
    Howland et al. v. Union Theological Seminary and another.
    
      Construction of Will.
    
    By a general residuary clause, a testator directed the rest and residue of his estate, real and personal, whatsoever and wheresoever, to he divided between certain relatives ; by a codicil, he republished his will, and reciting the death of one of the residuary devisees, without issue, made a different division of such residue; by another codicil, he revoked the bequest of one of such shares, and gave the portion of his estate bequeathed to the person named, to an ecclesiastical institution: held, that the latter took all that had been given by the will to the relative so disinherited, and that the testator did not die intestate as to any portion of liis estate.
    If the intent of the testator be plainly expressed, the courts must give effect to it, without regard to the motives by which he may have been governed in the disposal of Ms property.
    Howland v. Union Theological Seminary, 3 Sandf. 82, reversed.
    * Appeal by tlie Union Theological Seminary from the decree of the Superior Court of the city of New York, giving a construction to the will of James Roosevelt, deceased, and directing a distribution of his estate in accordance therewith. (Reported below, 3 Sandf. 82.)
    This was a bill in equity filed in the supreme court, in April 1848, by Gardner G. Howland, Isaac Roosevelt and Harriet Roosevelt, acting executors of James Roosevelt, deceased, against the Union Theological Seminary of the city of New York and the Rev. James Roosevelt Bayley, praying for a decree giving a construction to the will of the testator, and declaring the rights of the defendants under it.
    James Roosevelt died on the 6th February 1849, having first made his last will and testament, bearing date the 2d September 1841, for the construction of which, and of the several codicils thereto, this suit was brought. He appointed the complainants, together with James IT. Roosevelt and John Aspinwell, and the survivors and survivor of them, the executrix and executors of his said will; the complainants, however, alone qualified, and took out letters testamentary, in April 1849. The testator left surviving Harriet Roosevelt, his widow, Isaac Roosevelt, a son, Susan R. Roosevelt, a daughter, and Carlton Bayley, Richard Bayley, Rev. James Roosevelt Bayley, William C. Bayley, and Maria E. Bayley, the children of Grace Bayley, deceased, who was a daughter of the testator, his only heirs-at-law and next of kin.
    By the first clause of his will, the testator gave to his wife, Harriet, certain real and personal estate, absolutely ; by the second clause, he gave her the use of certain other real and personal estate for life, and an annuity of $5000, to be paid out of a portion of his estate to be set apart for that purpose. And he authorized and directed his executors to set apart and reserve so much of his estate, as they, in their discretion, with the consent of his said wife, should deem proper and sufficient to produce a clear income, adequate to the payment of such annuity, to be held and managed as a trust-fund for the payment thereof; and upon the decease of his said wife, to dispose of the same as there-inafter mentioned.
    By the third clause, he authorized and directed his executors to set apart and reserve such other part of his estate, as they should deem proper and sufficient to produce a clear annual income of $800, *to be held and managed as a trust-fund, the income of which he directed to be applied to the use of his daughter, Susan, during her life; and upon her decease, the said trust-fund to be disposed of as thereinafter mentioned. By the fourth clause of his will, he made a like provision for raising an annuity of $300 for Anna Maria Eoosevelt, the widow of his son, Eichard V. Eoosevelt, deceased, the principal to take the same direction, after her decease.
    The fifth clause of the will was a general residuary one, in the following words: “As to all the rest and residue of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath the same, in three equal parts, to be divided as follows, viz., one-third part to my son, Isaac, in fee simple, one-third part to the trustees hereinafter mentioned, for the use of my son, James Barclay, and the remaining one-third part, in five equal shares, to be subdivided to James Eoosevelt Bayley, Eichard Bayley, Carlton Bayley and William Bayley, in fee simple, one share each, and the remaining share to the said trustees, for the use of Maria E. Bayley, children of my deceased daughter, Grace Bayley.”
    ' *By the sixth clause, the testator directed as follows: “ And I do hereby authorize and direct my executors, as soon as conveniently may be, after my decease, after having set apart so much of my estate as may be necessary for the payment of the above-mentioned annuities to my wife, daughter and daughter-in-law, and the legacies hereinafter mentioned, and after paying all my debts and funeral expenses, to make a schedule and estimate, to the best of their knowledge and ability, of all the rest and residue of my estate, real and personal, and thereupon to proceed and make division, partition and distribution of the same to my said residuary legatees, mentioned in item fifth of this will, according to its provisions, and according to the several rights of the parties, quantity and quality relatively considered; taking, however, into consideration the advances which shall have been made, in my lifetime, to the said Isaac, James Barclay, Grace Bayley, and her children, as they shall respectively stand charged therefor in my estate book, which advances shall be taken (but no interest shall be charged thereon) as parts of my estate, and shall form a part of the whole share of him or her to whom or for whose benefit, or for the benefit of whose parent, such advances shall have been made.”
    The seventh clause of the will was in the following words: “ Upon the decease of my said wife, Harriet, I give, devise and bequeath the dwelling-house, coach-house and grounds, in the city of New York, mentioned in the second item of this will; and upon the decease of my said wife, and of my daughter, Susan, and daughter-in-law, Anna Maria Roosevelt, respectively, I give, devise and bequeath all those parts of my estate which shall be set apart as above directed for the payment of their respective annuities; unto the same persons, in the same proportions and shares, and subject to the same trusts as my residuary estate (so called), as mentioned and set forth in item fifth of this will. And I do direct a like division, partition and distribution thereof to be made; if practicable, on the happening of each of the last above-mentioned events. And upon such decease of Sa^ W^6’ ^ ^ve> ^ev*se aEl^ bequeath the said house, farm, stock of cattle, farming utensils and appurtenances, situate, lying and being in the town of Poughkeepsie aforesaid, and in the second item in this will mentioned, unto my grandson, James Roosevelt (son of Isaac), his heirs and assigns for ever, if he be living, at the time of her decease, and if not, then to his lawful issue, and if there be no such issue, then to the same persons, in the same proportions and shares, and subject to the same trusts, as my residuary estate (so called), and I do direct a like division, partition and distribution of the same.”
    ^g^h and ninth clauses of the will contained provisions which have little or no bearing on the questions involved in this appeal (they are referred to in the dissenting opinion); and gave the executors a power of sale, for the purpose of distribution. By a codicil, dated the 5th March 1842, the annuity given to the testator’s wife was increased to $6000.
    *On the 16th August 1843, the testator made a second' codicil to his will, in the following terms: “ "Whereas, I, James Roosevelt, by the fifth item of the annexed will and testament, have directed all my residuary estate to be divided into three equal shares, and distributed accordingly; and whereas, since the execution and publication of said will, my son, James Barclay, to whom one of the said shares (or to whose use) was given, has departed this life, leaving no lawful issue: Now, I do by this writing, which I hereby declare to be a codicil to my said will, to be taken as a part thereof, declare and direct, and it is my will, that my said residuary estate, instead of being divided into three shares, and distributed as aforesaid, that the sainé be divided into two equal shares and distributed as follows, viz., one share to my said son, Isaac, and the other share to the said children of my said deceased daughter, .Grace Bayley, in the same manner, and subject to the same restrictions and trusts in respect to the said Maria E. Bayley, in respect to the share she will receive by this codicil, as declared in said fifth item, in regard to her. And I do hereby devise and bequeath the said residuary estate accordingly, expressly subject, however, to any and all codicils to my said last will, bearing date and published previously to this date, which may be in existence at the time of my decease. And it is my desire, that this codicil be annexe*? to and made a part of my last will and testament, to all intents and purposes.”
    *On the'8th March 1844, the testator made a third codicil to his will, which raised the principal question discussed on this appeal, as follows: “Whereas, in the fifth section "of my last will and testament, bearing date the 2d day of September 1841,1 have devised and bequeathed to James R. Bayley, one of the sons of my daughter, Grace, deceased, a portion of my estate; and whereas, the said James R. Bayley, once a minister of the gospel in the Protestant church, has renounced the faith of his fathers, and is now a priest in the Roman church; and as I deem it neither just nor right that any part of the property which God has given me should be instrumental in building up a faith which I think erroneous and unholy, I do, therefore, by this codicil, which I hereby declare to be a part of my said last will and testament, to all intents and purposes, and to be taken as such, annul and make void ^16 af°resaid *bequest and devise to the said James R. Bayley, and do give and bequeath the portion so given him by my last will and testament, to the Union Theological Seminary in the city of New York, incorporated by act of the legislature, passed March 27th, 1839, and to their successors and assigns.”
    
    
      The complainants set forth in their bill that they had set apart so much of the personal estate as, in their judgment, was sufficient to produce the several annuities given by the will; that one year had elapsed since the granting of letters testamentary; and that they had paid all the debts existing against the estate, and the pecuniary legacies given by the will. *That they were desirous of making a final settlement of the estate so far as it could be done; but that the Union Theological Seminary claimed the one-tenth part of the residuary estate remaining after the reservation of the several funds set apart to produce the annuities given by the will; and, after the death of the annuitants, one-tenth part of the funds so reserved. *That x the Rev. James Roosevelt Bayley claimed that he was entitled to the one-tenth part of the said residuary estate claimed by the Union Theological Seminary, or some part of the same; alleging that the third codicil of the will referred to a part of said will which bad been revoked, and was, at the time of the execution of said codicil, no longer in existence; and that the third codicil was, therefore, inoperative. That he also claimed, that if he was not entitled to the one-tenth part of said residuary estate, or some portion thereof, yet, that the principal of the funds set apart to produce the annuities was not affected by the third codicil; and that he would be entitled to one-tenth thereof, on the decease of the annuitants,, respectively; or, if not entitled to the one-tenth part thereof, that the said James Roosevelt died intestate as to one-third part of said funds, and that the said James Roosevelt Bayley was entitled to the one-fifteenth of such third part as one of the next of kin and heirs-at-law of the said James Roosevelt. deceased.
    The Union Theological Seminary, by their answer, claimed the one-tenth part of the testator's residuary estate, and denied that the Rev. James Roosevelt Bayley was entitled to any portion thereof.
    *The Rev. James Roosevelt Bayley answered, ° admitting the statements of the bill, and insisting that “ the third codicil to the will, on its face, was founded on the erroneous supposition and apprehension by the testator, that such parts of his property as should be given by him to this defendant would go to the building up a faith which he deemed erroneous, whereas, it would only have accrued to the maintenance and support of this defendant, who had been treated by him with marked affection as a grandchild; and for this reason, as well as from the persecuting and proscriptive purpose expressed therein, that codicil ought not to be extended, by any implication or construction, beyond the terms and expressions thereof.” He also insisted upon his claim to a portion of the estate as set forth in the complainant’s bill'.
    *The cause was transferred from the supreme court to the superior court of the city of New York, by virtue of the act of 24th March 1849; and was there brought to a hearing upon the bill and answers, on the 2d July 1849, before Duek and Campbell, JJ., -Judge Mason having been of counsel in the case, whilst at the bar.
    On the 22d September 1849, a decree was made (Dues,, J., delivering the opinion of the court), whereby it was decided, that by the true construction of the will and codicils, the term “residuary estate” in the fifth section of the will, meant and intended the estate remaining after setting aside out of the general estate , of the testator sufficient of personal or real estate, or of both, the net annual income of which would produce the several annuities mentioned in the will, excluding also from the said residuary estate the *dwelling~ house and grounds in the city of New York, and the plate of the testator, other than that marked with the initials of Harriet (the widow), and the house, &c., in the town of Poughkeepsie, devised to the widow for her life, and that by the said fifth section, James Roosevelt Bayley would have taken the one-fifteenth .part of the residuary estate, as so defined and restricted, including as part of said residuary estate, the advances made by the testator, as specified in the sixth section of the will.
    That under the seventh section, the said James Roosevelt Bayley was entitled to one-fifteenth part of the dwelling-house, &c., in the city of New York, devised to the widow for her life, subject to such life-estate; and also to one-fifteenth of that portion of the estate set apart to produce the annuities, as the life-interests of the annuitants might, from time to time, be determined.
    That by the second codicil to the will, James Roosevelt Bayley became entitled to the one-tenth of one-third part of the residuary estate, as above defined and restricted, which had, by the fifth section of the will, been devised to, or in trust for James Barclay Roosevelt, son of the testator, who had died subsequently to the said will; and that the testator, by reason of such death in the lifetime of the testator, died intestate as to one-third part of the portion of the estate set aside to produce the several annuities, and as to one-third part of the real estate in the city of New York, devised to his widow for life, and as to one-third part of the family plate mentioned in the ninth clause of the will.
    That by the third codicil, the devise to James Roosevelt Bayley, contained in the fifth section of the will was revoked, and that the defendants, the Union Theological Seminary, became, by that third codicil, entitled to one-fifteenth part of the residuary estate, in the said fifth section mentioned, as above defined and restricted, which had been devised to the said James Roosevelt Bayley, and no more; and that the said James Roosevelt Bayley was liat’ ^ said third codicil, ^deprived of the one-fifteenth part of the real estate and funds devised to him by the seventh section of the will, nor of the one-tenth part of the one-third part of said residuary estate, devised to him by the second codicil of said will, nor of his share of the family plate mentioned in the ninth section of the will. The decree also contained directions for the division and distribution of the estate, in accordance with the principles so declared.
    In concluding his opinion upon this great case, Judge Duer said: — “This opinion has been extended to an unusual, and it may be thought, an unnecessary length; but we have been actuated by the hope, that the reasons which we have labored to explain, when duly weighed, will be found satisfactory to the parties, and will thus put an end to a litigation that, we are sure, all the mem- • bers of the family must sincerely regret. That the defendant, his grandson, will acquiesce in our decision, we cannot doubt; and we think that, without travelling beyond our province as judges, we may express the hope, that the Trustees of the Seminary will be content with that portion of the estate which, under our decision, they will be entitled to receive. Even should they, under the advice of counsel, be unable to admit the propriety of our decision, there are many reasons, not simply of expediency, but such as the true spirit of our religion, it seems to us, will not fail to suggest, that may lead them to abstain from any further prosecution of their claims. The conduct of the Rev. Mr. Bayley, in abandoning the Protestant faith of his ancestors, none of us who are Protestants can approve; hut this error, which all of us must trust will prove venial, is not to be named with the guilt he would have incurred, if, holding the opinions he does, he had remained in the church to which he belonged. He is not to be blamed, but commended, that, in order to save himself from this guilt, he has followed, at the sacrifice of his interests, the dictates of his conscience; and, God forbid! that such a step should ever be thought to dissolve the bonds of kindred or of Christian fellowship.”
    Notwithstanding this powerful appeal by the learned judge to the Christian feelings of the parties, it was hardly to be expected, that the trustees of a Protestant ecclesiastical seminary would exercise such an act of magnanimity in a contest for the property of a Catholic priest; and the Union Theological Seminary, accordingly, took this appeal.
    
      Wood, for the appellants.
    
      Lord, for the respondent, Bayley.
    
      
       Jamos Roosevelt Bayley, the grandson disinherited by this codicil, was the eldest son of Guy Carlton Bayley, M. D., a celebrated surgeon and physician, who rose to the head of his profession in the United States, and ¡t brother of Mother Seton, the foundress of the Sisters of Charity in this country. James Roosevelt Bayley was born in the city of New York, on the 23d August 1814; he was educated at Washington (now Trinity) college, Hartford, Connecticut; after leaving college, he turned his attention to medicine, but, at the end of a year, gave up all thought of following that profession, and entered upon a course of study for the ministry of the Protestant Episcopal church, under the learned Dr. Jarvis, of Middletown, Connecticut, of whom he always spoke with kindly consideration. After his ordination as a presbyter of the Protestant Episcopal church, he became rector of Harlem, then (1840-41) a fashionable suburb of New York; but feeling himself drawn away from the religious tenets of his associates, he resigned this comfortable and lucrative position, and proceeded to Rome, where, after considerable study, and a spiritual retreat, he was received into the Catholic church, by E. Esmond, a Jesuit, on the 26th April 1842. Two days after, he was confirmed by Cardinal Eranzoni, in the rooms of St. Ignatius, at the Gesil, and left Rome, to study theology in the Snlpitian Seminary, at Paris. Bishop Hughes, wishing to ordain him at home, recalled him to New York, and raised him to the priesthood, on the 2d March 1844. After officiating for a time as parish priest, in Staten Island, he became secretary to Archbishop Hughes, and occupied that position, until consecrated as Bishop of Newark, New Jersey, on the 31st October 1853. By a papal brief, dated the 20th July 1872, he was translated, very unwillingly on his part, to the archiepiscopal see of Baltimore, and received the pallium, on the 12th October following, from the hands of the Bishop of Philadelphia. Having been in feeble health for some years, Archbishop Bayley went to Europe, in April 1877, in hopes of deriving benefit from the Vichy waters ; but his health not improving, he returned to this country, but got no further than Newark, where he died, on the 3d October 1877. He was buried at Emmittsburg, beside the remains of his revered aunt, Mother Seton, in the cemetery of the Sisters of Charity, at St. Joseph’s. Archbishop Bayley was a man of a kind and genial nature, of exceeding frankness of character, but withal very positive in any matter involving a question of right. He believed, to tire end of his life, that Ms grandfather had disinherited Mm, under a delusion as to a question of fact, by whom instilled into Ms grandfather’s mind, he knew not. He had been a favorite grandcMld, and keenly felt the injustice of the will. That a secular priest or bishop in the Catholic church is as free to accumulate and transmit property as any other person, is well known, but the testator evidently thought otherwise. Every one, at the present day, is aware, that the late pope Pius IX. bequeathed a large fortune to Ms relatives, amounting to many millions of dollars, which had accumulated during his long pontificate, and no man protended that the church had any claim upon it.
    
   *Gakdineb, J.

The fifth section of the will of the testator contains this provision: “As to all the rest and residue of my estate, real and personal, whatsoever a,nd wheresoever, I give and devise and bequeath the same, in three equal parts to be divided, as follows: one-third part to my son, Isaac, one-third for the use of my son, James Barclay, and one-third, in five equal shares to he subdivided, to the children of my deceased daughter, Mrs. Grace Bayley, or to trustees, for their benefit.” The respondent was one of the children of Mrs. Bayley. The language of this devise and bequest is sufficiently comprehensive to embrace all the estate of the testator, of which no specific disposition was made by the will in question.

In August 1842, the year following the execution of the will, the testator published his second codicil. It recites, that the testator, by the fifth clause of his will, had directed all his residuary estate “to be divided into three equal shares, and distributed accordingly.” It then states the death of James Barclay Roosevelt, one of the residuary devisees, without issue, and directs that “the said residuary estate of the testator, instead of being divided into three shares, and distributed as aforesaid, shall be divided into two shares, and be distributed, one share to Isaac, and the other to the children of Grace Bayley.” The residue thus disposed of is admitted to be the same as that provided by the fifth clause a^ove merhh>ned; but the respondent insists, that the testator did not intend to include in such residue the trust funds and reversions created by the second, third and fourth clauses of his will. The answer to this suggestion is, that the language of the fifth section is sufficiently broad, as we have seen, to constitute it a general residuary clause, extending to all the property of the testator, whether in possession or expectancy, not otherwise appropriated. The testator has, in effect, so denominated it in the second codicil ; for he there refers to the fifth item, as containing directions for the disposition, not of a particular residuum, but “ of all his residuary estate.” We have, therefore, the language of the testator, and his construction of its meaning, and both are opposed to the limitation claimed by the respondent.

The second codicil became a part of, and was a republication of, the will, not only by operation of law, but according to the express directions of the testator, and the two must he construed together as one instrument. (Barns v. Crowe, 1 Ves. Jr. 486, Sumner’s ed. and note; Mooers v. White, 6 Johns. Ch. 375; Westcott v. Cady, 5 Id. 344, and cases there cited.) The effect of the codicil was to modify the fifth section, by changing the proportion of the residuary estate which fell to the share of Isaac, and the children of Grace Bayley, respectively, from one-third to one-half, without changing the subject of the devise, or the persons of the devisees. The testator did not, as supposed by the counsel of the respondent, add to the one-third of the residuary estate given to the children of Grace Bayley, by the fifth section, the one-half devised to his son James by the same clause. On the contrary, the testator limited his action to a single subject, the residuary estate, as an entirety. He, accordingly, declared, in the second codicil, that it was his will, that his residuary estate, instead of being divided into three shares, and distributed to three devi-sees, according to the fifth section, shall be divided into two shares, and distributed to the two there designated. The latter provision became a substitute for, and ^thereby repealed, the former. Otherwise, we must assume, that the testator * believed that he could .divide and distribute the whole of the same fund, at the same time, in three parts, to three, and in two parts to two beneficiaries.

The sixth and seventh clauses of the will, upon which so much reliance has been placed by the respondent, are consistent with the view, that the testator recognised the fifth section as a general residuary clause, and, consequently, that he did not contemplate intestacy, or. in fact, die intestate as to any part of his property.

The sixth clause directs that the particular residuum, in the possession and under the control of the executors, at the death of the testator, after setting apart so much of the estate as might be necessary to pay annuities, legacies and debts, shall be divided among the “residuary legatees mentioned in item fifth of this will, according to its provisions.”

The seventh section, in like manner, directs the distribution of the reversionary interest in the property and trust-funds created by the previous clauses, as the lives of the devisees, legatees and cestuis que trust should terminate, respectively, “ unto the same persons, in the same proportions, as set forth in the fifth item.” It is true, that the reversion in the farm, &c., at Poughkeepsie, was thereby granted to a grandson, or his issue, in case he or they should survive the wife of the testator, to whom a life-estate had been limited in the same property. If the contingency happened, the residuary estate would be so much diminished; if not, the reversion went to form a part of the general residuum, and, with that, be distributed in conformity with the provisions of the fifth section.

The main object of the sixth and seventh clauses above mentioned, was to compel a distribution of the different portions of the estate of the testator, from time to time, and whenever a division would give to the beneficiaries the possession and beneficial use of the shares allotted to them, respectively. The sixth, accord-relates to property in possession of *the executors, exclusive of trust-funds, &e.; the seventh, to that in expectancy. And the two, constituting, in the language of the will, “ the whole residue and remainder of the estate” (after satisfying special gifts), were, at the prescribed periods, to be distributed among the persons, in the proportions, and subject to the trusts, declared in the fifth or general residuary clause. The views suggested, if correct, dispose of the question before us.

In March 1844, the third codicil was made and published. The testator therein declared “ that by the fifth section, he had devised and bequeathed to James E. Bayley (the respondent), a portion of his estate” — that the beneficiary “had renounced the faith of his fathers,” and he then proceeds “to annul the aforesaid bequest and devise,” and gives to the appellants the portion so given by his last will and testament to the respondent.

If the testator had died after the second, but before the publication of the third codicil, what share of his estate would have passed to James E. Bayley, by the fifth section of the will, modified as it then was, by the second codicil ? Not a fifteenth, as originally given, but three-thirtieths of the residuary estate. The learned •court whose decision we are reviewing, say “that the codicil operated as an enlargement of the devise and bequest contained in the 5th section of the will.” Such is our opinion; so thought the testator; and when he-alludes to a portion of his estate there devised to the respondent, he refers to the portion augmented by the operation of the second codicil. And when he directs that the appellants shall take the portion so-given by'his last will and testament, he means all that was given by the instrument, of which the codicil was an indispensable part.

The respondent would separate the gift bestowed by the fifth section, prior to the publication of the codicil, from what he terms the “increase” granted by the second of them.

*The effect of this construction is, first, to divide the second codicil from the original will, of which the testator declared, “ it should be a part, to all intents and purposes.” Secondly, it assumes, that the testator, having enlarged the devise in the fifth section, by the second codicil, through accident or design, reinstated that section as it stood originally, for the purpose of depriving this devisee of the share there given, leaving him the “increase” bestowed by the second codicil to dispose of at pleasure. In a word, that the testator intended to deprive this beneficiary of a fifteenth, and leave him a thirtieth part of his residuary estate, to build up a faith which the donor deemed “ erroneous and unholy,” and this in the face of the express declaration that he did- not deem it “just that any part of the property which God had given him” should be thus appropriated. Such was not the will nor the language of the testator.

Whatever may be thought of his motives in excluding the respondent from the list of beneficiaries, we must give effect to his intention, if plainly expressed. The respondent was undoubtedly honest in changing his religion — the testator may be presumed to be equally conscientious in adhering to his own. It is enough, that he was the sole judge whether any part of his property „should be at the disposition of a Catholic clergyman, or be applied to sustain a seminary professing to teach the doctrines in which the testator was a believer, while living, and in the faith of which, he probably died.

The decree of the superior court must therefore be reversed, in the particulars appealed from, and a decree entered in conformity to the views above suggested.

McCoun, J.

(Dissenting.) — In order to determine the controversy before us upon this appeal, it is necessary to ascertain,, in the first place, what the respondent James B. Bayley would have been entitled to by the will, taken in connection with the first and the second codicils; and ^eB’ k°w ^ar ^ird codicil *has deprived him of those intended gifts, and transferred them to the Theological Seminary, as his substitute.

The will first makes provision for the widow, in lieu of dower, giving to her the fee of certain real property and the absolute ownership of some personal property, particularly mentioned, and also a life-estate in certain other real property, viz., a house in a town and a farm in the country; and the use, during life, of certain other personal property, together with an annuity of $5000, to he paid to her from the income of a sufficient portion of the estate, to be set apart for the purpose, and managed as a trust-fund by the executors, during her life.

Next, it provides an annuity of $800 for a daughter, and another of $300’ for a widowed daughter-in-law of the testator, which are to be raised in like manner, by setting apart portions of the estate as trust-funds, to yield the amounts during the respective lives' of the annuitants; and then follows the fifth clause of the will which purports to dispose of all the rest and residue of the estate, real and personal, in three equal parts to be divided — one-third to the testator’s son, Isaac, in absolute ownership, one-third to trustees, for the use of another son, James Barclay, and the remaining third to be subdivided into five equal shares between James R. Bayley, Richard Bayley, Carlton Bayley, and William Bayley, and trustees for the use of Maria E. Bayley, all children of the testator’s deceased daughter, Grace Bay-ley — one share to each, in fee.

Although the words, “ all the rest and residue of the estate, real and personal, whatsoever and wheresoever,” as used in the fifth clause, are of sufficient import to carry everything not already disposed of, including the capital of the annuity-funds and the remainders in the lands and other property given to the wife for life, yet, it is very evident, from the subsequent parts of the will, that the testator has not used the words in that broad and comprehensive sense, nor, indeed, as embracing everything except those reversionary interests; for, by the tenth clause, we find him giving several *pecuniary legacies, amounting in all to $4000, which must he paid out of the general assets in the hands of the executors, because no other mode of paying them is provided for; and the application of the assets to that object would be in conflict with the previous gift, if that is to be regarded as a gift of the general residue, in the place where it is found. That it was not intended to include any reversionary interests in the property previously given and directed to be set apart for the benefit of his wife, and daughter, and daughter-in-law ; in other words, that the fifth clause of the will is to be understood as disposing only of a particular residue, and not generally of “the residue” of . the estate, is apparent likewise from the sixth, seventh and ninth clauses of the will.

By the sixth clause, the executors are directed, as soon as conveniently may be, after the testator’s decease, and after having set apart so much of the estate as may be necessary for the annuities and the legacies afterwards mentioned, and the payment of debts and funeral expenses, to make a schedule and estimate of the rest and residue of all the estate, real and personal, and thereupon, they are to proceed and make a division and distribution of the same among the residuary legatees (so called) who are mentioned in item fifth of the will, according to its provisions, &c. The residue here spoken of is, doubtless, the same which is given under the like denomination by the fifth item, to be divided into three parts, and one of those parts' into five subdivisions; and it is composed of all that remains of the estate, over and above the annuity funds and the legacies, debts and funeral expenses, not including, however, any of the property in which the wife’s life-estate was given. The gift by the fifth clause, therefore, is to be understood as a gift of such portions of the estate only as were divisible by the executors, immediately after the death of the testator, and as not extending to any of those reversionary interests which appear to have been reserved for a subsequent and separate gift. Accordingly, we find in the seventh clause, that all those interests in remainder *are there disposed of, with but one exception. The exception is of the family plate, which is the subject of a particular bequest, by the ninth clause of the will, after the wife’s use of it shall have ceased by her death. It is then to go to the sons, Isaac and James Barclay, and to the granddaughter, Maria E. Barclay, in equal shares, differing in the latter particular from the disposition made of other parts of the property by the seventh clause.

The seventh clause disposes of the fee of the real property in which the wife has a life-estate, and of the capital of the funds or property ordered to be set apart for the purpose of the annuities; but not all to the same persons. The remainder in fee of the farm, with the stock of cattle, farming utensils, and other property upon it, are given to a grandson (the son of Isaac), with a limitation over to his lawful issue, in the event of his death, before the death of the tenant for life, and if no issue, then to the persons taking the residuary estate, &c. The remainder of all the other property, on the dropping of the lives, is given “ to the same persons, in the same proportions and shares, and subject to the same trusts, as the residuary estate (so called) as mentioned and set forth in item fifth of the will.”

Although the same ultimate • disposition is here made of all this last-mentioned property, as is made of property by the fifth clause, yet, both clauses appear not to relate to the same property indiscriminately; but rather to separate and distinct parcels; indeed, they constitute separate gifts. The first is of parcels of property which can be handed over at once to the beneficiaries to whom they are given, upon a division and distribution to be made among them; the other, of portions of the estate set apart to answer special purposes and to await the happening of events which may be quite remote, before any such division and distribution can be made; and though, in a relative sense, both parcels may compose a residue of the estate, yet I do not see how it is possible to understand the fifth clause, when read in connection Par^s °f *the will, as embracing all that had not been previously devised; or how, in the face of the distinction which the testator has made between the gifts by the fifth and the seventh, we can say, that both relate to the same subjects of bequest, and that the latter is but declarative and confirmatory of the former, in respect to the property given.

It follows, therefore, that under the denomination of “all the rest and residue of his estate,” &c., as given by the fifth clause of the will, the testator intended only such property as was numerically different from the property he had previously sjDecified in the gifts to his wife and his daughter and daughter-in-law, and such as should remain after the debts, funeral expenses and pecuniary legacies were all satisfied. According to this construction, James R Bayley would have been entitled, under that clause of the will, to a fifteenth part of the property, real and personal, which the executors were authorized and directed to. distribute as soon as might be, after the testator’s decease. All given to him beyond that he would take by virtue of the gift in the seventh clause.

The codicils are next to be considered. The first codicil adds $1000 to the wife’s annuity, rendering it necessary for the executors to increase the fund or capital to be set apart for the annuities, and, consequently, lessening the amount in their hands for immediate distribution.

The second codicil was intended to produce a more important change in the division of the estate. James Barclay, one of the sons, had died, and to prevent a lapse of the devise of one-third of the estate originally intended for his benefit, this codicil appears to have been made; but I think, with the court below, that it has failed to accomplish all it was probably designed to accomplish — that is, it fails to dispose of the share in all the propertv which, the deceased son would have taken by tbe will, had he lived. Unfortunately, perhaps, for the intention of the testator, in framing this codicil, it only speaks of the fifth clause of the will, as the clause by which *lie had directed all his residuary estate to be divided into three equal shares and to be distributed; and in consequence of the death of his son, he directs that his said residuary estate, instead of being divided into three shares, shall be divided into two, and be distributed as follows: one-half to his son Isaac, and the other to the children of his deceased daughter, Grace Bayley, in the same manner, and subject to the same restrictions and trusts in respect to Maria E. Bayley and the share she will receive by the codicil, as is declared in the fifth clause in regard to her; and he devises and bequeaths the said residuary estate accordingly. Throughout this codicil, the residuary estate spoken of is the residuary estate embraced by the fifth clause of the will; and unless we reject all mention of the fifth clause in the codicil, we cannot apply the words residuary estate to any other than the property which was so denominated in the fifth clause itself; which, as we have already seen, is a particular and limited residue.

The consequence of thus restricting the operation of the codicil to the gifts by the. fifth clause, leaving the one-third of the residue and remainder devised by the seventh clause untouched by it, is a lapse of the latter devise, in the event which has happened, viz., the death of the son, James Barclay. As to which, therefore; there is an intestacy, and it passes to the heirs and next of kin, in the same manner as if no will had been made, except that the widow cannot participate, having accepted the provisions made for her by the will, which are declared to be in lieu of dower, and in full satisfaction of any distributive share and of all other claims upon the estate. But for that election, she would be entitled. (Van Kleeck v. Dutch Church, 20 Wend. 457.)

This is not the case of a revocation by the codicil, or of snob a devise of the residue of an estate, as carries the property to the surviving residuary devisees, within the principle of Kip v. Van Cortlandt (7 Hill 347). The gift of the one-third of the family plate to James Barclay, by the ninth clause of the will, is, in the same situation, and that portion of the *property also on the death of the wife goes to the next of kin. We come now to the third and last codicil, by which the right of the appellants has been created, and which gives rise to the question, how far the respondent, James R Bayley, is cut off and the appellants are substituted as the devisees.

The third codicil, like the one preceding, refers to the fifth section of the 'will, as the section by which the testator had devised to the grandson a portion of the estate; no other part of the will is mentioned. It then states the cause of his making this codicil, and it annuls “the aforesaid bequest and devise to the said James N. Bayley,” and gives and bequeaths “ the portion so given him by the will to the Union Theological Seminary,” &c., and to their successors and assigns. The reasons assigned for making this codicil might readily enough induce a belief, that the testator intended to deprive this grandson of all participation in the benefits of his property. The proscriptive language used towards him, and the aversion, if not abhorrence, with which the testator appears to have looked upon the new faith he had embraced, and the new ecclesiastical association he had formed, and the dread of any of his property being used to build up a form of worship which he deemed worse than erroneous, would seem sufficient to induce a belief, that the testator must have intended a complete disinherison of this grandson; but it may -be, as his counsel had suggested, that the testator thought only to deprive him of that immediate benefit, which would result to the children and grandchildren, by the distribution of that portion of the property which he had directed should be made as soon as conveniently might be after his decease; and not of that which would arise from a division to be made, at a more remote period, ' when the life-interests should cease, and when the remainders should vest in possession, and become distributable.

The intention is to be gathered, however, from the whole instrument — the codicil and from what is' there expressed, not from probabilities merely, or conjecture. It is *to be sought for in the words used, and when the words themselves convey a meaning which is plain and intelligible, there is no room for in-tendment, different from the meaning so expressed. Evidence of an extrinsic character, or from circumstances, is admissible, for the purpose of explaining the meaning of words, and of pointing their application, when they are of doubtful import; but such evidence is not admissible, for the purpose of showing what a testator actually intended, as an independent fact, aside from the words used, for this might lead to a contradiction of his words. (Wigram on Wills 7, 65; 2 Cowen & Hill’s Notes 1384, 1425; 5 B.& Ad. 129.)

The operative words of this codicil are confined to the fifth clause of the will; they refer to no other parts of it. The gift revoked by it, So far as James R. Bayley is concerned, is the gift created by that clause, and the property which he would have taken under, or by virtue of, that part of the will, enlarged as it is by the second codicil, is the same property which is given over to the Theological Seminary in his place. So expressly referrible is the language of the codicil to that particular bequest, and to nothing else, that we are not at liberty to extend its application to any other. There is no room for explanatory evidence of any sort, in regard to the words used, by which we can give to them a more general meaning. The circumstances which led to the making of the codicil, and. the motives by which the testator was actuated, might produce a different conclusion, were the operative words of the codicil less precise and unequivocal, or in any respect open to construction, but those circumstances cannot be allowed to control the effect of words which admit of no ambiguity and require no interpretation. However reasonable the supposition, that the effect thus given to the codicil falls short of the testator’s real intention, and that he has labored under a mistake in regard to the comprehensiveness of the fifth clause of the will, or that there has been some accidental slip in the use of too few or too many words, in framing c0<^c^' we *canDLOt allow our conjectures to prevail, although they may appear to us well founded. If the testator has intended more than we can attribute to this last of his testamentary acts, it is a misfortune which can only be regretted, but cannot.be repaired. (Holder v. Howell, 8 Ves. 103.)

A very recent case in the English common pleas has just fallen under my observation, which serves to show that the plain import of words used by a testator must be adhered to in expounding the will, although the court might be convinced that the testator did not foresee the effect they might have to thwart his intention. It is the case of Doe ex dem. Blakiston v. Hazlewood (10 C. B. 544). There, a testator, by his will, devised an estate to his wife for life, remainder in fee to his nephew, with a proviso, that in case the testator’s wife should, at his decease, be enciente, the devise to the nephew was to cease, and the child was to take the remainder in fee. At the time of making the wdll, the testator had no child ; he was laboring under an illness, which he supposed would prove fatal to him; he, however, recovered from that sickness; a child was afterwards born to him in his lifetime. He then made a codicil, devising after-acquired property to such child; the wife was not enciente at the death of the testator. It was held, that the child born in the testator’s lifetime had no estate under the will, and as there was no posthumous child, the devise to the nephew took effect.

Cases were cited to the point, in behalf of the child, that the court should not adhere to the strict meaning of the words, but should give effect to the testator’s intention ; a different state of things having arisen from what was contemplated by him, at the time he made his will. White v. Barber (5 Burr. 2703) was strongly relied on, but held not to be law. *For the nephew, it was contended, that courts are not to conjee-ture what the testator intended, but are to construe the will according to the intention, as collected on the face and from the language of the instrument. Jekvis, C. J., observed, “ the rule is clear, that the intention must be apparent on the face of the will, and that there should be words used, capable of carrying that intention into effect. ■ The intention, at the time he made the will, was to provide for the posthumous child. The court could not depart from the then existing intention, and infer, that he intended, moreover, by that will, to provide for children to be born in his lifetime, if the event he then contemplated should not happen.” Maulé, J., in the course of liis remarks says, “ suppose such. an. intention to be ever so clearly evinced — suppose a recital in a will of such intention, yet, if there be no apt words used to provide for it, the answer will be quod voluit non dixit. Even if a testator had recited, at the end of his will, that he had provided for all his children, still, unless there were some words which could be construed to provide for. them, the court could not give effect to his intention.”

Cuesswell, J., is to the same effect, when he says, “ and even if we were to imagine that the testator did intend to provide for all his children (not confining his will to a posthumous child), I cannot say, that the words used are sufiicient to accomplish it.” "Williams, J., concurred.

The views which I have thus far presented of the will in question, and the several codicils, are substantially the same as those taken in the elaborate opinion delivered in the court below, on which the decree appealed from is founded. There is one point in the case, however, about which I am led to differ from that learned court, and that is, in regard to the addition made by the second codicil to the shares given by the fifth clause of the will. By the second codicil, the shares of all the grandchildren, under the fifth clause, including James R Bayley, is increased from the fifth of a third to the fifth of a half, or in other words from a fifteenth to a tenth of *the whole of that part of the estate. _ The opinion of the court below holds (and the decree is so), that the Theological Seminary is only entitled to the original fifteenth part, and not to the addition made to it by the codicil, for that still belongs to James B. Bayley. This is correct, provided the revocation and the gift over by the third codicil are restricted in their operation, not only to the fifth clause, but also to the original share which the grandson would have taken under or by virtue of that clause. I agree to the first part of the proposition, and have shown my concurrence in that view of the third codicil, so far as this, viz., that it is confined to the gift made by that clause to James R. Bayley, and cannot be extended to other gifts. But the question now is, what is the gift by the fifth clause, as it stood after the second codicil was made ? Does it not include, by the necessary effect of the codicil, the enlargement thereby made to the shares, or is the latter a new and distinct gift, by the codicil, while the gift by the fifth clause remains as it was originally made ?

The fifth clause is not revoked or superseded by the second codicil; if it were, the third codicil would be nugatory. It remains, therefore, as a substantive part of the will, and by it, the so-called “ rest and residue of the estate” is given. The gift is of an entirety, “to be divided,” however, into three equal parts, and one of these parts to be subdivided into five shares. Then comes the codicil, reciting that, by the fifth item, the testator had directed all his residuary estate to be divided in that manner, and distributed, &c., and that his son, James Barclay, to whom or for whose use one of the shares was given, having died, leaving no lawful issue, he, therefore, directs that instead of three shares, his said residuary estate shall be divided into two, and be distributed, so that his son Isaac shall have one, and the children of his deceased daughter Grace, the other — the latter to be divided among them in the same manner and subject to the same restrictions and trusts, &c., as declared in the fifth item. And this is followed *by an express devise and bequest of the said residuary estate accordingly.

Now, when we consider, that the making of a codicil, in the manner and form of this codicil, is a republication' of the will, bringing it down to the date of the republication, and making it, in effect, a new will, from that time, the codicil forming a part of it — for, in a general sense, a will consists of the aggregate contents of all the papers through which it is dispersed (1 Jarman on Wills 172; Williams on Executors 108) — there can be no impropriety in saying, that this codicil, operating only upon the fifth clause, becomes incorporated into and identified with it, making it speak from that time, as the clause of the will by which that part of the estate is disposed of in equal moieties, and one moiety subdivided into minor parts; so .that there is, in effect, but one gift, as was originally contemplated by this part of the will, though in different parcels, owing to the death of one of the intended devisees. It appears to me, therefore, that we shall do no violence to any rule or principle of law, nor to the language of the codicil, but that we shall consult both, by holding that James R,. Bayley’s augmented share under the fifth clause and the second codicil, combined, is taken from him and given over to the Theological Seminary.

Upon this view of the case, the decree appealed from would be modified, so as to give the appellants the one-tenth instead of the one-fifteenth part of all that portion of the estate mentioned in the decree. In other respects, and subject to this modification, I think, the decree should be-affirmed.

Decree reversed, and a decree made in accordance with the opinion of Gardiner, J. 
      
       It is a general rule in the construction of ivills, that the heir-at-law can only he disinherited by express devise, or necessary implication; in the construction of a will of doubtful meaning, every fair intendment is to be made in his favor. Bender v. Dietrick, 7 W. & S. 284; Hitchcock v. Hitchcock, 35 Penn. St. 393; Cowles v. Cowles, 53 Ibid. 175; Rupp v. Eberly, 79 Ibid. 141. The law favors a construction that will not tend to the disherison of the heir, unless such intention bo clearly expressed. Scott v. Guernsey, 48 N. Y. 106; s. c. 60 Barb. 163. An intention to disinherit an heir, even a lineal descendant, when expressed in plain unambiguous language, must be carried out; but it will not be imputed to a testator, by implication, nor when he uses language capable of a construction, which will not so operate. Low v. Harmony, 72 N. Y. 408, 414. Queers ? whether the rule is otherwise, when the heir is a Catholic priest or bishop 1 That the will of James Roosevelt was capable of two constructions, one in disherison of the heir, and the other not, is not deniable by any lawyer, who will carefully read the opinion of Judge Doer, in the court bv'ow, and the strong dissenting opinion delivered in the court of appeals.
     