
    Daniel F. Appleton et al., Resp’ts, v. Kate Fuller et al., Resp’ts, and Meta Fuller et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Will—Codicil—Construction.
    By tlie will of F. his executors were directed, after payment of debts, to-divide the estate into as many parts as he should leave children living, except one daughter, and after payment of annuities charged thereon, to pay to each of his children who should survive him an equal share of the net income; it also provided that at the death of any child its portion should go to its heirs in fee. By a codicil. F. revoked such portions of his will as-provided for his two sons, gave them legacies in lieu thereof, and provided that the trust estate should be divided into as many portions as he left, daughters surviving, and confirmed the trust provisions in all other respects. Held, that the daughters and their issue were alone entitled to share in the trust estate, and that the children of the sons had no interest, therein.
    Motion for new trial on case and exceptions.
    
      F. S. Wait, for app’lt, Meta Fuller; C. D. Brower, for app’lts,. W. M. & Bayard C. Fuller; E. E. Anderson, for pl’ffs, resp’ts ;. B. S. Weeks et al., for def’ts, resp’ts.
   Van Brunt, P. J.

This action was prosecuted to construe the will of W. J. A. Fuller and for an accounting by his executors.

The testator died on the 11th of March, 1889, leaving him surviving the defendant, E. C. Fuller, and the respondents, Kate Fuller, Fanny M. Man, Josephine 0. Krotel, Alice G. Wright, Sadie S. Fuller and Julia A Fuller, his only daughters, and the appellants, William M. and Bayard C. Fuller, his only sons. The respondents, E. A. Man and Margaret H. Man, are infants, and are the only children of said Fanny M. Man.

The respondent, E. P. Krotel, is an infant and only child of the said Josephine 0. Krotel. The appellant, Meta Fuller, is the only child of said William M. Fuller. The other daughters and the other son of the testator have no children or descendants.

He left a will dated November 28, 1888, and a codicil thereto-admitted to probate by the surrogate in April, 1889, and letters testamentary issued thereon to the plaintiffs, the executors.

After various bequests, by the ninth clause of the will the testator gave all the rest, residue and remainder of his estate to his executors in trust for the purposes thereinafter set forth. He then directs the payment of all thxes, assessments, and other lawful charges upon his estate; and that his real estate should be kept in good preservation and repair, and that it should be kept fully insured before the net income should be paid to any person under the will. He then directed his executors, after the payment of his just debts, to divide his property into as many portions as he should leave children living, not including his daughter Kate. This direction would have required the division of the estate into seven shares.

By the next clause of his will he directs his executors, during the life of his daughter Kate, to pay her $2,500 a year, which sum he had provided for in a previous clause of the will, and had directed should be deducted from the net income of the respective shares given and devised in trust. He then directed his executors during the life of his wife to pay her $3,000 a year in the same manner. He next directed his executors to pay in monthly payments to each of his remaining children who should survive him respectively, during the life of each, an equal part or share of the remaining net income of each of said respective portions or shares.

At the death of any such child, such child’s portion to go as a remainder in fee to his or her heirs.

In February, 1889, the testator published a codicil to his said will in the following language:

“ I hereby revoke and cancel such portions of my said will, bearing date November 28, 1888, as provided for my sons, William M. Fuller and Bayard G. Fuller, as beneficiaries of the trust therein created, and I hereby declare and will that the said trust shall be created and remain for the benefit of the remaining beneficiaries therein named (my wife and daughters), and the said trust estate shall be divided into as many shares as I shall leave daughters me surviving; in all other respects said trust provision s are hereby ratified and confirmed. And in lieu of the said provisions in favor of my said two sons, I hereby will and bequeath to each of them, William M. Fuller and Bayard 0. Fuller, $9,000 in bonds of the Jersey City News Company, which bonds or their equivalent, if they shall have been sold before the time of my death, shall betaken out of the said trust estate created by my said will.”

His sons have each received the $9,000 bequeathed to them.

The court below construed the will as providing that the trustees should divide the estate into five shares, being one for each daughter other than Kate, and that on the death of each daughter her share was to go to her child or children.

It is claimed upon the part of the appellant Meta Fuller, and by the appellants William M. Fuller and Bayard C. Fuller, that upon the death of her parent, William M. Fuller, she will become entitled to the same share as she would have taken under the will if there had been no codicil.

It is a cardinal rule of construction that all testamentary instruments are to be construed according to the intention of their maker; and the question presented is as to what the testator intended by the execution of the codicil which has been mentioned.

It is claimed upon the part of the appellant that no intention can be gathered from the language of the will on" the part of the testator to deprive his grandchildren of the provision which he had made for them in his original will; and if it had not been for the peculiar language of the original will in reference to the division of his estate, this agreement would have been of a very convincing character.

But upon an examination of the original will it would appear that the testator did not intend to make any provision whatever for his grandchildren unless the son or daughter, who was the parent of those children, was living at the time of his death. The provision is that the executors should divide his property into as many portions as he should leave children living; consequently if any child died prior to the death of the testator, leaving issue, such issue could not possibly inherit anything because there would be no portion whatever set aside for those grandchildren. Then the subsequent language also exhibits the same intention. He provides after the payment of the annuities that his executors shall pay in monthly payments to each of his remaining children who snail survive him respectively, during the life of each, an equal part or share of the remaining net income of each of said respective portions or shares, and that at the death of any such child such child’s portion shall go as a remainder in fee to his or her heirs. The idea that in order that a child, or its issue, should participate in the estate, it must survive the testator is set forth, and the only devise over is the child’s portion which they got under the will.

Now when we come to the codicil we find that the testator revokes such portions of his will as provided for his sons William M. and Bayard C. Fuller, and declared that the trust was to be created and maintained for the benefit of the remaining beneficiaries therein named (his wife and daughters), and that the estate should be divided into as many shares as he should leave daughters him surviving. In all other respects the trust provisions are ratified and confirmed. He then provides that in lieu of the said provisions in favor of his sons they should receive $9,000 each. The sons, therefore, have no portion in the trust estate created under the will, and, consequently, there could be no portion which will go to their children.

We are referred, however, to the rule laid down in Hard v. Ashley, 117 N. Y., 606; 28 St. Rep., 601, and Redfield v. Redfield, 126 N. Y., 466; 38 St. Rep., 516, that the will and codicil must be taken together and construed together as parts of one and the same instrument, and that the dispositions of the will should not be disturbed, unless it is necessary to give effect to the codicil.

It is to be observed here that if the effect is given to the- codicil which is claimed by the appellant, then the disposition therein attempted to be made might perhaps be absolutely void as contravening the statute, because the trust estate would have to be kept as a trust estate and the shares of the children of the sons could not descend or be ascertained until all the daughters had died, because each daughter is entitled to receive as long as she lives one-fifth of the net income óf the estate; and there would be at least six if not seven shares in remainder.

Such a result is not to be arrived at unless necessary, because a construction must be put upon the will and codicil which will give effect to all its terms rather than one which will declare any portion of it to be illegal and in contravention of law.

The eases cited are entirely different in their features from the one at bar.

In the case of Hard v. Ashley, the testator, after various devises and bequests (all termed by him bequests), among them a devise to Z. of a farm, for life, remainder to her children, gave all his residuary estate to the same parties in the same ratio and proportion as the foregoing bequests were given. By the codicil he revoked the devise to Z. and her children, and gave to her and her heirs a legacy of $8,000 in lieu and instead of said bequest, the testator having by his will fixed the value of the farm to Z. for life with remainder to her children at the sum of $15,000.

It was held that this revocation did not affect the right of Z. to a share in the residuary estate, but that the will was to be read without other change in that regard than the substitution of the amount of the legacy for the value of the farm devised, in proportioning the shares under the residuary clause.

Here it was apparent that there was no intention to disturb the residuary clause. The language of the testator was distinct. After reciting the bequest of the farm to Z. for life with remainder to the children, he says: “ I do now hereby revoke said bequest, as well the one to the children of Z. living at her death as the one to said Z., and in lieu and stead of such bequest I do hereby give to said Z. and her heirs $8,000.

■ It is clear there was no intention to deprive Z. of her interest in the residue which had been previously given.

So in the case of Redfield v. Redfield, supra, where a man had devised certain real estate to his daughters and son as joint tenants and charged the property with the payment of an annuity to his wife, which annuity was to be received by her in lieu of dower. By the codicil the testator directed that the devise be changed by striking out the names of one daughter and one son, and that it be given to the remaining daughter alone, but left it subject to the same provisions and conditions as were contained in the will, the same to be kept and performed by the legatee, and an annuity was given to the son which the legatee was required to assume and pay.

The testator made a subsequent codicil which he declared was to alter the provisions of the will and first codicil, by which he devised the premises to a daughter and son as tenants in common, and released the daughter from paying the annuity to the son which had been provided for by the first codicil. Ho reference was made to the condition imposed by the will and former codicil as to the annuity to the wife, and no other provision was made for her.

The court held that there was no exhibition of any intention to revoke the provision made for the wife in lieu of dower. And this is manifest by the fact that where he did desire to release the legatee from a charge which had been imposed by the first codicil he expressly does it by the second.

As already stated, these cases in no way support the proposition claimed by the appellants upon this appeal.

We are of opinion, therefore, that it was the clear intention of the testator by this codicil to revoke the provision which had been made for the two sons and their issue, leaving the daughters and their issue only to participate in the trust estate.

The motion for new trial should, therefore, be denied, with costs to the parties appearing to be paid out of the estate.

Daniels, J., concurs.  