Opinion
Argued December 15, 1896
Decided January 19, 1897
Joseph Potter, F.A. Burnham and George Burnham, Jr., for appellant. William W. Buckley for respondents.
The scheme of the will was that the defendant should not take the title to any of the property left by the testator, either real or personal, but that she should have the entire income from all of it so long as she lived and remained his widow. In case of her remarriage, however, instead of the entire income, he gave her simply an annuity of $2,000. Whether she remarried or not, these provisions were made, and, if accepted by her, were to be in lieu of dower and every other interest in his estate. All that he did not give to his wife he gave to his four residuary legatees, being a brother, a nephew and two nieces. In other words, he gave the income to her during life, and the title to them, except that upon the contingency of her marrying again, he gave her a part only of the income during life, and all the rest of his estate, including both title and the remainder of the income, to them.
The scheme of the codicil, made seventeen months later, was not to take anything away from his wife that he had given to her by his will, but to give her something more. Hitherto he had given her simply income, but now he proposed to give her the title to a part of his property "in addition to the provision" made for her benefit in the will. Accordingly, by apt words to effect his purpose, he bequeathed to her all of his "household goods and furniture absolutely and as and for her own property and to be at her own disposal." This included all of his personal property, which was of no great value. But he did not stop there, for he wanted to give her the title to a part of his real estate in the same way that he had given her the title to all of his personal property. Accordingly, he said, as a part of the same sentence, for no period intervenes and the sense is continuous, "and also I do give, devise and bequeath unto my said wife, in fee simple, all the one equal third part of my real estate," and directed that these gifts should take effect whether she remarried or not. He then revoked the gift made by the will to his two nieces and gave their shares to his brother and nephew, the plaintiffs in this action, but for greater precaution he added, "saving and excepting therefrom the one equal third part of my real estate and the household goods and furniture which I have herein given, devised and bequeathed to my said wife, Emma Giles," thus treating the gifts of real and personal as alike in character and extent. Except as altered by the codicil, he confirmed and republished his will.
As the widow remarried, the question arises whether she took the title to one-third of the real estate charged, in connection with the other two-thirds thereof, with the provision for her annuity, or whether she took it the same as she did the personal property, "absolutely as and for her own property and to be at her own disposal." The argument in favor of the existence of the charge rests primarily upon the opening words of the residuary clause of the will, which are as follows: "And subject to this provision for my said wife, I do give, devise and bequeath my said estates to my brother," c. There was clearly no express charge, and, in view of the scheme of the will as remodeled and enlarged by the codicil for the benefit of the widow, and considering the nature and extent of his property in connection with the words used in amplifying the gift to her, we think that any implied charge was removed from the real estate devised to her. While a devise subject to a charge in favor of a third person is very common, a devise subject to a charge in favor of the devisee is such an unusual method of giving away property as to raise the question at once whether that was the actual intention. In this case it would be hostile to the general plan of the testator, when the object of the will is compared with that of the codicil. The object of his will was to provide for the support of his wife without giving her the title to any thing. The object of the codicil was to continue the provision for her support and at the same time to make gifts absolute and outright to her. In a single sentence he gave her two kinds of property "in addition to the provisions" for her benefit in the will. In giving her the first kind, which happened to be personal, he wished to leave no doubt of his intention to no longer limit her to the income, but to give her the property itself, free from any charge thereon, and accordingly he bequeathed it to her "absolutely as and for her own property and to be at her own disposal." Having thus disposed of the personal property he took up the other kind and disposed of a portion of that, saying, "and also I do give, devise and bequeath unto my said wife in fee simple all the equal one-third part of my real estate." There is nothing to show an intention to discriminate as to the nature or extent of the two gifts, except as the gift of the personal was by bequest, absolutely, and the gift of the realty was by devise in fee simple. The language used was appropriate to confer the highest title to both kinds of property, and by connecting the two gifts in the same sentence by the words "and also" he indicated, as we think, when the general scheme of his will is taken into account, an intention to make the latter gift in the same manner as the former. The primary meaning given by most lexicographers to the word "also" when used as an adverb, as it is here, because two conjunctions would not be used together, is "in the same manner," or "in like manner," or "likewise." It is also used with the meaning of "too," "farther," and "in addition to," but as the testator had already introduced the sentence by using the words "in addition to," it is probable that "also" was here used with the meaning first suggested. This is rendered still more probable by the keynote of the codicil, which is the intention of the testator to give the absolute title instead of merely the income, as previously given. As his estate was situated, the gift of one-third of the realty, subject to the charge of his wife's annuity upon the whole, would have been of slight practical value and an unimportant addition to the gift made by the will, as the entire benefit thereof might have been withheld from her during her lifetime. Its present and absolute enjoyment seems so inseparably connected with that of the personal property as to show an intention to give both in the same way, without discriminating in favor of or against either kind. He had no children, and both the will and codicil show that his first object was to provide for his wife. When he made his will the apprehension that she might remarry induced him to greatly reduce the provision for her benefit, if that contingency should happen, but when he made his codicil this apprehension was less active. He then wanted to be more generous to her, whether she married again or not, so he gave, "in addition" to his first gift, the personal property absolutely "and also" one-third of his real estate in fee simple. He thereby carried forward to the devise the words used to qualify the bequest and thus measured the extent of the gift. We do not agree with the learned General Term that "some error has crept into the codicil as it stands," or that the colon which separates the bequest from the devise was intended for a period, even if the word "and," with which the latter is said to begin, was written with a capital "A," because the words used indicate one continuous sentence, which is confirmed by the punctuation, as the testator left it. There is no occasion for changing the punctuation marks as he made them. The natural sense in which words are used, as it appears from judicial inspection, always prevails over both punctuation and capitals, which are regarded as such uncertain aids in the interpretation of written instruments as to be resorted to only when all other means fail. ( Ewing v. Burnet, 11 Pet. 41, 54.) When, as in the will before us, the punctuation accords with the sense, the use of a capital in the middle of a sentence must be regarded as accidental and should not be permitted to confuse a construction otherwise reasonably clear. A capital letter so used in a holograph will would have more significance than in one written, as this is said to have been, by a draftsman and read to the testator, who could not, of course, detect the difference from the sound.
The General Term placed great reliance upon Redfield v. Redfield ( 126 N.Y. 466), where it was held that a codicil will not operate as a revocation of a previous testamentary disposition beyond the clear import of its language. In that case the object of the testator was to induce his wife, from whom he had separated, to release her claim of dower as well as an agreement for her support, and it was accordingly held that an annuity given to her by will for that purpose and charged upon certain land was not revoked by a change of the devisees in remainder, as there was no express language to that effect and no substitute for the annuity, "which was to furnish the consideration for a release of her dower and was to be a substitute for his obligation to pay her $400 per year." The distinction between that case and this resides in the manifest intention of the testator and the object that he wished to accomplish. That was in the nature of an attempt to buy off a discarded wife, while this was a further provision for one, whom the testator termed "his beloved wife." In that case the codicil was not made with reference to the wife, for her name does not appear in it, but in this case the purpose of the codicil was to benefit the wife by giving her something "in addition to" the gift already made in the will. Nothing was taken back, but something was added, both of real and personal property, and each kind was given, as we think, in the same manner as an out and out gift, free from any charge for the benefit of the donee.
The judgment entered upon the decision of the General Term should, therefore, be reversed and the judgment entered upon the report of the referee affirmed, with costs.
All concur.
Judgment accordingly.