
    In the Matter of the Judicial Settlement of the Accounts of The Trust and Deposit Company of Onondaga, as Executor, etc., of William H. H. Smith, Deceased. Helen M. Evans and Others, Appellants; The Trust and Deposit Company of Onondaga, as Executor, etc., of William H. H. Smith, Deceased, and Others, Respondents.
    Fourth Department,
    January 17, 1906.
    -Will — provision that legacy shall not lapse — codicil and will construed together—when revocation of clause in will does not revoke provision against lapse of legacy.
    The 3d clause of a will bequeathed certain stock in trust, the dividends payable to testator’s wife for life. The 4th clause devised certain real-estate to said wife for life, and provided further that ‘‘the property mentioned in the third and fourth clauses of this will is to form and be considered my final residuary’estate." The'6th clause gave §2,000 to a brother, with the provision “In case my said brother shall die in my lifetime, leaving * * * descendants him surviving, such legacy shall not lapse * * The 8th clause made a similar bequest to another brother with the same provision against lapse thereof. The 29th clause provided that of the final residuary estate mentioned in the 3d and 4th clauses, being part of the life estate of the wife, one-sixth was to go to each of said brothers.
    By a codicil the testator revoked the 4th clause, but devised a life estate in the house and lot to his wife, the boundaries of the lot being slightly changed, with a legacy of §1,000, and provided “ In all other respects I hereby ratify and confirm my said will, and each and every part thereof.”
    In a subsequent codicil the testator stated that, having purchased other stock in the place of that first held, he revoked the 3d clause of the will and in place thereof gave the new stock in trust for life to his wife; adding,.“The property mentioned in the fourth paragraph of my said will and the property herein-before mentioned * * * is to form and be considered my final residuary estate, and is to be disposed of according to the terms, tenor and condition of my said will.”
    
      Held, that as codicils must not be construed to revoke a will further than is necessary to give effect to such codicils, the codicils aforesaid did not revoke the provision that the legacies to said brothers of the final residuary estate should not lapse, and hence, as said brothers had died before the testator, said legacies passed to their descendants.
    Receipts executed by beneficiaries on the distribution of property not included in said final residuary estate do not estop such beneficiaries from questioning the decree of the surrogate holding that their legacies in the final residuary estate have lapsed, when such portion of the estate is still in the hands of the trustee. . v
    Appeal by Helen M. Evans and others from a decree of the Surrogate’s Court of Onondaga county, entered in said Surrogate’s Court on the'31st,day of July, 1903.
    The decree of the Surrogate’s Court adjudged that legacies bequeathed by the will to two brothers of the testator, Charles R. Smith and Albert G. Smith, who died in the lifetime of the testator, lapsed.'
    
      A. C. Phillips, for the appellants Louis Cass Smith and others.
    
      Edgar F. Brown, for the appellants Rosetta L. Douglas and others.
    
      L. B. Williams, for the respondent Trust and Deposit Company, executor and trustee.
    
      
      Chester O. Clark, for the respondent Chase, individually and as committee, etc. -
    
      'Patrick J. Tierney, special guardian, for the respondents Gertrude Smith and others. ; . "
   Nash, J.:

By the 3d clause of the will the testator bequeathed, in trust, certain shares of railroad stocks, and directed that the dividends declared thereon by the corporations be made payable to his wife as long as she lived.

By the 4th clause of the will the testator devised to his wife? for and during her natural life, the use of .his house and lot in the city of Syracuse.

In this 4th clause it is provided that the property mentioned in the third and fourth clauses of this will, is to form and be considered, my final residuary estate.”

■ “ Fifth. I give and bequeath untó my brother, Charles ft. Smith of East End, Cuyahoga County, Ohio, the "sum of two thousand dollars. In case my said brother shall die in my lifetime, leaving a. chil'd, children of descendants him surviving, such legacy shall -not' lapse, and all property given, devised and bequeathed by this instrument, to my said brother, shall go and.be. paid to.his child, children and the descendants in the proportion his, her of their parent would take the same, if living, and I give, devise' and bequeath the same' accordingly.” ...

.By the 8th''clause of the. will the testator bequeathed to his. ■ brother, Albert G. Smith,'of Mew Lisbon, Ohio, $2,000* and made the same provision against lapse as in the legacy to. his brother Charles.'.

Tw.enty-eighth. All the rest, residue and reniainder of my estate, except my final residuary estate, mentioned in the. third and' fourth clauses of this will, the use of which is given to "my wife* for life, I give and dievise and dispose, of as follows, to wit: ” two-sevenths thereof each to the brothers Charles B. and Albert G. S'mith. - .

Twénty-ñinth. My final residuary estate, mentioned.in the third and fourth clauses of this instrument, being the part of my estate of ■ which my wife is to have the use during the term of her natural life, I give, devise, bequeath and dispose of as follows, to wit; ” one-sixth thereof each to the brothers Charles and Albert.

By a codicil to his will the testator revoked the 4th clause thereof, but devised a life estate in his house and lot to his wife, describing a little less land, and bequeathed to her a legacy of $1,000.

And in this codicil provided as follows: “The property mentioned in the third clause of my will, and the property hereinbefore mentioned (except the aforesaid sum of One thousand dollars, bequeathed to my wife absolutely) is to form and be considered my final residuary estate. In all other respects I hereby ratify and confirm my said will, and each and every part thereof.”

In a»subsequent codicil vto his will the testator states that: “ Whereas, I have disposed of and changed some of the stocks owned by me at the time'of making said will and testament, and have purchased other stocks in place thereof, Now, therefore, I do hereby revoke and annul the third paragraph of my said last will and testament and each and every part thereof, and in place and stead thereof I give and bequeath unto the Trust and Deposit Company of Onondaga, my trustee named in my said last will and testament, in trust nevertheless (describing shares of stocks) to be held by it in trust during the natural life of my said wife,” and further provides that: The property mentioned in the fourth paragraph of my said will and the property hereinbefore mentioned, the income of which is given- to myi wife during life, is to form and be considered my final residuary estate, and is to be disposed of according to the terms, tenor and condition of my said will.”

By this codicil the testator bequeathed to his wife an additional $2,000, and after some further bequests it is provided that: In all other respects I hereby ratify and confirm my said last will and testament, except as modified by said codicil thereto and this codicil. And I hereby order and direct that this codicil be annexed to and form a part of my last will and testament.”

The intent of the -testator that none of the legacies should lapse is manifest; all of the legacies, some twenty in number, to brothers and sisters of the whole and half blood, nephews, nieces and cousins, are carefully guarded in this réspect. Reliance is placed upon the words this instrument ” in the saving clauses, as indicating a purpose to make the saving clause applicable to the property described in the will only, and not to after-acquired property, or property described in the codicils. The phrase “such legacy shall not lapse,” as used in the saving clauses, is much more potent and forceful in this behalf. Not only is the rule that “ a will and codicil must be taken and construed together as parts of one and the same instrument, and the dispositions of the will are not to be disturbed further than are necessary to give 'effect to the codicil' ” (Hard v. Ashley, 117 N. Y. 606), applicable, but the testator, in unmistakable terms, evinced his purpose that the will and codicils should be read together as one instrument., The scheme of the will is not changed by the codicils. The beneficiaries are the same, with the exception that in the second codicil there is added to the. saving clause of the 7th paragraph of the.will giving'a legacy to Charles A. Russell a provision that, in case of his death leaving no child or children or descendants surviving, but leaving • him surviving his wife, then and in that case, the legacy is bequeathed to his wife.

In the codicils the property mentioned in the 3d and 4th clauses of the will as constituting the testator’s final residuary estate is the same as in the-will, except that the first codicil gives to the wife the same estate in the house and lot, the boundaries of the lot only being slightly changed, and except that in the second codicil other shares of stock are substituted in the place and stead of stocks which had been disposed of by the testator.

In all other respects it is expressly provided that the will is ratified and confirmed, except as modified by the codicils, and in the last codicil the testator directs that “ this codicil be annexed to and form a part of my last will and testament.”

We conclude that the children of Charles R. Smith are not estopped by the receipts signed by them upon the delivery of the property distributed under the decree of March 24,1903, by which in terms they ratified and assented to the proceedings already had.

With the form of each receipt to be executed a letter was sent, stating that the receipt was so drawn as to ratify the proceedings had to date, by the person to whom the letter was addressed, to make it safe for the trust company to distribute the stocks, without waiting for the lapse of a ¡period within which an appeal could be taken from the decree. . , '

No part of the “final residuary estate” having been paid by the trust company to the widow, pursuant to that decree at the time the motion was made to' open their default, the surrogate rightly held that they were not estopped by their receipts.

So much of the decree of the Surrogate’s Court as directs the payment" to the widow, Margaret Treadwell Smith, of one-sixth interest in and to the final residuary estate contained in the 29tli paragraph of the last will and testament of the said William H. H. Smith, and also that portion of the said decree which directs that one-sixth interest of the said final residuary estate passes to the heirs at-law and next of kin of the said William H. H. Smith, should be reversed.

Ordered that the decree of the court below be modified in accordance with views herein expressed, with costs of appeal to all of the parties appearing, including the special guardian, payable out of the estate.

All concurred.

Decree modified in accordance with opinion, and as so modified affirmed, with costs of this appeal to all parties appearing herein by separate attorney, including special guardian.  