
    Eliza Mulry, Individually and as Executrix, etc., of James Mulry, Deceased, Appellant, v. Thomas F. Mulry, Individually and as Executor, etc., of James Mulry, Deceased, and Others, Respondents.
    First Department,
    December 30, 1905.
    Will, construction óf—gift if wife do not marry — implied revocation of restriction "by codicil. ■ ■
    When a testator gives to his wifp- all the rest, residue and remainder of his estate “absolutely and forever upon condition and provided she remains unmarried,” but if she marry said estate to be divided among his children equally-, and, in a codicil executed seven years thereafter, he gives all the property situated in Ireland acquired after the date of the will, “ together with all * * * property wheresoever situate and not before, devised or bequeathed,” -to his wife, the codicil should bb construed as showing an intention to give the ■ residuary estate to the widow free- from any restriction concerning remarriage
    Appeal by the plaintiff,. Eliza Mulry, individually and as executrix,. etc., of James Mulry, deceased, from portions of a judgment of the Supreme Court in favor'óf the defendants, entered in the office of the clerk of the county of Hew York an the 8th day of May, 1905, upon the decision of the court, rendered after a'trial at the Hew York Special Term, construing the will of James Mulry^ deceased. , . .
    
      Alfred G. Reeves, for the appellant.'.
    ' ' Rastus S. Ransom, ■ guardian ad litem, for the respondents Ethel B. Manaban and others. - ’
   Laughlin, J.:

The will was executed on the 13th day of April, 1889. The first codicil thereto was executed on the same day, and the second codicil was executed on" the 15th of May, 1896.' By the 1st clause of the will the testator directed the payment of his debts and funeral expenses; in the 2d he devised and bequeathed all his real and personal estate at ^Cástle Strange, county of Roscommon, Ireland, to his wife in trust, to use the surplus income thereof for the education and maintenance of his son Thomas until the latter attained the age of twenty-one years, at which time he gave the remainder to Thomas absolutely, but provided that should Thomas die before arriving at the age of twenty-one years, then the remainder should vest in the wife of the testator. In the 3d clause he devised and bequeathed the houses and lots known as Nos. 15 Willett street and 115 and 117 Broome street, in the city of New York, to his wife in trust, to use the surplus income for the education and maintenance of his daughter Teresa until she attained the age of twenty-bne years, devising the remainder absolutely to his daughter on attaining the age of twenty-one years, and in .the event of her dying sooner, to his wife. The first codicil merely empowered his wife to sell these houses and lots devised in trust for his daughter, and to hold the proceeds'on the trust provided in the original will. It appears that the testator had one son, Lawrence, and a daughter, Jane, for whom he made no provision in the original will. By the 4th clause of the will he gave, devised and bequeathed the rest, residue and remainder of his estate to his wife “ absolutely and forever, upon condition and provided she remains unmarried,” and requested his wife to give to such charities and charitable institutions as she might select such portion thereof, not exceeding $10,000, as she might see fit, and further requested her to make such provision for their children before and after her death as she might in her good judgment determine, and then provided, “but in the event of my wife marrying, then-1 give, devise and bequeath to my children my said residue estate real and.personal equally, share and share alike, and the children of such of my children as may die leaving children surviving, the latter taking the parent’s share representatively.” By' the 1st and 2d clauses respectively of the second codicil the testator bequeathed the sum of $75,000 to his son Lawrence-and a like sum to his daughter Jane, neither of whom was named in the original will! The-3d clause of the second codicil -is as follows: “ Third. I give, devise and bequeath to my wife Eliza Mulry all my " real and personal property situate in the Counties of Galway and Roscommon, Ireland, which I have acquired since the date of my ■ last will dated April '13th, 1889, together with all my other real and ' personal property wheresoever situate and' not before' devised or bequeathed in my said wills or codicils, to have and to hold the same , fo her, her heirs and assigns, forever/’

The testator’s heirs remained the same at the time of his death as at the. time he made the second codicil. There were four children living and many grandchildren whose parents ¡were living and one grandchild, the defendant Mary A. Mulry, .the daughter of the testator’s son John J. who died in December, 1890.

The question presented by the appeal is whether -the 3d clause of.. the second codicil superseded in toto ■ the 4th clause of the will so that the testator’s widow v took the remainder originally devised by the 4th clause of the will free from the condition concerning a remarriage. It is urged in favor of that view that at the time of making the will the testatpr had left two of. his children unprovided foi;and that in the event of the remarriage of his wife it may be that he would hake preferred that they inherit some-of the’property rather than that she should take it; but. that „at the time of making his second codicil he had provided for all his children and she had in the meantime grown more than seven years older and become -fifty-six years .of age and that- the testator realized that the probability of her remarriage had become much less. It is contended on the other hand that the remainder, had been devised by the will, and by "the express language of the codicil it appears that there was no" intention to therein devise any property that had; been devised by the will. But it is suggested in Opposition to this view that all of the property devised by the 3d clause of the codicil was devised by the residuary clause of the will and would have gone.to the widow thereunder on condition that she remain single; and that some force and effect inust be given to the 3d clause of the codicil which can only be done by attributing to the testator the intention to change the will and give the remainder to his wife unconditionally. The 3d .clause of the codicil is fairly susceptible of the construction that where the testator says he devises all his other property, real •and personal, “not'before devised or bequeathed in my said wills or codicils ” to his wife absolutely that he meant not specifically devised in the will. It would appear from the second codicil that since making the will, the testator "had acquired real and personal property in the counties of Galway and Roscommon, Ireland; and there can be no question but that these properties were thereby given -absolutely to his wife. Ho construction can be placed on the 3d clause of the second codicil which will make all of its provisions intelligible and consistent with knowledge on the part of the testator as to the legal effect of the 4th clause of the will. If we should adopt, the view that he ‘meant to give his wife absolutely the property in the counties specified in Ireland acquired since' making the will, and he intended that the residuary should remain as provided in the will, no force or effect is given to the Words “ together with all my other real and personal property wheresoever situate and not before devised or bequeathed in my said wills or codicils,” for there could be no property not specifi-' cally devised acquired at any time that would not be embraced in the residuary clause of the will. Although it is difficult to ascertain the intent of the testator, it is more reasonable and probable, we think, to ascribe an intent to him to change the residuary clause of the will and remove the devise to his wife from any restriction concerning a remarriage.

It follows-that clauses 3 and 4 of the judgment should be modified by providing that the 4th clause of the will was superseded by the 3d clause of the second codicil, and that all the-residuary estate of the testator vested in and passed to the plaintiff individually free from any trust or condition, with costs to appellant payable out of the estate.

O’Brien, P. J., McLaughlin and Houghton, JJ., concurred; Patterson, j., dissented.

Judgmént modified as directed in opinion, with costs to appellant payable out of the estate.  