| N.Y. App. Div. | May 6, 1910
By the 2d clause of her will Ellen McLachlan bequeathed $100,000 to her executors in trust to receive the rents, issues and profits thereof and apply the same to the use and benefit of her niece, Alice Eleanor Moffat, giving the said niece a testamentary power of.appointment of the remainder and bequeathing it, in the event of the latter’s failure to exercise such power, to her child or children equally, and providing that, in case of the death of said niece intestate, without leaving issue her surviving, it should fall into and become a part of the residuary estate of the testatrix. By the 20th or residuary clause of her will.the testatrix"devised and bequeathed all the rest .and remainder of her estate in equal shares to the. Children’s Aid Society and to the Howard Mission and Home for Little Wanderers, the respondents.' Within two months of her death, which occurred on March 23, .1888, she executed a codicil, by the 1st clause of which she in terms revoked the 20 th or residuary clause of her will. She then made certain other changes and provided by the 9th clause of the codicil as follows:
“ All the rest, residue and remainder of my estate real and personal (if any) herein meaning to include any and every amount of any and all bequests,- bequests in trust and beneficial provisions herein-before contained (excepting only the provisions in.trust for my niece in the clause of my said will entitled second) which bequests or provisions may lapse or fail, so that were it not for this clause of my will and codicil I should die intestate as to the same or any part of the same I do give and bequeath the same to my niece Alice Eleanor Moffat, absolutely.
“ As to the said provision in trust in favor .of my. said niece in said second clause of my will contained I do provide that in case,, she shall not survive me, or having survived me shall die leaving no issue her surviving and having made no appointment as. therein allowed and provided, that the trust fund shall pass under and be distributed as provided by said twentieth clause (now revoked) of my said will which in such event and to the. extent of said trust fund, only I do revive and re-institute as a portion of my last will and testament.”
The said niece, Alice Eleanor Moffat, died intestate without issue on December 16, 1908. The decree appealed from adjudges that
The sole question presented upon this appeal is whether the respondents take under the 9th clause of the codicil or under • the residuary clause of the will, it being conceded by them that if they take under the codicil and not under the will the bequest to them is void for having been made within two months before the death of the testatrix. (Laws of 1848, chap. 319, § 6, as amd. by Laws of 1903, chap. 623.)
Standing alone, the 1st clause of the codicil absolutely revoked the 20th or residuary .clause of the will; and if the 1st and 9th clauses are to be read as separate and distinct provisions, the appellants are entitled to prevail on this appeal. But the codicil is a single instrument and all of its provisions aré to be construed together. The question is how did it affect the will. In one clause, the testatrix said that she revoked the 20th or residuary clause of her will. By another she said that she revived and reinstituted so much of the residuary clause as disposed of the remainder of the $100,000 trust. The effect of the two together, therefore, was to revoke the 20th or residuary clause, except in so far as it related to the disposition of the remainder of the $100,000 trust. The 20th clause of the will, therefore, stands un revoked in that respect, and the' respondents take under the will, not under the codicil. We are the more ready to adopt that construction from the fact that' it does not violate the spirit of the statute in question. In place of getting anything under the codicil, the effect of that instrument was to cut down the bequest to the respondents.
Mo doubt, as the appellant contends, for the purpose of construction, a will republished by a codicil is deemed to have been brought down to the date of the codicil, but that does not affect the question before us.
The decree should be affirmed, with separate bills of costs to the respondents who appeared separately and filed briefs, payable out of the éstate.
Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.
Decree affirmed, with separate bills of costs to respondents, payable out of estate.'