9 Pa. 374 | Pa. | 1848
Was the court below right in decreeing that the
There can be no doubt that the making of a codicil operates as a new publication of the will to which it is attached, or has reference, and, as a general rule, the effect is to make the words of the will speak, in respect to the persons and things named in it, as from the date of the publication, just as though it had then been made for the first time. Thus it has been held in numerous cases, that a general charge of debts and legacies on the land of a testator, will include legacies given subsequently by codicil: Hannis v. Packer, Amb. 556 ; Brudenell v. Boughton, 2 Atk. 272; Cox v. Basset, 3 Ves. 163; Rooke v. Worrall, 11 Sim. 216; and a will discharging all debts operates to release a new debt incurred between the date of the will and the last codicil, though there be no reference to such debt, and no express words of republication: Coale v. Smith, 4 Barr, 377. This is a conclusion of law not to he contradicted by any supposed absence of intention on the part of the testator. But like every other general and artificial rule applied in the construction of wills, it gives way before an ascertained adverse intent. Where such actual intent appears, the will • and codicil will he treated as distinct instruments, in order to give it effect, though in legal contemplation they are regarded as one testament. This distinction is very clearly pointed out in Fuller v. Hooper, 2 Ves. sen.; Belt’s Supp. 333, where a testator gave legacies to all her nephews and nieces except those thereinafter named. She desired her executors to look upon all memoranda in her own hand, as parts, or a codicil to her will; and bequeathed the residue of. her estate to the children of her sister, E. J. By a codicil, she gave legacies to other nephews and nieces. It was held that the children of E. J., the residuary legatees under the will were excluded from the general legacies, but that the legatees under the codicil were not, and wore entitled to both. In deciding the case, Lord
This distinction, showing that though, for some purposes, a will and codicil are to be regarded as making but one testament, they will not be considered as a single instrument where a manifest intention requires otherwise, is observable in most, if not all, the cases. Of this, Bonner v. Bonner, 18 Ves. 879, may be regarded as a signal instance. It was the devise of the trust of a term to pay the several legacies “hereby given,” and “the several other legacies hereinafter bequeathed.” In a subsequent part of the will, a few small legacies were bequeathed, and afterwards, by a codicil unattested, reciting that the legacies given by the will to the testator’s daughters were not an adequate provision for them, he gave each of them a further legacy of 8007, “in addition to the said legacies given them, respectively, by his said will,” and ordered that the codicil should be taken as part of his will. The bill was to have the additional codicil legacies charged on the term, the personal estate being insufficient. For the daughters it was urged that in the construction of the trust of the term, the “ legacies hereinafter bequeathed” must be taken to mean in the whole will taken together, including the codicil, which is part of the will, and making it to speak at the subsequent date, the intention being to incorporate the legacies of 8007 with the former legacies, as the latter were given in addition, &c. For the defendants it was insisted the legacies given by the codicil were not charged; that the charge of the legacies “ hereby given,” must be understood already given, and the subsequent words “ hereinafter bequeathed,” must be intended bequeathed by the same instrument, by which were given some other legacies. And of this opinion was the lord chancellor, who regretted the construction he was obliged to adopt, as very unfortunate for the daughters; but he could not declare the codicil legacies to be charged on the land, saying, “ Here is not a general charge of legacies.” This was but following in the track of Masters v. Masters, 1 P. Wms. 422, where it was held that though a
These adjudications, and others of a like character, show that questions like ours are questions of intention, as indicated by the language used. We are thus narrowed down to the inquiry, whether from the face of the will alone, or taken in connexion with the several codicils, an intent can be gathered to confine the distribution of the residue among the legatees named in the will proper ? It will scarce be denied, that on the 22d of October, 1829, the date of the original will, none others were contemplated by the testator. By the directions then penned, if the whole property to be left should exceed the sum of $168,000, the surplus was to be distributed among the different legatees then ascertained. This was a clear and undoubted bequest of the residue to them,, though conceived in terms somewdiat different from those usually employed to express residuary gifts. To these were given, in as
Nor do I see anything in the codicils at all inconsistent with this view. With the exception of the substitution of Miss Sergeant and Mr. Cleemann for two of the primary legatees, which worked
We are unable to discern anything in the codicil of November, 1840,- competent to shake our convictions upon this point. That part of it referred to for this purpose, is employed but to marshal the order of payment, beginning with the will, in which, in this respect, it makes no material alteration, and thence progressing through the codicils. But this is confined to the ascertained legacies. It professes not to intermeddle with the residue, and therefore contains nothing inconsistent with its primary disposition. Indeed, I think it perfectly apparent he had not this in his mind when this codicil was penned. His sole object was to give to certain persons certain sums, and to prescribe the order in which those sums should be paid. This he accomplished, but in doing so went not beyond a clear expression of the particular intent. In this there is no incongruity — nothing to mar the symmetry of the original scheme. It therefore falls within the principle already adverted to.
The general view I have taken is greatly strengthened by the fact that so late as 1840, the testator caused his will and all the codicils then at hand to be copied and republished; but not, as the
As, then, there is nothing in the various vhemoranda or codicils inconsistent with the primal disposition of the residue, and, certainly, nothing either expressly or by necessary implication repealing it, but, on the contrary, much to uphold and sustain it; we cannot concur with the decree below, letting in on the surplus fund all the codicil legatees. Our objection, however, is inapplicable to Miss Sergeant and Mr. Cleemann, so far as they are substituted for two of the original legatees. This substitution operates to subrogate them to all the rights of the partios first named.
It is, secondly, objected to the decree made by the Orphans Court, that it directs so much of the Cincinnati City stock bequeathed to Clarissa Pomeroy and others, as was adeemed or otherwise not in the possession of the testator at the time of his death, to be replaced for the benefit of the legatees. We think this objection is well founded. It is properly admitted, that, as originally given, these bequests wore specific, and so liable to a pro rata abatement in the event of a deficiency. This is conclusively shown by the cases cited on the argument, among which is our own determination in Blackstone v. Blackstone, 3 W. 335. But it is thought the codicil of November, 1840, confers upon these bequests a new quality, which protects them from the blighting influence of the ademption.
It is unquestionable that the republication of a will, either formally, or by annexing a codicil, will not restore specific legacies before adeemed, or otherwise not held by the testator. The power
The remaining inquiry is, whether the respective legacies of $5,000, given to the members of the Riley family by the codicil of November, 1840, are cumulative, and not merely a repetition of the stock legacies just mentioned ? Not being able to refresh his memory by an inspection of the separate pieces-of paper upon which the codicils were written, the testator begins by stating he believed he had made further testamentary provisions in the memoranda before referred to, as being in his fire-proof or secretary, in Philadelphia, for the family of his aunt, Hannah Riley. He then proceeds, “ Should I not have done so, then I give and bequeath to each of her children (naming them) the sum of $5,000.” By the will proper, he had before bequeathed to Mrs. Riley the income of $9,000, and directed the principal sum to be apportioned, after her death, among her married and unmarried daughters. This must have been the antecedent referred to by the word “ further,” as used in the codicil; for, though not a provision for every member of Mrs. Riley’s family, it was the only testamentary gift
In view of the partial failure of the stock bequests, the result of this construction may operate harshly. But the language is too plain to admit an alternative; and however we may regret it, we cannot help it.
But the last codicil sufficiently indicates an intent to give to each member of Mrs. Riley’s family; an intention "which, wo think, may be carried into effect without doing violence to the will, considered as a whole, or being driven to conjecture. By the stock bequest, no “ further provision” was made for Caroline Riley, Theodore Riley, and Mrs. Greenleaf; and they may, therefore, fairly be said to stand within the contingency contemplated by the testator, as giving title to §5,000 each. This is, perhaps, not literally the language of the will, but we think it is within its spirit. Properly interpreted, it may be taken to mean, “to those of the family for whom no further provision has been made, I give §5',000 each.” As I gather from the report of the auditors, the half-share in the house of Alsop & Co., bequeathed to Theodore Riley, by the codicil of July, 1840, was adeemed before the codicil of November, 1840, was made. Consequently, at that time, he was no further provided for; and from this it follows, there exists nothing to exclude him from participation in the last gift.
The legacies of §25,000, of which Mrs. Dana is to have the income during her life; of §15,000 for the use of Mrs. Clara Pomeroy; of §9,000 for the benefit of Mrs. Hannah Riley; and
Decreed accordingly.