
    Laura F. Bradhurst, App’lt, v. Augusta C. Field et al., Ex’rs, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 28, 1892.)
    
    Will—Construction .
    By the third clause of his will testator directed his trustees to invest an amount of money sufficient to realize an income of $3,000 annually, which, he directed to be paid to S. Subsequently he married S., and by a codicil revoked the third clause, and stating that it was his “ object and purpose to secure her such further sum as may be necessary for her support,” gave S. $l0,0l>0 in lieu of dower. Held, that there was neither language appropriate to the scheme of a trust for thejplaintifE’s life, nor any from which the court could reasonably infer such a plan, and there was no ambiguity which called for the admission of any evidence, and no room for construction.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered on decision of the court at special term.
    
      J. Frederic Kernochan, for app’lt; Abram Kling, for resp’ts.
    
      
       Affirming 45 St. Rep., 748.
    
   Per Curiam.

The plaintiff brought this action to obtain a ■ judicial construction of the will of Thomas C. P. Bradhurst, de-' ceased, and the object sought to be accomplished was to have a trust declared in the executors, under which she should be paid the sum of $10,000 annually during her life. ■ At the trial a motion was made for judgment upon the complaint on the ground that no cause of action was set forth; and the question is whether upon the allegations the plaintiff showed herself entitled to maintain such an action, and to adduce evidence to establish her right to the construction claimed. By the third clause of the will testator directed his trustees to invest an amount of money sufficient to realize ah. income of $3,000 annually from the investment, and to pay such income to Mrs. L. F. Seyton in semi-annual payments during her life. By a codicil to his will he provided as follows, viz.:

Third,. I have, by the third clause of my will, provided that there shall be paid to Mrs. L. F. Seyton, during the term of her natural life, the sum of three thousand dollars; and as I have since my making of my said will become married to her, and have since my said marriage advanced to her large sums of money, and as it is my object and purpose to secure her such further sum as may be necessary for her support, I therefore revoke and declare void the said third clause or subdivision of my said will, which provides for the payment of the said sum of three thousand dollars to said Mrs. L. F. Seyton, and each part thereof.

Fourth. I further provide and give, devise and bequeath to my said wife, and direct my said trustees shall pay to her, the sum of ten thousand dollars, and the same shall be in lieu of dower in my said estate.”

The will is unskillfully drawn and, as the appellant’s counsel points out, nothing in it calls for any trust scheme, or for the appointment of any trustees. But he argues that an examination of the will forces the conviction that the testator’s main intention is to provide a support for the plaintiff, which object is also stated in the codicil, and that to effectuate his intention we must read into the whole instrument a trust scheme for the plaintiff’s support, by meahs of an income paid to her for life. He insists that the codicil does not revoke the trust scheme of the will, and that the court should construe the bequest of the $10,000 as a substitute bequest of such a sum annually. He contends that such a construction could and would be given, if the court were put in possession of extrinsic evidence as to all the facts and circumstances .relating to the testator’s estate and family, and to the matters alleged in the complaint As we read the will, however, we find no ambiguity which calls for the admission of any evidence, and we think that we have no .warrant in its language for turning a plain gift of a sum of money into a trust for the annual payment of an income equal to that sum.

The third clause of the codicil unmistakably revokes the third clause of the will, and though it speaks of a purpose “ to secure her such further sum as may be necessary for her support,” that is either the expression of a purpose to be effectuated outside of a testament, or it is an inapt expression to indicate the subsequent legacy of $10,000. We have gone quite far in upholding a legacy by implication ; but, in the Matter of Vower’s Will, an illustrative case, we laid down the rule that to uphold a legacy by implication, the inference from the will of the intention must be such as to leave no hesitation in the mind of the court, and to permit of no other reasonable inference. So there, where the language was: “ This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate, she to make her election whether she accepts this provision -of my will within sixty days from the time of proving the same,” and the widow made her election rejecting the provision, we held that she was entitled to such share of the personal estate as the law would have given her had the deceased died intestate. The frame and tenor of the will were such as to render the words “ her distributive share of my estate ” meaningless, unless they were given-some force as being actually descriptive of a certain quantity of interest in the intestate’s property. But we have here no such necessity as calls upon us to give effect to pertinent and accurate-language. • We have neither language appropriate to the scheme of a trust for the plaintiff’s life, nor language from which we could reasonably infer such a plan.

The conclusion we have reached is that there was no room for construction in the testator’s last testament, and that we should be doing violence to that rule which forbids the cburt from making a new will for the testator if we were to sustain this appeal.

The judgment should be affirmed, with costs.

All concur-  