
    Jeannie T. Hard et al., Administrators, et al., Resp’ts, v. Leurendus B. Ashley et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    1. Will—Construction of—Effect of codicil.
    Testator devised to one W. “ the use of my farm, on which she now resides, * * * during her life, and at her death I give and devise the said farm in fee to her children, then living, in equal shares.” ]By the fifth clause he gave his residuary estate “to the same parties, in the same ratio and proportion as are given and specified in the foregoing bequests,” and for the purpose of such apportionment fixed the value of the farm at $15,000. By the second clause of the codicil he revoked the bequest of the farm to W. and her children. Held, ihat the codicil did not revoke anything but the bequest of the farm, and that the estate should be distributed upon the basis of the proportion which the previous bequest to each legatee bore to the aggregate amount of the specific legacies given.
    
      2. Evidence.
    Defendants, a husband and wife, who were legatees under the will, and had made an agreement with plaintiff’s intestate, also a legatee, by which there was to be a division of the property other than that made by the will, sought, in this action for an injunction, to avoid the effect of such agreement by showing that they were induced to sign it by false representations as to material facts made by plaintiff’s intestate, each testifying to hearing the representations made to the other. Held, that as the evidence was received subject to a motion to strike it out, and no motion was made, or exception taken to the rulings of the court, the admissibility of the evidence could not be reviewed, and that evidence that they beleived such representations was improperly rejected by the referee.
    3. Same—Code Crv. Peo., § 829.
    Such evidence was not incompetent, as involving a personal transaction between the witness and the deceased, under Code Civ. Pro., § 829.
    Appeal from judgment of supreme court, general term, fifth department, affirming a judgment for plaintiff entered on judgment of referee.
    This was an action to compel an accounting by the executor, and for a distribution of the estate in his hands.
    
      Theo. Bacon, for app’lts; P. M. French and W. A. Sutherland, for resp’ts.
    
      
       Reversing 25 N. Y. State Rep., 439.
    
   Gray, J.

The first observation we make is with respect to the bringing of this action in the supreme court. There was no reason for resorting to another forum than that established by the statute for the final settlement of an executor’s accounts. Ho objection appears to have been taken on the record. If it had been made, a grave jurisdictional question would have been presented. We do not wish to be understood, however, as assenting to this procedure. These proceedings belong by law to surrogates’ ■courts; which were constituted to take jurisdiction of them and the powers of which are appropriate and adequate for the purpose.

One of the questions, brought up by this record, arises upon the appeal of Zipporah Wilcox and it relates to the effect of a •codicil upon her rights as a residuary legatee under the will of Isaac Ashley. It revoked a bequest made in the will to her and substituted, in lieu thereof, a gift of a different value. Testator had made various bequests of money and of different kinds of property in the earlier clauses of his will, and by the fifth, a residuary clause, gave his residuary estate “ to the same parties, in the same ratio and proportion as are given and specified in the foregoing bequests." For the purpose of establishing such proportions, he valued the real estate, comprised in the bequests, at certain stated sums. The effect was to create, for the purposes of a division of the residuary estate under that clause, sixty-four parts. Mrs. Wilcox, by the second clause, was given the use of a farm for life, with remainder to her children, etc., and, as that farm was valued at $15,000, her share as a residuary legatee would have been fifteen sixty-fourths. But the testator subsesequently made a codicil, the second clause of which reads as follows:

Second. I did, by said last will, give to Zipporah E. Wilcox, of Greece, Monroe county, H. Y., the use of my farm in said town of Greece during her life, and at her death did thereby give the said farm,, in fee, to the children of said Zipporah E. Wilcox, then Jiving, in equal shares. And in lieu, and instead of said bequests, I do hereby give the said Zipporah E. Wilcox and her heirs $8,000, payable as soon as conveniently may be after my death, but not until the same and the other legacies by the said will, not herein revoked, can be paid by avails of the sale and disposition of my real estate without sacrifice in the sale thereof.”

This provision was held below to operate as a complete destruction of Mrs. Wilcox’s rights to share in the residue. It was there deemed to evidence a radical change of intention, and that as the residuary bequest was dependent upon the preceding bequest, with the revocation of that particular bequest the gift of a share of the residue fell. I cannot agree in that view; for it seems to me to deny effect and operation to a most important principle of construction in such cases. I refer to that which demands that a will and a codicil shall be taken and construed together, in connection with each other, as parts of one and the same instrument, and that the dispositions of a will shall not be disturbed further than to the extent necessary to give effect to the codicil. This has long been the settled rule upon which courts have acted Willet v. Sandford, 1 Ves., Sr., 186; Westcott v. Cady, 5 Johns. Ch., 334; Pierpont v. Patrick, 53 N. Y., 591; 1 Jarman, 176. That principle derives its strength, however, not from authority so much as from its own inherent force. The individual may execute any number of codicils, but all of the writings together constitute the will. The intent of the testator is then to be ascertained by a consideration of the whole, and the original testament is only affected so far as there is any repugnancy in a codicil. A codicil is intended to add to, modify or revoke the prior will in the respects which may appear; and it cannot have any other operation than may be necessary to give effect to its provisions as the later expression of the testator’s will.

It follows that it could not operate as a revocation of previous testamentary dispositions, unless by some plain direction, or by force of the clear import of language in some inconsistent or repugnant provision. Here the clause of the codicil in question does not in terms revoke anything but the bequest of the farm; but it substitutes for that which is thus revoked a gift of a sum of money. The language “in lieu and instead of said bequests” seems to me to be entitled to considerable significance and to warrant our reading the original will without other change in that regard than the mere substitution of the gift of $8,000 in money •for the gift of the farm. The use of the words “and her heirs” in the codicil, in connection with the gift of the money, should not be deemed to introduce any serious difficulty. By the will a farm was devised to Mrs. Wilcox for her life and at her death “ to her children then living, in equal shares.” It is very clear from the reading of the codicil which repeats that precise language that the testator took and used the word “ heirs ” in the sense of children ” and meant them to take the same interest in the substituted gift as they had in the gift which was revoked. The use of the word “ heirs ” was unnecessary to an absolute gift of the money to Mrs. Wilcox and everything points to its employment to cover the children as before; hence its technical purport must yield to the strong evidences of the testator’s meaning. The disposition of the residuary estate by the testator was its division among those certain persons to whom legacies had been previously given, and in that proportion to each which the stated value of his. or her legacy bore to the aggregate value of all of those legacies. 'The subsequent execution of a codicil only affected that disposition by lessening the amount of the legacy to Mrs. Wilcox from $15,000 to $8,000. That did not strike her out as one of the persons denominated by the residuary clause as a residuary legatee It left her in; but in lieu of the farm gave her a sum of money representing less in value than the farm was valued at This, change, effected by the codicil, operated to introduce a new divisor in the distribution of the residuary estate. In other words, in reading the will we take in the codicil and in place of the gift in the record clause of a farm valued at $15,000, we read a substituted gift of $8,000, and the disposition of the residuary estate proceeds upon precisely the same principle. I think in that way the clear and obvious purpose of the testator is given effect. TTis will spoke from the time of his death and then it was evidenced by the will and the codicil taken together. How is it affected by the codicil ? He has not directed a revocation of the residuary disposition made by the will and as that included Mrs. Wilcox, in order to revoke it as to her, we should have to say that a change by modification, through a codicil, of a bequest to her, which formed simply a measure of distribution of the residuary estate, operated to strike her out of the number of residuary legatees. That in my opinion is an impossible implication.

The case of Wetmore v. Parker, 52 N. Y., 450, is an authority in point; as is the well-considered case of Colt v. Colt, 82 Conn., 422, which is there cited with approval. In Wetmore v. Parker, the testatrix gave her residuary estate “to the several persons,, corporations and societies to whom I have hereinbefore made bequests and who shall be living and existing and able to take the same, in proportion to the amounts given and bequeathed to them respectively. A revocation by codicils, in part, of a legacy in the will to the Utica Female Academy and in whole of one to the Reformed Dutch Church, for reasons stated by the testatrix, was held not to affect the interests of those legatees in the residuary estate. It was said that the bequests were not dependent, in each case; and that “the reference to the first in the last designates the legatee and the amount, but as legacies they are independent. They are for different puiposes ; one for particular, the other for general purposes.” And Judge Folger refers to the rule that an expressed intention to alter a will in one particular negatives, by implication, an intention to alter it in any other respect.

The case of Colt v. Colt, in the Connecticut court, was cited as. precisely in point upon the question of whether the testatrix intended her residuary estate to go to those only who had unpaid or unrevoked specific bequests at her death. There the testator-bequeathed 500 shares of the stock of the Colt’s Fire Arms Company to his brother for life and made other bequests of the same stock. In the residuary clause he bequeathed his remaining stock in that company to the several persons “to whom he had hereinbefore given legacies of stock,” in proportion to the amount bequeathed. In a codicil he revoked the bequest of the 500 shares to his brother, “ for reasons growing out of his late unbrotherly conduct towards me.” It was held that the brother’s right to take under the residuary clause was not affected by the codicil. The ground taken was that the second legacy was not dependent upon the first, and therefore, nothwithstanding the reason stated, the revocation of the first legacy did not revoke the second legacy. These decisions proceeded upon the principle that where a devise is made of an estate, a revocation will not be implied, unless no other construction can be placed upon the language.

These cases are in point, and the principle of their decision should govern our conclusion here. I think, therefore, that the judgment of the court upon the question of distribution should direct it to be made upon the basis of the proportion which the previous bequest to each legatee bore to the aggregate amount of the specific legacies given and as, by the change in the amount of the bequest to Mrs. Wilcox, that aggregate amount became $57,000, her share in the residue would be eight fifty-sevenths.

The fact that one of the legatees, Lucretia Rice, predeceased the testator does not affect the question of distribution otherwise than, as the result of her death was to cause her legacy to lapse and to fall into the residue, her share in the residuary estate is undisposed of and passes to the next of kin. The lapse by death of the legacy does not disturb the proportions; and of course it •does not become distributable among the other legatees. As to that portion of the residuary estate the testator died intestate. Floyd v. Barker, 1 Paige, 482, and cases cited.

The other question presented by the record before us arises upon the appeal of Leurendus B. and Susan M. Ashley. They were legatees under Isaac Ashley’s will and, it seems, made an arrangement with the plaintiffs’ intestate, also a legatee, by which the property given by the will to the three should be differently divided; so that the intestate’s share, which was relatively quite small, should be largely increased and the shares of Leurendus and Susan Ashley correspondingly reduced. This agreement is set up by the plaintiffs as the basis of their right to recover in the distribution of the assets in the executor’s hands otherwise than as provided for their intestate in the will. The effect of the agreement is sought to be avoided by the defense of fraudulent representations in its procurement. Upon the trial, in order to prove what statements were made by the intestate to Leurendus and to Susan Ashley and which were at a time prior to the execution of the agreement, each of these persons was called as a witness, and after having testified to overhearing a conversation between the intestate and the other of them, was asked to give that conversation. The question in each case was objected to; but the evidence was received subject to a motion to strike it out. That evidence established the making of statements by the deceased for the purpose of inducing, through the fear of litigation. and through the hopes of gaining, by the promise of others releasing their shares in the residue, a compromise, as the result of which his share in thé assets should be increased and all opposition to the probate of the will withdrawn.

No motion appears from the record to have been made to-strike out the evidence of either of these witnesses, and, in the absence of exceptions properly taken to the rulings of the court, the admissibility of evidence received cannot become the subject of review in the appellate court, and the evidence must be allowed its usual and natural effect. Such being the condition of the case, the testimony of Leurendus and Susan Ashley that, at the time they signed the agreement, they believed and- relied upon the representations. of plaintiff’s intestate, was improperly rejected, and the exception to the ruling in that respect must be sustained. The representations had been proven in the case, which were of such a nature as to induce them, by the motives 'of fear of the results of a litigation and of the hopes of advantage to-them in a compromise, to agree to the arrangement proposed by the deceased legatee. The question then was as to whether these representations were believed in and relied upon when the agreement was signed. That was a question of fact, and, like all other facts, a matter of proof.' As evidence, its weight and influence are questions for the jury or referee. From the case of Seymour v. Wilson, 14 N. Y., 567, the competency of such proof has been recognized. The fact was relevant and material and the witnesses were conrpetent to testify to it, unless their evidence fell, as it is-insisted it does fall, within the prohibition of § 829 of the Code of Civil Procedure. Was it incompetent because it concerned a personal transaction between the witness and the deceased? I do not think so. What led to the making of an arrangement, and the negotiations which shaped it, had all taken place between the parties at a time prior to the execution of the contract. This-contract was the effect of the agreement upon which the minds of the parties had met in consent. When, therefore, it was presented to the witnesses for their execution, their belief or reliance in the statements which the deceased had theretofore made were relevant facts within their own knowledge and which the deceased could not have known or testified tó himself. If he were living he could not have contradicted their testimony in that respect.

As was said in Wadsworth v. Heermans, 85 N. Y., 689, “ the spirit and purpose of this provision of the Code is equality to prevent undue advantage; and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn.” If we are to give to the language “ concerning a personal transaction ” so broad a signification as to exclude the evidence of facts not constituting the transaction and not proving any communications between the parties, and which had nothing to do with their negotiations, we should be using the Code provision as an instrument to work inequality, and, therefore, injustice. The condition of the minds of the witnesses, when they consummated their agreement by executing the contract, neither proved nor disproved the personal transactions between them and the deceased. That had been proved, and the proof of their state of mind, as to belief in, or reliance upon, what they had been informed of, was not a matter of which the deceased could have had any knowledge and with which he was not concerned at the time. This case differs from Tooley v. Bacon, 70 N. Y., 34. That was an action for money had and received, and the defense was that the property was placed in the intestate’s hands for the purpose of defrauding creditors. It was held that the intent characterized the transaction and was an element of it, and proof of the intent in conveying property to the intestate was held properly excluded. I suppose it was considered that the proof of the intent in conveying would have been proof of the act itself. I think that case was very close, indeed, to the border line, and while, upon the particular facts, it may be deemed a controlling authority, we should not extend its control over a case like the present, where the excluded evidence would neither have affirmed, nor have negatived, nor have characterized the transaction. "We are not here called upon to decide upon the admissibility of the particular evidence constituting the proof of the misrepresentations of the deceased. It may be that it was not competent to prove them in that way; but, assuming that it was incompetent and inadmissible, if properly objected to, we should still reverse the judgment and order a new trial. Upon a new trial, it may be that sufficient and competent evidence may be produced to establish the defense to the agreement. At any rate, we cannot say that none such is possible or available to the appellants.

The judgment appealed from should be reversed and a new trial ordered, upon the appeal of Leurendus B. Ashley and Susan M. Ashley ; while upon tie appeal of Zipporah Wilcox the judgment to be entered should direct the executor to distribute the assets in his hands in accordance with the principle of our opinion.

All concur.  