Mason v. Smith

49 Ala. 71 | Ala. | 1873

PETERS, J.

— The main question in construing this will is as to the effect of the codicil, which revokes the donation to Sallie A. Boyd, on the legacy given to her in the body of the will. A codicil is a supplement to a will, or an addition to be taken as a part of it, made by the testator, by which the dispositions of the will are explained, added to, or changed. 2 Bla. Com. 500, mar.; 4 Kent, 531, mar.; 1 Stephens Com. 545. It is to be construed in connection with the body of the will. The whole instrument is to be taken together, and the body of the will is to be changed only so far as to let in the codicil. An expression in the codicil, of a determination to alter the will in one particular, negatives an intention to alter it in any other particular. Quincy v. Rogers, 9 Cush. 294; Bradley v. Gibbs, 2 Jones Eq. 13. It is, then, a mere alteration of the main disposition; and so far as this alteration goes, but no further, it revokes the will. This revocation occurs when it is apparent that the disposition in the codicil is different from, or inconsistent with, the disposition found in the body of the will; or it may be a revocation by express words. Brant v. Wilson, 8 Cowen, 56. But, in either case, the uniform rule is, not to disturb the dispositions contained in the body of the will, further than is absolutely necessary for the purpose of giving effect to the codicil. 1 Jarman on Wills, 160, 161, mar. and notes; Redfield on Wills, 362, §§ 34, 35, and notes. These principles are too well settled to need the. critical discussion of the cases on which they depend. 4 Kent, 531, mar. (11th ed.) notes.

The body of the will in this case gives the sum of four thousand dollars to Sallie A. Boyd. This was “ the donation ” to her, before the codicil was added. The manner of its payment, and the fund out of which it was to be paid, were specified in the body of the will. Then, the clause of the will in which this gift was declared not only fixed the amount of the “ donation ” to Mrs. Boyd, but it went further, and designated the mode and time of payment, and the fund out of which it was to be paid. ' The revocation by the codicil only includes “ the donation in the body of ” the will, and substitutes another sum in its stead ; that is, it revokes the gift of four thousand dollars, and gives Mrs. Boyd, in lieu of it, “ a proportionate share with the rest ” of the testator’s nieces; that is, a sum of money, to be ascertained in a manner different from that fixed in the body of the will. The codicil does not revoke the clause of the will making the bequest to Mrs. Boyd, but only “ the donation.” In this connection, the word. “ donation ” means gift simply, and not the clause of the will in which the gift was made. This is all the change that is required to give ef- ■ feet to the codicil. Beyond this limit, this court cannot go. 9 Cush. 291, and authorities, supra. This was the view taken of the case by the learned chancellor in the court below. It was correct.

I think it equally certain, that the legacy to Mrs. Boyd mentioned in the codicil is intended to be substituted for that mentioned in the body of the will. That mentioned in the body of the will is to be paid to her by Jas. B. and B. W. Mason, the complainants in the court below. A substituted legacy shall be raised out of the same fund, and subject to the same conditions, as the legacy for which it is substituted. Crowder v. Clowes, 2 Vesey, 449, 450, Sumner’s edition. The will recites that “ for and in consideration of the above,” that is, the legacy to Jas. B. and B. W. Mason, they “will see that my sister, Sarah A. Menifee, will be amply provided for, should she ever be so unfortunate as to have any cause for such protection ; and to Sallie A. Boyd they will pay four thousand dollars, one half at the settlement of my estate, and the other half twelve months thereafter.” The codicil changes only the sum to be paid, but none of the other particulars of the bequest. This clause of the will clearly imposes a personal liability on James B. and B. W. Mason to pay the legacy to Mrs. Boyd, unless they refuse to accept the gift to themselves. This they have not done. They take the legacy to them cum oner a (which is the legacy to Mrs. Boyd), and they must pay it. Besides, the fourth item or clause of the will disposes of the whole residue of the estate, and directs it to be equally divided between the testator’s brothers, James H. Smith and H. Y. Smith, if alive; if dead, to their children. If this clause of the will is carried into effect, nothing will be left to pay the legacy to Mrs. Boyd. There is no intention manifested in the will that her legacy shall fail; and it is not directed that she is to be paid out of the residue. It must, then, be paid as the four thousand dollars was to be paid, for which it was substituted ; that is to say, by James B. and B. W. Mason, the appellants in this court, and the complainants in the court below. The decree of the chancellor conforms to this construction of the will, and is, therefore, on this point, likewise free from error.

The chancellor’s decree is not impeached in other respects. It is, therefore, affirmed, with costs.