| N.C. | Jun 5, 1860
The question in this case arises upon the construction of the will of Placebo Houston, which the executor therein named submits to this Court for protection against the conflicting claims of the parties interested. The portions of the said will material to the consideration of the case are as follows:
"Item 2. I will and direct that after the payment of my debts, all the rest of my estate, both real and personal, shall be equally divided (402) among my living children and the children of my deceased children, the child or children of a deceased child taking one share, which their parent would have taken had he lived, to be equally divided among them when such deceased child has left more than one child surviving. In making this division, each child is to account for all advancements since they came of full age."
"Item 3 proceeds to limit the share of a daughter, Mrs. Motz, taken under the preceding clause, to her sole and separate use during her life, and then to her surviving children, equally to be divided.
The fourth item limits the share to be taken under the above (second) clause by the five children of a daughter, Sarah Louisa, to the survivors on the dying of either without child or children.
Item 5 provides that the one-fifth which will, by the second clause of the will, fall to John Augustus Houston, son of Augustus C. Houston, on his dying under age without wife or child, is to be divided among the testator's surviving children and the children of such as are dead (takingper stirpes).
The will is dated on 2 March, 1852. To this will is attached a codicil, dated 3 March, 1852, which is as follows:
"Codicil to the foregoing will:
"Whereas, I, Placebo Houston, have made my last will and testament in writing, bearing date 2 March, 1852, and thereby made sundry devises and bequests, according to the then existing circumstances of my estate, but which circumstances have now materially changed, I do, by this writing, which I hereby declare to be a codicil to my said will, to be taken and construed as a part thereof, will and direct, and give to *317 my daughter Lucy M. Motz one negro man, Osborne, Kissey and her increase, and William. Also to my daughter Louisa Rhinehart's children, Amy, Hetty, and their increase. To my daughter Mary Cecilia Dalton, Cynthia and Carolina and their increase; Sally and her increase, and Mary, to be valued, and if a surplus, to be refunded to the estate. To To my son Thomas F. Houston, Dick and Alexander, Conda, Eliza, Tabitha, and their increase. To my grandson John (403) Augustus Houston, the sum of $1,000, including his interest in the money for the jack, yet to be collected; and should he die before the age of 21 years, his property to revert back to my children, the said Augustus having no further interest in my effects. My real estate to be sold as my executors deem best for the interest of the estate, and the balance of my negro property to be left to the discretion of the executors, to manage as they may think best to promote the best interests of the estate, all of my stock and farming tools, household and kitchen furniture, blacksmith tools, loose plunder of every kind," etc.
The question submitted by the executor is, whether by this codicil, the bequest to John A. Houston of one-fifth in the body of the will is revoked by the codicil, and the said John A. is to be restricted to the $1,000, or does he take the latter sum in addition to the bequest of one-fifth part? The estate of the testator was a large one, and by making this codicil act as a revocation of the will, there would be a very great reduction in the interest given to John A. Houston and cause an intestacy as to the one-fifth intended for him, to which, as one of the next of kin, he would be in part entitled at all events. The pleadings involve the construction of the codicil and its effect upon the provisions of the will. Does the codicil revoke that provision which gives to the testator's grandson, John A. Houston, one-fifth part of the estate? Or has it simply the effect of naming the slaves which he had before put into the possession of some of his children, and which the will in general terms directs to be accounted for as advancements and of giving to John A. Houston $1,000, including his interest in the money for the jack?
The difference in these two results is very great, and it may be (404) that we have not been able to comprehend the meaning of the testator. If so, it was his misfortune not to have expressed it in direct terms so that it could be understood. All we can do is to attempt to arrive at his intention according to the established rules of construction. By the aid of these rules, after giving to the subject much consideration, we are of opinion that the latter is the proper construction. *318
"A codicil is a supplement to a will, or an addition made by the testator and annexed to and to be taken as a part of the testament, being for its explanation or alteration, or to make some addition to or substitution for the former disposition of the testator." 2 Black. Com., 500. "In dealing with such cases, it is an established rule not to disturbthe dispositions of the will further than is absolutely necessary for the purpose of giving effect to the codicil." 1 Jarman on Wills, 160, and the cases there cited.
To give to the codicil under consideration the effect of revoking the will in respect to the disposition made of one-fifth part of the testator's large estate, and of cutting off his grandson, to whom he had given that fifth part, so as to allow him only $1,000, which is to include the amount to which he was before entitled on account of the jack, and of leaving this fifth part undisposed of, would be very greatly to disturb the dispositions of the will, and cannot be justified by any rule of construction, unless direct words be used to express that such is the meaning of the testator.
The codicil begins by setting out that the will "made sundry devises and bequests according to the then existing circumstances of my estate, but which circumstances having now materially changed, I do, by this writing, which I hereby declare to be a codicil to my said will, to be taken and construed as a part thereof, will and direct, and give to my daughter Lucy," etc. This announcement prepares one to look for great results, but when taken in connection with the fact that the will was executed the very day before the codicil was made, so that there was no time for the "existing circumstances of the estate to have (405) materially changed, and with the dispositions made in the codicil, it is obvious that it is in truth a "mere preamble," which the man who was writing the codicil had taken from some old form that he had seen or had then before him, and consequently is not deserving of very great weight in putting a construction upon the disposing parts of the instrument.
In looking at the clause of the codicil which gives rise to the difficulty, we find enough to create perplexity as to the meaning, but not enough to satisfy the mind that there was an intention to revoke. After giving the $1,000, it proceeds, "And should he die before he arrives to the age of 21 years, his property to revert back to my children, said John Augustus having no further interest in my effects." "His property" can hardly refer to the $1,000 because that is not the way we usually speak ofmoney; and if it refers to the property which he takes under the will, and there is nothing else to which it can refer, it is a recognition, instead of a revocation, of the provision made for him by the will, and the words "having no further interest in my effects" may be satisfied by *319 supposing them to refer to the fact that both by the will and the codicil, the legacy given to John A. Houston is subject to a limitation over if he should die before the age of 21 without wife or children, in which event he would have no further interest in the testator's estate. At all events, these words are of too doubtful an import to justify the conclusion that the testator intended to revoke his will, made only the day before, as to one-fifth, so as to leave that part undisposed of, and consequently to be distributed among his next of kin, in which distribution his grandson, whom it is his supposed intention to disinherit, would take one-fifth part of this undisposed of fifth part, which leads to an absurdity. These considerations and the well-established rule that a will and the codicil should be so construed as to make them stand together, unless the words forbid it, lead us to the conclusion that the codicil does not amount to revocation.
There will be a decree declaring that, in the opinion of this (406) Court, John A. Houston is entitled as well to the one-fifth part given him by the will as to the $1,000 given him by the codicil.
PER CURIAM. Decree accordingly.
Cited: Jenkins v. Maxwell,
(407)