
    Catharine Altrock, Pl’ff, v. Arabella Vandenburgh et al., Def’ts.
    
      (Supreme Court, Rensselaer Circuit,
    
    
      Filed March, 1893.)
    
    1. Will—Rule op construction.
    A will should be so construed as to carry out the testator’s intention unless some positive rule contravenes.
    
      2. Same—Illegal suspension of power of alienation.
    A codicil which devises real estate to the three children of testator during the life of each and successively to the survivor or survivors, and upon the death df all to their children, is void as suspending the power of alienation for more than two lives in being.
    3. Same—Effect of invalid codicil on a valid will.
    A codicil that does not contain an express revocation, does not operate to revoke the terms of the will, unless such codicil is itself valid and can be carried into effect.
    Action for partition of real property, involving the construction of testator’s will and the determination of the effect of an invalid codicil upon a prior valid testamentary disposition.
    
      John McShea and Frank S. Black, for pl’ff; R. A. Parmenter, T. J. Van Alstyne, John P. Albertson and M. I. Townsend, for various def’ts.
   Parker, J.

April 23d, 1872, John W. Yandenburgh made his will. At that time he had a wife and two children, Catherine Link and William J. Yandenburgh. His estate consisted of real and personal property of about equal value. By his will he gave substantially all his personal property to his daughter and his real estate to his son and his son’s children, subject to an annuity to his widow for life, thus in effect making a nearly equal division of his property between his two children or their descendants. After the will was made the son died and the testator then made a codicil reciting that fact and purporting to devise his real estate to the three children of his son for the life of each, and successively to the survivor and survivors, and upon the death of all of them, then to their children.

This provision is void, for it suspends the power of alienation for more than two lives in being. After his death the will and codicil were duly admitted to probate, and in due course his personal estate was by the executor turned over to his daughter, the children and widow of testator’s deceased son entering into and retaining possession of the real estate. Subsequently an action of partition was begun by the plaintiff, a daughter of William J. Yandenburgh, deceased, in which action it was asserted by some of the defendants that while the attempted disposition of the real estate by the codicil was void, nevertheless it operated to revoke the devise of the real estate made by the will and therefore as to it the testator died intestate, thus vesting in his daughter, Catherine Link, an undivided one-half interest thereof.

The action was tried and judgment rendered therein, but it was subsequently opened in order to make another person claiming some interest in the premises a defendant. Hence this re-triaj. The justice before whom the case was first tried reached the conclusion that the provision relating to the real estate was revoked by the codicil reluctantly, because it was clear to him that such a determination results in defeating the manifest intention of the testator.

It is with some hesitation that this court takes the position that it will not follow the prior determination. It is so clear that the adoption of a construction of the will and codicil taken together which results in intestacy as to real estate, thus giving to the daughter’s family one-half of the property which he intended for that of his son, is so manifestly against testator’s wishes that the court should strictly inquire whether it is commanded by authority to so declare before yielding to the contention of the advocate for such a construction.

The will and codicil must of course be taken together and construed as one instrument, and it is a fundamental rule of construction that the intention of the testator as manifested by the whole instrument must be first ascertained, and then such a construction given as will permit such intention to prevail unless in contravention of some fixed legal rule.

Now it seems to be apparent from both the will and the codicil that it was the intention of the testator that the children of William, or their heirs at William’s death, should have the real estate. By the will he provided that his son, subject to the annuity before mentioned, should have the income thereof during his life, and after his death the fee to go to the children of his son or their heirs.

The son dying, the testator then made the codicil by which he gave the income to the children of his son" during their lives, or the survivor of them, and upon the death of all of them, then to their children.

It is apparent, therefore, that the purpose of the testator as manifested both by the will and the codicil was that his son and his descendants in some form should receive the benefit of this real estate. It is nowhere contemplated that his daughter Catherine was to "receive any benefit from it as against them.

It must of course be conceded that if the codicil had in terms revoked the devise contained in the will, the fact that an attempted devise of such property by the same instrument was void, would not operate to restore the devise revoked.

But that is not the question presented by this instrument. The codicil does not in express language revoke the devise in the will. It recites “inasmuch as I devised my farm to my son William for the term of his natural life, with remainder over, now instead thereof I do devise my said farm,” etc.

Now, if this attempted devise was valid, it would operate as a revocation of the will in such respect, because inconsistent with it, and expressly intended to take the place of it. But it is not valid, and it would be strange indeed if a wholly inoperative attempted disposition should nevertheless have the effect of destroying a prior valid devise, especially when, as in this case, it is apparent that the testator did not wish to die intestate as to his real estate, and that if he had known he could not lawfully make the disposition last attempted, he would have been content with the first

No authority has been brought to my notice which seems to require such a holding. On the contrary, the reasoning of Judge Finch, speaking for a unanimous court in Austin's case, 117 N. Y., 577-597; 28 St. Rep., 834, seems to clearly justify the conclusion that a void disposition, although inconsistent and repugnant to a prior one, does not operate to destroy it

In that case the remainder of a testator’s estate was given to his children and grandchildren in such shares as his wife should by her will direct and appoint. By her will she duly exercised the power of appointment. Subsequently one of the appointees died. Then she undertook by a codicil to designate which of the appointees should receive the share which the will provided should go to the deceased child. This provision of the codicil was held to be inoperative and void.

A comparison of the main features of the two cases will make clear the applicability of the discussion of the Austin case to the one under consideration.

In that case the testator possessed and by will legally exercised the power of appointment. In this one, testator could, and by will did devise his real estate.

The testatrix in Austin's case possessed the power to revoke, by codicil, the appointment made by the will and to make a new and valid appointment therein.

The testator Yandenburgh also had the power to revoke, by codicil, the devise contained in the will and to make a new devise therein.

In Austin’s case the testatrix intended to revoke the appointment as to Charles Austin’s share and reappoint as to it. And in this case the testator intended to substitute the devise made by the-codicil for that provided by the will.

In each case the disposition attempted to be made by the codicil is void and of no effect.

And in each case the question is squarely presented, whether these void attempted dispositions are nevertheless effective to revoke the dispositions they were intended to replace.

In Austin’s case it was held not. Judge Finch saying : “And thus the conviction is strengthened that Mrs. Austin did, fully and completely and lawfully, execute by her will the appointment authorized by her husband, unless the further objection of the appellants is sound—that her codicil appointing the share of Charles to the Oakes children operated as a revocation of the devise over, ' although itself null and void.

“That proposition strikes me as both unreasonable and illogical. The appellants are required to argue, as they do argue, that the appointment of Mrs. Austin’s codicil was absolutely null and void, because it transcended the authority conferred; and not only that, but was so vicious and bad that it dragged down with it the other-appointments which did not exceed the power, and yet was good enough and had force enough to revoke and annul, without words of revocation, an appointment complete and lawful and fully within the scope of the power conferred. * * * There are no words to that purport, or which declare that intention, and so it rests alone upon an implication born of the alleged repugnancy of the two provisions ; but are they necessarily repugnant ? Theu would be if the devise to the Oakes children was good; but are they if it is bad f Can nothing be repugnant to something and turn that something into nothing?

“ Suppose Mrs Austin had written out in full the thought which was in her mind when she executed the codicil; she would have said: I prefer to' give the share of Charles to the Oakes children, if I can ; that is my preference, and I give it to them if I may do so according to law; and then suppose that it should turn out that she could not lawfully make the change; does it follow, in that event, that she meant to revoke the valid appointment ? * * * That preference was wholly subordinate to the execution of her power, and no violence is done to her intention if, that failing, the disposition of her will is suffered to stand; for I deem it beyond a reasonable doubt, that if she had known what we now know, that an appointment to the daughter’s children was not within her authority, she never would have made it, but would have suffered the disposition of her will to remain.”

It seems to be clear that the reasoning in the Austin case is not only applicable, but controlling in this one.  