108 Pa. 133 | Pa. | 1885
delivered the opinion of the court, January 5th, 1885.
By the original will of Edward Duff he gave and bequeathed to his daughter, Mrs. Anna W. Lewis, ten thousand dollars in cash; also all his stock in the First National Bank of Pittsburgh, and all his stock in the Pittsburgh and Birmingham Passenger Railway Company. After making other bequests
; In the second codicil to his will the testator, inter alia, declares “the’share and portioh-of my estate which by my said will,-1 have given to my daughter, Mrs. Anna W. Lewis, I direct shall be held by my executors in-trust to inyest and re-invest the same, and to pay to her during her natural life,the interest and income thereof, every six months, after deducting the expenses of the trust, and at and, immediately after her death,” remainder over to the children of his depeased son, George Duff, and .their issue. , , ,
The present contention is whether the trust created, by this, codicil applies to all the property previously bequeathed to Mrs. Lewis, or only to a part thereof. The appellant -contends that the trust does.not apply to the cash, a.nd to the bank and railway .stock, previously given to her. The correctness of -this position is to be determined by a fair interpretation .of the language of the codicil.
- It must be conceded as a settled rule .of construction that fill the provisions of a will shall stand which arp not inconsis-, tent with those of the codicil. To that extent only does the. latter operate as a revocation of the. former. The dispositions, of the former must not be disturbed any further than are absolutely necessary, for the purpose of giving effect, to- those of the latter : Jarman on Wills 162. A clear and. unambiguous disposition of property in the former cannot be revoked,by doubtful expressions.in the latter: Id. 168. ....
. A codicil in its practical effect is part.of the will, all making hut one .testament. Hence if there be any conflict, the’ latter disposition shall prevail.
i The very purpose of a codicil is to alter the will or to, modify its effect. In this codicil the testator so far modifies it as to change the ,use ■ of “ the share and portion ” of his estate, which he had previously bequeathed to Mrs. Lewis. He makes no reference to the character, value or items of the property Which hé had given her. ’ The language.is as broad and comprehensive as if it read “all the property” he had given her. It was-all the.share -or .portion orpartof his estate, which she was to receive,, as distinguished from the, shares and portions given to the other .devisees. The .main thought in the mind of the testator was to throw some safeguards around all the property which he intended, to devise and bequeath for the
The several words, share, part, portion, are very frequently rised as synonymous. When applied to property acquired from one’s ancestor, the word “ portion ” is the most comprehensive that can be used. It is broad enough to ipclude, and. is intended to cover all the property or estate thus received. Thus “portion” is defined in Bouv. Law Dictionary 350, to be that part of a parent’s estate, or of the estate of one standing in the place of a parent-which is given to a child. The language of the codicil imposes the trust on all that portion of the testator’s estate in which he intended Mrs. Lewis to have any interest. The word estate in a will is broad enough to carry everything, unless restrained by particular expressions : 1 Term Rep. 411; 2 Id. 656; Turbett v. Turbett et al. 3 Yeates 187. The devise of a testator’s “ estate ” includes not only the corpus of the property, but the whole of his interest therein : 3 Jarm. on Wills 31.
Mrs. Lewis was a widow and childless. The testator did not wholly revoke the bequests which' he-had .made to her. He merely changed the custody, and modified the use of the property.
We cannot give weight to the fact that the word “share” had previously been applied to the. residuary estate. We have shown it to be synonymous with the word “ portion.” If this be incorrect, then the word portion was intended to refer to other property than the residuary estate. This is just as damaging to the claim of the appellant as if the words were synonymous. If the word share was intended to apply to the residuary estate only, and the words have not the same meaning, then the word portion, which had not been applied to that particular estate, was intended for, other property,’ and if so was necessarily designed to cover the other estate or property which had been bequeathed to her.
It is not necessary to refer to the numerous English and American authorities which hold as a canon of construction that a clear gift cannot be cut down by any subsequent words, unless they show an equally clear intention. In applying this rule it is sufficient that the subsequent words indicate the testator’s intention to cut it down with reasonable certainty, and it is not necessary to institute a comparison between the two clauses as to lucidity: 1 Williams on Ex’rs 185. It cannot be cut down by any doubtful expressions in the codicil. The language of the .latter must be such as to clearly establish the modification claimed before such effect can be given to it. We concede these to be the settled rules of construe
We see nothing in the fact that the executors were authorized to sell the real and personal estate of the testator, and to hold her share and portion in trust for her, as aforesaid, to change the conclusion at which we have arrived: Rawle’s Appeal, 10 Out. 193. The learned judge committed no error i,n making the decree.
Decree affirmed and appeal dismissed at the costs of the appellant.
