Opinion
September Term, 1863
John H. Reynolds, for the appellant.
John K. Porter, for the respondents.
Although, as a general rule, a will of personal property is held to speak as if made at the time of the death of the testator, yet, where there is any thing in the nature of the bequest, or in the language in which it is made, to show that the testator intended to confine his gift to the subject of the bequest as it existed at the time of the making of the will, its construction will be governed by such intention. (8 Paige, 116.) Words of present tense have often, though not uniformly, been held thus to limit the subject of the gift. (1 Jarman on Wills, 278, 279.) My interpretation of the present will is, that the words, "from any charge I have made," show an intention on the part of the testator to limit the release to charges existing at the time when the will was executed.
A codicil to a will, however, amounts to a republication of the whole will, not revoked by the codicil, and under the interpretation above given to its language it must be held to speak, in regard to the release of charges, as of the time of the execution of the codicil. (1 Williams on Exec'rs, 175; 1 Hill, 590.) There is a peculiar property in the application of that rule to the present case, inasmuch as the codicil, by revoking "all that part of the sixth clause" of the will which provided for the payment of the testator's debts by his son Edward, revoked the whole of the sixth clause, excepting the provision releasing all charges which he had made against his children; showing, therefore, a clear intention on his part to keep that provision in force and to have it speak as of that date. The codicil was made March 20, 1855, after the execution of the first note, and that note at least was canceled, if the terms of the release were broad enough to include promissory notes.
Without attempting to define precisely what claims would be embraced by the words used by the testator, "any charge I have made against them, or either of them," I am of opinion that they can not be held applicable to promissory notes. An interpretation which should make the release include notes, would of necessity extend it to all debts and liabilities of the children to the testator. If it was the intention to make the release thus general, no reason can be given why general words were not used, instead of the restrictive ones which were employed. This argument derives additional force from the use, in the previous sentence, of such general words, viz. "all my just debts," in the clause directing the payment of the testator's debts by this defendant. It is said that this interpretation of the clause in question renders that clause nugatory, as there were no charges upon which it could operate if it did not embrace the notes. Such may be the result of our interpretation, as it does not affirmatively appear that there were any such charges, but as it is not proved or found that there were none, I think we can not, consistently with the rules heretofore adopted, assume as an established fact their non-existence. ( 21 N.Y. Rep. 550, 551, 552; 22 id. 324.) But if that fact had been affirmatively established, I should have still held that the release did not include promissory notes, because if notes only were to be released, the expression of that fact, simply, would have been so much easier and more natural than the language actually used, that the adoption of the present phraseology would, in that case, be unaccountable.
The only remaining question relates to the rejection of the defendant as a witness, to prove the consideration of one of the notes. The limitation upon the right of a party to testify in his own behalf, as the law stood at the time when this trial was had, was as follows: "A party shall not be examined against parties who are representatives of a deceased person, in respect to any transactions had personally between the deceased person and the witness." (Code, § 399, as amended in 1860.) The testimony offered to be given related to a transaction had personally between the testator and the witness, and was therefore directly within the prohibition of the statute.
The Judgment should be affirmed.
All the Judges concurring,
Judgment affirmed.