
    Deborah C. Folk, App’lt, v. Darwin Stocking et al., Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    1. Will—Construction of.
    By the third clause of her will the testatrix gave, devised and bequeathed all of her real estate to her four daughters or to their children, if either of her daughters should die during the lifetime of the testatrix, leaving children (subject to a charge of fifty dollars a year in favor-of her son A.). She afterward executed a codicil “ which is to be taken as a part thereof as follows: “I give and devise to my son Darwin and to my daughter Delphine S.,equally,share and share and share alike, all of my real estate situate on the south side of Main street, in the city of Binghamton being my homestead property, subject to all incumbrances thereon." At the time of the execution of the codicil the property on the south side of Main street.was occupied as a homestead. Held, that it was the intent of the testatrix by the use of the language found in the codicil to give to her son Darwin ard daughter Delphine all of her estate situate on the south side of Main street.
    2. Same—Intent of testator.
    By devising it subject to all the incumbrances thereon, she did not intend to restrict the gift to such portion of said real estate as was actually incumbered in a mortgage to her son, executed before said codicil, which mortgage declared the premises thereby conveyed were the homestead premises of the party of the first part.
    3. Same—Codicil—When it revokes a will.
    The codicil was a distinct, independent subsequent testamentary instru ment evincing a clear intent to pass to the devisees named in the codicil, the whole of her real estate. The third clause of the will was, therefore, revoked by the codicil.
    Appeal from a judgment, entered upon a decision made ■ at special term in Broome county awarding judgment to the defendants upon the merits, with costs to Darwin Stocking against the plaintiff, and without costs to any other party.
    On the 24th of February, 1883, Mahettable Stocking died in the city of Binghamton, leaving her last will and testament and a codicil thereto. She was the owner of certain real estate, on which she had resided for a great number of years, on the south side of Main street, in the said city.
    On the 31st day of July, 1869, she made and published her last and testament, wherein she charged her real and personal estate with fifty dollars per year for the benefit of her son, Amos Patterson, to continue as long as he should live; and wherein she bequeathed to her daughter, Delphine S., all her household furniture and effects, and inserted in her will the following language, viz.: “Third. I give, devise and bequeath all the rest, residue and remainder of my property and estate to my four daughters; if any of them shall die during my life-time leaving children, such children shall take the portion which their parent, if living, would have taken.” .
    On the 16th day of September, 1872, the testatrix executed the following codicil, viz.: “Codicil to the foregoing will made this 16th day of September, A. D. 1872, and which is to betaken osa part thereof, as follows: I give and devise to my son Darwin and to my daughter Delphine S. equally, share and share and share alike, all of my real estate situate on the south side of Main street, in the city .of Binghamton, being my homestead property, subject to all incumbrances thereon.”
    The testatrix left no husband surviving her, and her next of kin who survived her were two sons, Dennison Stocking and Darwin Stocking, and her four daughters, Delphine, Diantha, Eloise and Deborah.
    On the 17th of August, 1868, the testatrix executed and delivered to the defendant Darwin Stocking a mortgage on a portion of her real estate to secure the payment of the sum of $5,616, with interest, payable one month after her decease.
    The description contained in that mortgage was as follows: “All that tract or parcel of land situate in the city of Binghamton aforesaid, and bounded and described as follows, that is to say: On the north by Main street, on the east by lands of Simon C. Hitchcock, on the south by lands of the party of the first part, and on the west by lands of Mrs. Brownell; the- premises hereby conveyed are the premises of the party of the first part and on which she now resides, and are six rods wide from west to east and sixteen rods deep from north to south.”
    Prior to 1867 the plaintiff was in possession and was the owner of a lot on the south side of Main street, consisting -of about two acres, which was occupied by her and her family as a homestead. That in the years 1867 and 1868 she conveyed portions of said lot to other parties, so that she had left and thereafter owned óf said lot, a piece of land which was about six rods in width at the front of said lot, and about five rods in width, at the rear thereof, and about thirty-eight rods in depth, and she continued to occupy the same as a homestead until the time of her death, in February, 1883. The lot was not fenced off, or divided into lots, "‘‘otherwise than by a fence that was built parallel with .Main street, between seventeen and eighteen rods south of "the south line of said street, through which there were bars or a gate connecting the front part of said lot with the rear part thereof; such fence had been built and maintained for many years prior to the year 1867.”
    
      Frank J. Dupignac and A. A. White for app’lt: Babcock & Harroun, for resp’ts
   Hardin, P. J.

By the third clause of the will executed by the testatrix in 1869, it is clear that it was her intent to “give, devise and bequeath” all of her real estate to her four daughters, or to their children, if either of her daughters should die during the lifetime of the testatrix leaving children.

The language is clear and explicit to amply vest in the four daughters the whole of the testatrix’s real estate, subject to the charge of $50 a year in favor of her son Amos.

Three months and sixteen days after the execution of the will the testatrix executed the codicil “ which, is to be taken as a part thereof as follows: I give and devise to my son Darwin and to my daughter Delphine S., equally, share and share and share alike, all of my real estate situate on south side of Main street in the city of Binghamton, being my homestead property, subject to all incumbrances thereon.”

We think the words of the codicil, to wit: “all of my real estate situate on the south side of Main street, in the city of Binghamton,” were used by the testatrix with the intent and for the purpose of carrying to her son Darwin and to her daughter Delphine all the real estate which she owned on the south side of Main street in the city of Binghamton. At the time of the execution of the codicil the property was occupied by the testatrix as a homestead, and the words “being my homestead,” seem to be added byway of a more full and complete description of the real estate of the testatrix. The devisees named in the codicil taking through or under the will necessarily took the same, subject to all incumbrances thereon, there being no contrary intent expressed by the testatrix.

We are unable to see how the circumstance that she added to the phraseology which was adequate to carry the whole of her real estate on the south of Main street to the devisees named in the will, the words “ subject to all the incumbrances thereon,” that she thereby evinced any intent to restrict and cut down the force and effect of the words, “ all of my real estate situate on the south side of Main street, in the city of Binghamton,” to such portion of her real estate as actually was incumbered by the mortgage to her son Darwin, executed in 1868; although by that mortgage she had limited the description to the parcel “ six rods wide, from west to east, and sixteen rods deep, from north to south,” and had in the mortgage declared that-“the premises hereby conveyed are the homestead" premises-of the party of the first part.” She had not thereby declared that the other portion of the premises lying further south than sixteen rods from Main street were not a, portion of her homestead premises.

We recognize the rule that subsequent words of a will or of a codicil must clearly evince an intent to cut down an. estate where the prior words are sufficient to give the fee. Roseboom v. Roseboom, 81 N. Y., 356.

“It cannot be cut down or taken away by raising a doubt-from other clauses, but only by express words, or by clear and undoubted implication.” Freeman v. Coit, 96 N. Y., 63.

But we are of the opinion that it was the intent of the testatrix, by the use of the language found in the codicil, to give to her son Darwin and to her daughter Delphine“all of my (her) real estate situate on the south side of Main, in the city of Binghamton.”

The construction contended for by the appellant would require us to do violence to the language of the testatrix found in her codicil, wherein she describes the extent of her devises to her son Darwin and her daughter Delphine by the words “all of her real estate situate on the south side of Main, in the city of Binghamton.”

Inasmuch as we are of the opinion that the language of the codicil was used with the intent on the part of the testatrix to carry all her real estate to her devisees named in the codicil, it follows that the language is inconsistent with the devise named in the third clause of the will, and. therefore, the codical was a revocation of the language of the third clause. The codicil was a distinct, independent, subsequent testamentary instrument, evincing a clear intent to pass to the devisees named in the codicil the whole of her real estate. The third clause of the will was, therefore, revoked by the codicil. Barlow v. Coffin, 24 Howard’s Pr., 54.

In that case the bequest to the widow is contained in the will, which is dated January 12, 1852. That to the children, under which the defendant’s claim, is contained in the codical, dated October 11, 1862.

The rule in such a case is well settled that “an inconsistent devise or bequest in the second of two testamentary papers is a revocation of the first. Thus, in case of a devisé in the same lands to two persons, while, if the devises- are' in the same instrument, the devisees may take jointly or in common; but if they are found in distinct testamentary instruments the latter is a complete revocation of the former.” Brant v. Wilson, 8 Cow., 56; Wilson v. Wilson, 32 Barb., 328.

We think the last disposition made by the testatrix in her codicil operated upon the whole of the real estate owned by her at the date of her death. See Jarman on Wills, 156 and 158.

These views accord with the opinion of Mr. Justice Martin, delivered at special term; and the result reached by him should be sustained.

Judgment affirmed, with costs against appellant.

Follett, J., concurs; Martin, J., not sitting.  