
    Sweet administrator, &c. vs. Chase, and Rockwell, executors, &c.
    To render a subsequent provision in a will repugnant to a previous one, the last provision must be entirely incompatible with the first, so that if effect be given to the last, the other must entirely fail. Per Roggles, J.
    
    But no such incompatibility exists, where a testator by one clause of his will gives in absolute terms a legacy to his wife, to be paid out of the avails of the sale of his real estate, and by a subsequent clause directs his executors to sell such real estate after the death of his wife.
    
    Under such a will the legacy becomes vested on the death of the testator, although not payable until after the death of the legatee, and the legatee has the same right to sell or dispose of it, that she has in respect to any other property; and on her death, if undisposed of, it goes to her personal representative, who may enforce the payment against the executors.
    
    It seems, that where the payment of a legacy charged upon real estate is postponed by the will, with reference to the circumstances of the legatee, as where it is given to be paid when the legatee shall arrive at the age of twenty-one years, the charge is contingent, and fails unless the legatee live to the time of payment. But where the postponement is with reference to the situation and convenience of the estate charged, the legacy vests immediately.
    
    Benjamin Sweet, administrator, &c. of Elizabeth Sweet, deceased, filed his bill in the late court of chancery, against Ira Chase and Thomas Rockwell, executors of the last will and testament of John Pocock, deceased, to recover a legacy of $400, given by such will to the said Elizabeth.
    John Pocock, the testator, died in August, 1841, leaving a. will, whereby lie directed: Firstly, that all his debts and fuñera, charges should be paid out of his personal estate: Secondly, he gave to his wife Elizabeth, her heirs and assigns, a certain house and lot in the city of Utica: Thirdly, he gave to his said wife, all his personal estate of every description : Fourthly, he gave' to his said wife, all the rents and profits of his real estate situated in the city of Utica, during her natural life, or until she should again marry. The foregoing provisions were declared to be in lieu of dower. The fifth clause was in these words: “ I also give and devise unto my said beloved wife, her heirs and assigns forever, the sum of four hundred dollars, to be paid out of the avails of the sale of my real estate.” By the seventh clause, the testator directed his executors and the survivor of them, on the death of his wife, to sell and dispose of all Ids real estate in the city of Utica at public auction. By the eighth clause, he gave several legacies of sums of money payable out of the proceeds of the sale of his real estate, declaring that such legacies were not to become due until after the death of his wife, and until his executors should have reasonable time to sell real estate so as to pay the same. By the ninth and tenth clauses, the testator devised certain real estate, not situated in the city of Utica; and by the eleventh clause, he devised and bequeathed unto his grandchildren, in equal shares, “ all the rest and residue of his estate, whether real or personal, in possession, reversion, or remainder.” And lastly, he appointed his said wife Elizabeth, and the defendants, his executors and executrix. The testator died seised of considerable real estate situated in the city of Utica, over and above what was specifically devised by the will.
    The executors and executrix proved the will, and took upon themselves the execution thereof, in November, 1841, and before the death of Elizabeth, the widow, they had paid ah the debts of the testator. Elizabeth was married to the complainant, in July, 1846, and died without issue, in February, 1847. After her death the defendants, as surviving executors, sold the real estate not specifically devised, situated in Utica, and realized from such sales, a sufficient amount to pay all the legacies, including the legacy of $400, given by the fifth clause of the will to the said Elizabeth. Before the filing of the bill, the complainant having taken out letters of administration upon the estate of his wife, the said Elizabeth, requested the defendants to pay to him the legacy in question, which they declined to do, being advised that the complainant was not entitled thereto. In their answer the defendants submitted their rights to the judgment of the court.
    Gridley, vice chancellor, before whom the cause was heard, on bill and answer, held that the legacy in question was repugnant to the other provisions of the will, and therefore void. He accordingly dismissed the bill without costs, and his decision was affirmed on appeal, by the supreme court, sitting in the fifth district. The complainant appealed to this court.
    
      Wm. Tracy, for appellant.
    I. The intention of the testator, John Pocock, is to be sought from the whole will, and that intention must be carried into effect if it can be without contravening some positive and settled rule of law. (Crosby v. Wendall, 6 Paige, 548; Parks v. Parks, 9 id. 117; Pond v. Bergh, 10 id. 152; Purse v. Snaplin, 1 Atkyns, 416; Minshull v. Minshull, 1 id. 412.) It is manifest that it was the testator’s intention to give his wife, besides the real estate given her in fee and his personal property, the, use for life of his real estate in Utica, and an interest in its reversion to the amount of four hundred dollars. There is no other disposition of this four hundred dollars made. He may have supposed she would wish to make a testamentary disposition of it, or he may have thought that she would sell it during her life. Whatever his view was, the intention to give the $400 is unquestionable ; and there is nothing inconsistent with any rule of law either in this intention or in the mode by which it is carried out in the will. (Lowther v. Condon, 2 Atkyns, 127.)
    II. The legacy of four hundred dollars to Elizabeth Pocock. vested in her immediately on the decease of the testator, the time of payment only being postponed until the sale ol the real estate on her decease. The rule that a legacy charged upon real estate and payable at a future day, does not vest until that day, and lapses if the legatee die prior to it, is restricted to those cases “ where the payment is postponed on account of the age, circumstances or condition of the legatee;” as yvhere the legacy' is to be paid upon the marriage, full age, &c. of the legatee. (Harris v. Fly, 7 Paige, 428, and cases there cited; Lowther v. Condon, 2 Atk. 127, 130; Goodwin v. Munday, cited 1 Chit. Eq. Dig. 631, Dick, 551; King v. Wethers, Eq. Cas. Ab. 348 ; Sherman v. Collins, 3 Atk. 319.) Here the postponement was with reference to the circumstances of the estate. This legacy, with the others, were to be paid when the whole was converted into money. The rule does not apply in the case of a personal legacy. There, unless the time of payment is made a condition requisite to its payment, the postponement of the payment does not prevent the legacy vesting immediately on the death of the testator. (Van v. Clark, 1 Atk. 510; Preston on Leg. 68, 75, 80, 90.) In this case, the direction in the will converted the remainder after the life estate of the widow into money and disposed of it as money. (Brograve v. Winder, 2 Vesey, Jr. 634 ; Fletcher v. Ashburner, 1 Bro. C. C. 497; Maberly v. Strode, 3 Vesey, 450; Brown v. Bigg, 7 id. 279; Harrison v. Naylor, 3 Bro. C. C. 108; Lorillard v. Coster, 5 Paige, 172, 186, 218 ; De Peyster v. Clendinning, 8 id. 295 ; Smith v. Claxton, 4 Mad. 484 ; Amphlett v. Parke, 3 Russ. 565.) And the legacy of $400 to the testator’s widow, was strictly a personal legacy. It was not of the class of legacies to be raised from real estate referred to in the cases where legacies may lapse, the legatee dying before the day of payment. Those are where the legacy is to be raised out of the land—that is, out of its income or proceeds, and not where the land is to be converted into money. (Van v. Clark, 1 Atk. 510; Hall v. Terry, id. 502; Lowther v. Condon, 2 id. 127; Sherman v. Collins, 3 id. 319; Molesworth v. Molesworth, 3 Bro. C.C. 5; S. C. on rehearing, 4 id. 408.
    III. The position that the legacy was repugnant to the other provisions of the will, and is therefore to be rejected, is untenable. A provision in a will is not repugnant to another, when it is possible to carry both into effect. In this will the $400 legacy can be paid, and every subsequent provision of the will carried into effect. It is repugnant to no provision or legacy. It interferes with none. (Covenhoven v. Shuler, 2 Paige, 129; Sims v. Doughty, 5 Vesey, 247; see also note 2, on p. 248, m Sumner’s ed. ; Constantine v. Constantine, 6 id. 102.)
    IV. Nor is the legacy uncertain, as suggested by the vice chancellor. The intention is obvious to give the legacy : a way to pay it is provided, clear and distinct. And it is a way by which the legatee might either sell it as a vested right, oi dispose of it by will. The court will not guess out a better way to pay it, and then because this was not followed by the testator, who perhaps had good reasons for the one he chose, infer either that he did not intend it should be paid, or that he had no intention in relation to it. The function of the court is to carry out the obvious intention; not to infer one at war with the obvious meaning of the will.
    
      H. Denio, for respondents.
    The alleged bequest of $400 in the testator’s will, to be paid out of the avails of his real estate, is repugnant to the other provisions and to the general scope and plan of the will, and is therefore void. (Powell on Dev. 411, 415, 417,419; Price v. Warren, Skin. 266; S. C. 2 Eq. Ca. Ab. 357; 1 Jarman on Wills, 316.) Where there are, as in this case, two clauses in a will which are irreconcilable, and cannot stand together, the clause which is posterior in local position shall prevail, and the subsequent words be considered as denoting a subsequent intention. (Co. Lit. 112, b; 2 Bl. Com. 381 ; 1 Jarman on Wills, 411; Sherrat v. Bentley, 2 Mylne & Keen, 149; Constantine v. Constantine, 6 Ves. 102; Lines v. Doughty, 5 id. 247; Fane v. Fane, 1 Vern. 30; Covenhoven v. Shuler, 2 Paige, 122, 129; Smith v. Bell, 6 Pet. 68 ; Bradstreet v. Clark, 12 Wend. 665.)
    There are no grounds on which to impute to the testator an intention to create an interest in favor of his wife, which she might dispose of in her lifetime. (1.) The words are not apt or pertinent to express such an intention. (2.) It would be an unusual and an improvident method of providing for the raising of money out of the testator’s estate, and would moreover impute to the testator a course of refined and artificial reasoning which is highly improbable. To say the least, the testator’s meaning is uncertain, and where such is the case the title of the heir or residuary devisee is to be preferred. (Powell on Devises, and Jarman on Wills, cited supra)
    
    A legacy is not a charge upon the real estate, unless made so by the terms of the will. In this case there was no personal estate out of which the legacy could be paid, that having been given absolutely to the wife. The charge on the real estate is unavailing, because it could not be sold in the lifetime of the legatee. (Lupton v. Lupton, 2 John. Ch. Rep. 614; Powell v. Murray, 10 Paige, 256; Harris v. Fly, 7 id. 421, 425.)
    
      
      
        Conover v. Hoffman, 1 Bosw. 223. Norris v. Beyea, 13 It. Y. 283. Taggart v. Murray, 53 Ibid. 236. Van Vechten v. Keator, 63 Ibid. 52. Stickle’s Appeal, 29 Penn. St. 236. Newbold v. Boone, 52 Ibid. 167: Horwitz v. Norris, 60 Ibid. 261. Snively v. Stover, 78 Ibid. 484. But where two clauses in a will are totally inconsistent and incapable of being reconciled, the later one must prevail: Lewis’s Estate, 3 Whart. 162. Bonard’s Will, 16 Abb. Pr. (N. Y.) 297.
    
    
      
       See Floyd v. Pitcher, 38 Barb. 412. Loder v. Hatfield, 4 Hun 56. Arcularius v. Geisenhainer, 3 Bradf. 74. Terrell v. Public Administrator, 4 Ibid. 250. Vincent Y. Nemhouse, 83 N.Y. 505.
    
    
      
       See Tlmrber v. Chambers, 66 N. Y. 42 : s. c. 4 Hun 721.
    
   Ruglles, J.

delivered the opinion of the court.

By the fifth clause of his will the testator gave a legacy to his wife in the following words :

“ I also give and devise unto my said beloved wife, her heirs and assigns for ever, the sum of four hundred dollars, to be paid out of the avails of the sale of my real estate.”

Taking this clause by itself, and without reference to the other parts of the will, the intention of the testator to give his wife the immediate, entire and absolute interest in the sum of money therein mentioned cannot be doubted. But it frequently happens, that the effect of one clause in the will is qualified by another ; and so it is here. By the clause in which the legacy is given, it is made payable out of the avails of the sale of the real estate ; and by the seventh clause the sale is to take place on the death of the wife. The legacy, therefore, is not payable until after the death of the legatee. On this ground the supreme court adjudged the legacy to be void. The postponement of the payment was regarded as repugnant to the bequest, because it prevented the legatee from enjoying the legacy during her lifetime. But this view of the case does not seem to be satisfactory. An interest for life is not equivalent to the absolute property, in personal estate. If the testator’s widow had a present vested interest in the legacy by the terms of the bequest, that interest was worth something, although she was not to have the money during her lifetime, because her interest might be converted into money immediately by a sale. On this supposition the postponement of payment qualified the value of the bequest, but was not repugnant to it. To render a subsequent provision in a will repugnant to a previous one, the last provision must be entirely incompatible with the first. The last provision must be such that, if effect be given to it, the former must entirely fail. This does not appear to be such a case.

There is no room tc question the testator’s intention to give to his wife an interest in the legacy, transmissible to her repre sentatives after her death, unless we reject the most significant language to denote that intention. The legacy was “to her and her heirs and assigns for ever.” It is true, these words were unnecessary. The gift would have been absolute without them. The testator appears to have known it, for he did not use them tn the third clause of his will, in which he gave his personal property absolutely to his wife. Being unnecessary, they are the more significant, because they appear to have been used for greater certainty and to remove all doubt. It is also true that the words used are more appropriate to the devise of real estate than to a bequest of personal property. But that does not render them the less forcible to show that the testator intended to give more than a life estate in the legacy. The testator, moreover, may have believed his language technically appropriate in relation to this legacy, because it was to be raised by a sale of the real estate.

The testator having thus emphatically manifested his intention to give his wife an interest in this legacy which was to endure beyond the period of her life, the postponement of the payment, if in any. respect repugnant to the gift, is only so in part. If it deprived her of the use and enjoyment of it during her life, it did not affect the residue of her interest and title in it. But in fact there is no substantial incompatibility between the different clauses of the will. Taking the whole togetner, each part may be reconciled with the others. The legacy in question was given to the wife by the fifth clause in the will, to be paid out of a fund, the income of which had, by the next preceding clause, been given to her for life, or until her remarriage The legacy, therefore, so far as regards her interest in it for life, was twice given ; once in the 4th clause in the form of the use of the testator’s real estate ; and again in the 5th clause in the form of a legacy in money. The latter clause in express terms gives the absolute property which includes the life estate. The postponement of the payment of the capital of the legacy reconciles the two clauses : by showing the intention of the testator to give his wife what was equivalent to the absolute property in the legacy, by giving her the income of it during her life in the shape of the rents and profits of the real estate out of which it was to be raised, and the immediate right and 'tie to the money which was to be raised from the sale after hei death.

It is true, that in the event of her second marriage, she would lose the rents and profits of the real estate, without being entitled to the legacy during the remainder of her life. But the testator may well be supposed to have framed the provisions of his will under the belief that the restraints he had imposed on her remarriage by the forfeiture of her right to the income of his real estate would be effectual for that purpose.

The bequest is not void on the ground that there was no person in being to take it at the time it became payable. The interest in the legacy vested in the wife immediately a. the testator’s death. She took the title at that time, and that title passed at her death, like any other personal property she might have held, to her personal representative'. The intention of the testator to give her a vested legacy is manifest from the language used. The gift is direct, immediate, and without condition or contingency. There is a rule, that where a legacy charged upon real estate is given to the legatee to be paid to him at the age of twenty-one years, the charge fails unless the devisee lives to the time of payment. In such a case the payment is postponed with reference to the circumstances of the legatee of the money, and the legacy is regarded as given conditionally ; that is, provided the legatee attains that age. But where the payment is postponed with reference to the situation and convenience of the estate charged with the legacy, it vests instanter. (1 Jarman on Wills, 756; 1 Roper on Leg. 431.) The land out of which this legacy was to be raised liad, by a previous clause in the will, been devised to the widow during her life or widowhood, and therefore could not, during the continuance of her life estate, be sold for the payment of this and I he other legacies charged upon it, without disturbing the disposition which had been already made of it. The postponement of the sale, therefore, for the payment of this and the other legacies, was made in reference to the situation of the estate out of which they were payable; and the legacy is consequently vested within this rule, if the rule applies to the case at all. (See 1 Jarman, 757, note 1.) The objection, therefore, that the legatee was not alive to take the money when payable, vanishes entirely.

It is not improbable that the chief value of this bequest to his wife, in the estimation of the testator, may have consisted in the power it gave her of disposing of it by her will. It might have enabled her to command, from some of her descendants, the attentions due to her infirmities in advanced age, and have secured the performance of filial duties on her dying bed, which might othei’wise have been neglected. The hope of succeeding to property from the parent, is sometimes a more efficient security than natural affection against neglect from the offspring; and the power of disposing of this legacy after her death, may have been to her of greater value than any use she could have made of the money in her lifetime.

On the whole, the provisions of the will are not essentially incongruous. The testator’s intention is sufficiently plain, and there is no technical rule to prevent us from carrying it into effect. The right to the legacy of $400 was vested in the widow at the testator’s death, although the payment was postponed; and the complainant, who is her personal representative, is entitled to the money.

The decree of the supreme court dismissing the complainant’s bill, ought therefore to be reversed, and the executors of the testator, John Pocock, should be decreed to pay the legacy with interest from the time of the sale of the real estate, out of the avails thereof, with the cost of the complainant in the supreme court out of the same fund.

Ordered accordingly,  