
    In the Matter of Luke A. Lockwood, Ex’r of Gerardus A. G. Van Beuren, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Will—Conflicting codicil.
    One Van Beuren, by Ms will, directed that there should be no distribution of Ms residuary estate until the death of Ms brother, and in Ms will had directed his trustees to retain a sum of money and to apply its income to legacy taxes and expenses of administration. By a codicil he created certain trusts and then directed Ms trustees to pay over the balance to certain legatees. It was declared that the codicil should control where it conflicted with the will. Feld, that it was error to allow the trustees to retain the sum set apart by the will to pay legacy taxes, etc.
    Appeal from a portion of the surrogate’s decree.
    
      A. S. Cassedy, for app’lt; R. B. Shannon, for ex’rs; Michael J. Mulqueen, for special guardian.
   Van Brunt, P. J.—The

only questions raised by this appeal are as to malting legacies continuous charges upon residuary estate and as to the authority of the surrogate to direct the trustees named in the will in question to retain out of the residuary estate the sum of $15,000 and invest the same and pay and apply the interest and'income arising therefrom, and so much of the principal as might be necessary to the payment of all legacy and succession taxes and all charges and expenses of certain legacies and the administration thereof.

In the year 1889 one Gerardus A. G. Van Beuren died in the city of New York leaving a last will and testament dated March 26, 1878, and a codicil thereto dated July 12, 1884. The will and codicil were duly admitted to probate and upon the accounting of the executors the surrogate was requested to construe the sixth clause of the will.

The testator after numerous bequests gave “ to his trustees two bonds and mortgages for $5,000 each, one made by Calkins, and the other by Bacon, to receive the interest, pay the same as it might accrue to his sister-in-law, Rachel A. Van Beuren, during her widowhood, and on her marriage or death gave one of the bonds and mortgages to a niece Carrie, and the other to a niece Eliza.”

He also gave “ to his trustees a bond and a mortgage of $5,000, and one of $3,000 made by Calkins, and a bond and mortgage of $2,000 made by Shaw, in trust to set apart and hold the same, receive the interest, and pay the same as it should accrue to his brother, Samuel D. Van Beuren, during his life, and at his death he gave the first two of said bonds and mortgages, amounting to $8,000, to one of his nieces, and the other bond and mortgage to a nephew.

The fifth and sixth' clauses of the will are as follows:

’ “ Fifth. I give and bequeath unto the said trustees all the rest, residue and remainder of the property and estate, both real ami personal, of every description, and wherever situated, of which I may die seized or possessed, the real estate to be sold as soon as may be in their discretion, either at public or private sale, as they may deem best for the interest of my estate, and after paying my debts, funeral expenses and small gifts hereinbefore named, to have and to hold the same in trust, to set apart, invest and hold . the proceeds thereof, to receive the interest thereon as it accrues and pay over to my brother, Simeon B. Van Beuren of Now York city, during his natural life, the sum of six hundred dollars ($600) a year out of the interest so received, adding the balance of said interest to the main sum to accumulate. Upon the demise of my brother Simeon, I give and bequeath to my nephew John, provided he cancels a claim against me of four hundred and sixty-eight dollars ($468) for brother Samuel’s board, if it be • not already paid, two thousand dollars ($2,000); to my cousin, William H. Van Vorst, one thousand dollars ($1,000); to my friend, Luke A. Lockwood, for his fidelity to me, one thousand dollars ($1,000) ; to the St. Paul’s Episcopal Society at Riverside, Conn., five hundred dollars ($500), and the balance to my nephew, Theodore, and his heirs, to his and their own use and benefit forever.”
Sixth. All legacy and succession taxes and expenses which may be payable in respect of the bequests and devises in this will contained, I direct to be paid out of the interest from the proceeds of the real estate, so that each annuitant receive the whole of the income derived from the principal sum held in trust for his or her benefit. And should any of the legacies herein lapse, the same shall be distributed among my surviving nephews and nieces (excepting Theodore) share and share alike. ' Those leaving lawful issue them surviving such issue shall receive the share the parent would have taken if living.”

The seventh clause provides as to the time when annuities are to commence. The eighth clause is as follows :

Fighth. In case I should part with any of the securities herein bequeathed in trust, I direct my executors and trustees to supply the deficiency by investing out of the funds of my estate the necessary amount so lacking and apply the same to the fulfillment of such bequests or substitute any other that I may have left, bearing not less than six per cent, interest, not otherwise disposed of. And in case any of them shall be paid off before the termination of the trust upon which they may be held, I direct that the trustees reinvest the proceeds thereof and hold the same upon the same trusts upon which they held those paid off, and in the same manner and upon the same limitations as if they had not been so changed.”

This will was dated March 26, 1878. On the 12th of July, 1884, the testator made a codicil thereto in which he ratified and confirmed his will," save so far as any part of it was inconsistent with the codicil and such parts as were inconsistent were revoked, and after having specially revoked some arid changed other specific legacies contained in his will, the codicil proceeded as follows : “ It is my will and I now order and direct that paragraph marked fifth of my said will be and it is hereby amended so as to read and the same shall read as follows :

“Fifth. I give, devise and bequeath to my trustees all the rest, residue and remainder of my estate, real and personal, of every description and wheresoever situated, of which I may die seized and possessed; the real estate to be sold as soon as may be in their discretion, either at private or public sale, as they may deem" for the best interest of my estate, in trust, that after paying my debts and funeral expenses, they pay the, interest or income on a certain bond and mortgage for twelve thousand dollars ($12,000), made by William H. Yan Yorst and wife, on the premises known as No. 156 Wooster street, New York, to my nephew Theodore Yan Beuren" (quarterly if possible) during his natural life, and upon his individual receipt, and upon the death of my.said nephew Theodore that they assign the said bond and mortgage, or the proceeds thereof, half to my nephew John and his heirs, and half to my nephew Oliver and his heirs. " And that my trustees set apart and invest out of said residuary estate, of proceeds thereof, the sum of twelve thousand dollars ($12,000), and pay the interest or income thereof to my brother Simeon B. Yan Beuren in quarterly payments during his natural life, and upon his individual receipts, and upon his death they pay the said sum of twelve thousand dollars ($12,000), and half thereof to my nephew John and his heirs, and half thereof to my nephew Oliver and his heirs. " And that my trustees pay out of my said residuary estate, or the proceeds thereof, to cousin "William H. Van Vorst one thousand dollars ($1,000); to my friend Luke A. Lockwood, for his fidelitydo me, one thousand dollars ($1,000); to St. Raul's Episcopal Society; at Riverside, Conn., five hundred dollars ($500); to my cousin Schuyler Westervelt, of Spring Valley, Rockland county, JST. Y., one hundred dollars •($100), and that they divide the remainder of my said residuary estate equally, and pay one-half thereof to my nephew John and his heirs and the other half thereof to my nephew Oliver and his heirs. And I hereby revoke all of said paragraph fifth of my .said will omitted from this paragraph in this my codicil.”

It is apparent, therefore, that the method of construction claimed by the respondents, that the will should be construed as though the codicil were incorporated therein and originally formed part thereof, cannot prevail as the codicil expressly declares that where inconsistencies arise the codicil is to prevail and the will is pro ■tanto revoked. It is undoubtedly true that the will and codicil .should be so construed as to carry out the intention of the testator, and that they should be construed'together, but incase of in- • consistencies in the case at bar the codicil must prevail.

Upon an examination of the will and codicil it will be seen that the intention of the testator at the time of framing the will was very different from that which existed at the time of executing the codicil.

By the will there was to be no distribution of the residuary estate until the death of the testator’s brother Simeon B.Van Beuren; whereas by the codicil the trustees after providing for certain trusts are directed to pay over the balance therein directed to certain legatees named.

It is claimed by the respondents, and it was so held by the learned surrogate, that by the sixth clause of the will the testator intended that out of the residuary estate his executors and trustees should pay all the expenses of administration of the various devises contained in the will during the whole of their continuance, and it was to meet these charges that the fund in question was set apart.

The testator certainly says that each annuitant shall receive the whole of the income derived from the principal sum held in trust for his or her benefit, and it may possibly be that at the time of the making of the will it may have been the intention of the testator to charge upon' the residuary estate the expenses of the administration of these trusts, as at that time the scheme of the testator was that his residuary estate should not be divided and distributed at his death but should remain in the trustees’ hands during the life of his brother Simeon.

But when he came to make his codicil the testator provided ior ■the distribution of what remained of his estate after providing for the legacies mentioned in the will and codicil; and no suggestion is made.in respect to the retention -of anything whatever, except the legacies held in trust. The direction of the testator is to take certain specific sums out of his residuary estate, and divide the balance. If by the sixth clause of. the will the testator originally intended that the continuous expenses of administration of these legacies should be paid out of the residuary estate, it. seems to be clear that it was abandoned when the codicil was-framed, as such a scheme could not be carried out and the direction of the codicil to divide and pay obeyed.

But the testator never directed by the sixth clause that any part of his residuary estate should be devoted to this object, and manifestly never contemplated such a thing. It will be observed that by the sixth clause of the will these expenses were tobe paid out of the interest from the proceeds of the real estate. ¡No part of the principal was to be applied to this object. By the will the-executors were to hold and invest the proceeds of the estate, during the life of Simeon, the brother of. the testator, and pay him a small sum out of the interest derived therefrom, and accumulate-the balance, and thus the executors had a fund of interest to which the sixth clause could apply; but by the codicil the executors-could hold only specific sums devoted to definite purposes and are-directed to divide and pay over the balance, and therefore could not have any proceeds of real estate in their hands the interest of which they could apply to the payment of the expenses of the-legacies; a clear change of purpose in the testator.

This direction to divide in the codicil being inconsistent with the provisions of the sixth paragraph of the will, if the will be-thus construed, the provisions of the will must fall as the codicil expressly declares.

But we think that the sixth clause can be so construed as to-harmonize both will and codicil. It says all legacy and succession taxes and expenses in respect to the legacies shall be paid out of the interest from the proceeds of the real estate. These-words seem to relate only to the ordinary expenses of administration and of taxation during administration. These were to be borne by the estate, but after the estate was administered then each of the legacies stood upon its own footing and had no fur-ther relation to the residuaiy estate. But it does not seem to us-that the latter construction so well defines the intention of the testator as that first above referred to, viz.: that the testator intended his residuary estate to be divided as soon as it could be administered upon, and hence, no matter what he had originally intended by his will, he desired to revoke so much as would interfere with this distribution. It seems to us, therefore, that the portion of the decree appealed from should be reversed, with costs-to the appellants and the executors and guardian ad litem to be-paid out of the residuaiy estate.

Patterson and O’Brien, JJ., concur.  