacies, gave the residue of his property to the children of his deceased brothers John and Seth Ely, and of his sister Deborah Sill, one-third part to the children of each family, and directed that any debts owing to him by his brothers or sister, or their children, should be deducted from the share given to their children respectively, and that the amount due from each of the legatees, and from his or her parents, should be deducted from the proportion so given to him or her respectively. The codicil in terms revokes this provision of the will, and, instead thereof, makes the following provision: "I give and bequeath to the children of my deceased brothers John and Seth, and of my sister Deborah Sill, who may be living at my decease, the sum of $3,500 each, subject, however, to the debts of the several families, as provided in my said will; the payment to be made as fast as convenience will allow, in the settlement of my estate." This is followed by a gift to his nephew Ebenezer E. Sill (son of Deborah Sill) of the residue of his estate, accompanied by an expression of the testator's gratitude for the kindness of the nephew and his family to him during the latter years of his life.
The only question in the case is, whether each of the children of the testator's brothers and sister are entitled under the codicil to the sum of $3,500, or whether each class of children take that sum only.
Standing alone, and construing the words of the codicil without reference to the intent of the testator manifested in the clause of the will which he revoked, to distribute his property per stirpes, and to families and classes, and not to his nephews and nieces as individuals, the meaning of the codicil seems too plain to admit of doubt. The gift is, to each of the children of his brothers and sister, of the sum of $3,500; the testator does not use this precise arrangement of words, but the words used express the same intent and have the same meaning. The word each is a word of separation, and distinguishes the individuals composing the children of each family as the objects of the testator's bounty.
It is urged that the intent of the testator, manifested in the will, to give his property to the children of each family as a class, and not as individuals, should be regarded as continuing when the codicil was made, and should be held to control in its construction. Authorities and cases are cited, to the effect that a codicil is a part of the will, and that the dispositions of the will should not be disturbed by it any further than is necessary to give effect to the codicil. (1 Jarmin, 160; Doe v. Hicks, 1 Cl. and Fin., 20; Kane v. Astor, 5 Sand., 467; Westcott v. Cady, 5 J. Ch., 334; De Nottebeck v. Astor, 3 Kern., 98.) These are cases of implied revocation, arising from inconsistent dispositions in the will and codicil; and the rule was applied which obtains in the construction of all written instruments. The will is affected only so far as there is a repugnancy between it and the codicil. It cannot be supposed that the testator, in case of an implied revocation, intended to affect the will by the codicil any further than was necessary to give effect to the codicil. In all other respects the purpose and intent of the testator, manifested by the will, are deemed to be unchanged. But I know of no reason for ascribing to a testator, who has, in express terms, revoked a disposition made by the will, the same special or general intent, in making a substituted provision, which he had in making the original one. The presumption of a change of purpose arises from the fact of revocation, and at least no strained or unnatural construction ought to be put upon the codicil in such a case to conform the disposition made by it to the intent of the testator, manifested in a provision of the will which he has expressly annulled.
In Holden v. Holden (8 Vesey, 97), where a testator, by a codicil reciting a limited and specific purpose in making it, revoked the devise made in his will, declaring the trusts again with the proposed alteration, and confirming the will in every particular not thereby altered and revoked, it was held that the omission of one trust, although contrary, as the court believed, to the intention of the testator, could not be supplied. Sir William Grant said: "It is evident he (the testator) had a settled design to revoke, not using the word for alter, for he makes a new devise immediately to the same trustees, upon the supposition that the former is entirely gone by the words of revocation. It is clear that we must find in his new disposition everything that is to relate to these estates."
The departure by the testator, in making the codicil, from the intent indicated by the will, is in several respects strongly marked. The nephew was made the residuary legatee in place of the children of the testator's brothers and sister. The will made the distribution equal among the several families, making no discrimination, in terms, in favor of any of his nephews and nieces over the others, and placing them substantially on the same footing, the difference arising only from the different number of children of the several families. The codicil gives to the residuary legatee (construing it according to the natural import of the words used) $30,000 more than he would have taken under the will, a sum much larger than the legacies given to the other nephews and nieces of the testator. This disparity would be greatly increased by the interpretation adopted by the learned referee. Nor do I perceive any difficulty in adjusting the indebtedness charged upon the several shares, if the natural construction is adopted. The aggregate sum given to the children of each family will be subject to be diminished by any indebtedness of the parent to the testator, and the share of each child by any indebtedness of such child. This would not only be an equitable mode of adjustment, but is consistent with and gives effect to the language of the will. The share of each child will, in this way, be charged with his own indebtedness, and with his proper share of the indebtedness of his parent.
The judgment should be reversed, and judgment should be entered, declaring that, by the true construction of the will and codicil, each of the nephews and nieces, living at the death of the testator, take a legacy of $3,500.
All concur.
Judgment accordingly.