
    Aaron N. Newcomb as Executor, etc., and another, App’lts, v. Edward Webster as Executor, etc., and others, Resp’ts.
    
      (Supreme Court General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Will—Construction of—Codicil—Subsequent will—Effect of.
    The effect of a codicil is the republication of the will which it follows, and operates as a revocation or alteration of its provisions only so far as is: so declared or is clearly consistent with it. As far as their provisions permit they are to be construed together While a subsequent will does not revoke a former one unless it so declares or is inconsistent with it, there is a difference in the rule of construction applicable to it, and to a codicil because the latter purports to be supplemental to, and is a republication of the will, while the subsequent will may be treated as an independent testamentary instrument. The former must if it can fairly be done, he construed in connection with the will and in harmony with its provisions,. while the subsequent will, not necessarily subordinate in its. purpose to the former will, may be given a more comprehensive effect, but inconsistency to give it that effect must exist between the two wills, and . the latter operates as a revocation pi'o tamto only when the repugnancy is not co-extensive with the provisions of the former will.
    
      2. Same—Two bequests similar in nature made bt different instruments—Effect OF CUMULATIVE BEQUESTS.
    Where two bequests, the one in the will, the other in the codicil, are similar but not inconsistent, and are made by separate instruments, the fact that they were designed for the same purpose would render the latter cumulative rather than substitutional.
    8. Same—Intention to govern—How ascertained.
    The intention of the testatrix must be ascertained from the provisions of the instruments. The court cannot alter wills of testators or judge of their notions and purposes otherwise than by their acts as represented by their testamentary instruments.
    Appeal from judgment entered on decision of Monroe special term.
    The action is for the construction of the will and codicil of Angeline B. Walker, deceased. And it appears that she made her will of date, April 23, 1881, and a codicil of date, May 20, 1884; that she died June 1, 1884, and both the will and codicil were admitted to probate.
    By the will she gave:
    
      First. To her sister, Olive J Hatch, the use during life, of a house and lot, and directed sale after her death and the division of the proceeds between persons named.
    
      Second. To Anna L. Newcomb, the use during life, of another house and lot, subject to the payment by her of five dollars monthly, to another and directed a sale on her death, and the division of the proceeds between the children of Arma L. Newcomb.
    
      Third. She directed the sale of another house and lot, and out of the proceeds the erection of a monument on her lot in Mount Hope, and that $100 be placed in the hands of the commissioners of the cemetery as a perpetual fund, the income of which to be expended to keep the monument in repair. And that the residue of the fund produced by the sale, after payment of legacies amounting to $200, be divided between several persons named, amongst whom are Hubert Herrick and Emiline Soper.
    
      Fourth. She directed the sale of her homestead and the division of the avails between the six children of George Walker.
    
      
      Fijth. To Robert P. Newcomb, her piano, and to five nieces, named, all her household furniture, and “all residuary interests and estate.” And she nominated the plaintiff Aaron N. Newcomb and the defendant, Edward Webster, as executors, to whom letters were afterwards issued.
    By the codicil commencing as follows: “I do make, publish and declare this first codicil to my last will and testament, hereby revoking so much of said last will and testament as is inconsistent with the provisions of this codicil,” and proceed to give: 1. To the commissioners of Mount Hope, $100, as a perpetual fund, the interest of which, to " ‘be annually expended to keep the lot in said Mount Hope, belonging to my late husband Robert Walker, and my brother Perry Hodges.” 2. To the Rochester Home for the Friendless, $150. 8. To the Frank Street M. E. Church, of Rochester, $500. 4. To the Rochester Orphan Asylum, $300, to be expended for a specific purpose. 5. To Hubert Herrick, when he arrives at the age of twenty-one years, and if he does not live to that age, to his mother, $500. 6. To her sisters, Emeline Soper and Olive J. Hatch, each, $500. 7. To the six children of George Walker, each, $200. 8. To
    her four nieces amongst whom is Anna Newcomb, all the rest, residue and remainer of her estate, both real and personal.
    It appears that after making the will, and before the codicil was made, the testatrix sold and conveyed the house and lot, the use of which she had devised to Anna L. New-comb, and the house and lot, the proceeds of which she had directed to be divided amongst the six children of George Walker.
    The trial court determined that the residuary and no other clause of the will was revoked by the codicil, and that all other of its provisions remained effectual except that disposition of the life estate and avails of the two houses and lots which were sold by the testatnx, and that by such sales those clauses were revoked. The plaintiffs appeal.
    
      Turk & Barnum, for app’lts; Roy C. Webster, for resp’ts.
   Bradley, J.

The contention on the part of the plaintiffs is that the provisions of the will, except that nominating the executors, were wholly revoked by the codicil. The effect of a codicil is the republication of the will which it follows, and operates as a revocation or alteration of its provisions only so far as is so declared or is clearly inconsistent with it. And so far as their provisions permit, they are to be constructed together. Westcott v. Cady, 5 Johns. Ch., 334; Howland v. The U. T Seminary, 5 N. Y.,193, 214; Brown v. Clark, 77 id., 369, 375; Brant v. Wilson, 8 Cow., 56.

The testatrix, by the terms of the codicil, refers to the will and declares the purpose of revoking so much of it as is inconsistent with the provisions of the former, which fairly imports the intention that it continue effectual except so far as it is defeated by inconsistency of the provisions of the two instruments. The sale by the testatrix of the two parcels of real estate, operated as a revocation of the clauses of the will relating to the disposition of them and their avails. McNaughton v. McNaughton, 34 N. Y., 201 And the residuary clause in the codicil being inconsistent with a provision of like character in the will, that of the latter was revoked. And it is insisted by the plaintiff’s counsel that it reached further in its effect and imported a purpose to give to the codicil the entire testamentary disposition of the estate of the testatrix, because it might be construed as embracing all her estate, and reference is made to some cases relating to subsequent wills, and their construction and effect in reference to the prior wills of testators, where it is held that when they in terms embrace all the estate of the testator they operate as a revocation of the prior ones. Ludlum v. Otis, 15 Hun, 410; Simmons v. Simmons, 26 Barb., 68; In re Fisher, 4 Wis., 254; S. C., 65 Am. Dec., 309. And it may be observed that while a subsequent will does not revoke a former one unless it so declares or is inconsistent with it (Nelson v. McGiffert, 3 Barb. Ch., 158), there is a difference in the rule of construction applicable to it and to a codicil, because the latter purports to be supplemental to and is a republication of the will, while the subsequent will maybe treated as an independent testamentary instrument. And, therefore, the former must, if it can fairly be done, be construed in connection with the will and in harmony with its provisions, while the subsequent will, not necessarily subordinate in its purpose to the former will, may be given a more comprehensive effect when its provisions permit by way of testamentary dispositions of the estate of the testator. Yet inconsistency to give it that effect must exist between the two wills, and the latter operates as a revocation pro tanto only when the repugnancy is not co-extensive with the provisions of the former will. And because this did not appear in Simmons v. Simmons, before cited, the decision of this court was reversed. 24 How., 611.

In view of the rule of construction which is applicable and must be applied to the codicil, the fact that it contains a residuary clause which covered all the estate not specifically disposed of cannot have the effect to supersede the specific devises and bequests of the will not in their terms inconsistent with those of the codicil.

This proposition is well settled and is uniformly applied In such cases. The residuary clause of the codicil has the effect to dispose of what remains of the estate after the satisfaction of the devises and the specific legacies of the two instruments so far as they are not repugnant to each other.

The bequest by the will to the Mount Hope commissioners of the fund of $100, in trust for the purposes mentioned, is challenged as inconsistent with the bequest to them of a like amount in trust by the codicil. And it is asserted that the purpose of the one is not distinguishable from that of the other. This does not necessarily appear by the description given of the cemetery lot or lots on account of which the endowments are made. But be that as it may, the two bequests are not inconsistent. And being made by separate instruments, the fact that they were designed for the same purpose would render the latter cumulative rather than substitutional. De Witt v. Yates, 10 Johns., 156; Ridges v. Morrison, 1 Bro. Ch. R., 389; Hooley v. Hatton, n., id., 390; S. C., Leading Cases in Eq., by Hare and Wallace, 721; Wilson v. O'Leary, L. R., 7 Ch. App., 448; 2 Moak, 342; affirming S. C., L. R., 12 Eq., 525.

The intention of the testatrix must be ascertained from the provisions of the instruments in question (Wilson v. O'Leary, supra); and although there may be substantially nothing remaining for the residuary legatees, the reason for thus depriving Mrs. Newcomb of participation in the estate of the testatrix is not legitimately the subject of consideration.

There are some reasons appearing why she would likely be and was made the object of the bounty of the testatrix by the will. And after the devise to her was defeated by the sale of the property, it may be that the situation in which she was left was overlooked or not in the mind of the testatrix when the codicil was made, and she was made one of the beneficiaries of the residuary clause embracing less (if any) of the estate than that of the will. But courts cannot alter wills of testators or judge of their motives and purposes otherwise than by their acts as represented by their testamentary instruments.

There seems to have been no error in the conclusion of the trial court. The action for the relief sought by it was properly one for the executors alone to bring, but as no objection was raised in the outset to the fact that Mrs. Newcomb was made a party plaintiff, there is no occasion now to take any notice of it. She may now be treated merely as an unnecessary party plaintiff. This appeal may have been taken in her behalf. But under the circumstances we are inclined to give no costs of this appeal.

The defendant executor will evidently be allowed his actual and necessary expenses in the action out of the estate, and it was unnecessary that the defendants be represented here by more than one counsel.

The judgment should be affirmed.

Smith, P. J., and Childs, J „ concur.  