Redfield v. Redfield

to in this provision, had separated. By a codicil, dated April 25,. 1877, the above provision of the will was changed by the use of these words: “ Strike out and I revoke from the second and third lines in article third in said will these words:[1] and Jane L. Red-field and to my son Lewis Hamilton, Jr.,’ so that the legacy and bequest in said article will be to my said daughter Margaret and not to her and to said Jane L. and Lewis Hamilton, and yet subject to the same provisions and conditions as in said article contained to be left and performed by said Margaret alone, instead of my three children as in said article contained. And my daughter Margaret is further required to, and she will assume and pay to or for the benefit of my son Lewis H. Redfield, the sum of seventy-five dollars, quarter annually from the proof of my will, and for the term of twelve years, or only till his death if he shall die within that time”

By another codicil, dated July 14, 1881, a further change was made as follows: “I further alter article third of my said will and article third of ray codicil of 25th April, 1877, by and I hereby will and devise to said Margaret T. Smith and Lewis H. Redfield, equally, and as tenants in common, the store and lot therein described * * * and the said Margaret is released from paying to said Lewis H. and his heirs the payments therein provided.” After the death of the testator in 1882, Mrs. Smith and Lewis H. Redfield, the two children named in the last codicil, went into possession of the premises as tenants in common, but never paid anything to the widow in fulfillment of the condition providing for an annuity or otherwise. She died in 1888, and her administrator presented a claim for the annuity, which was ignored. To enforce that claim this action was brought, resulting in a judgment for the plaintiff, decreeing that the annuity to Mrs. Redfield, specified in the original will, was a charge upon the real estate and that there was due thereon §3,884, with interest thereon from October 4, 1890, and a sale of the premises was ordered for the satisfaction of this claim, and Mrs. Smith was adjudged liable to pay any deficiency arising upon such sale.

It appeared that in the year 1883, and after the will had been admitted to probate, that the widow executed and delivered in compliance with the will to the executors of her husband a release of her dower and of all interest in the real estate of which her husband died seized, as performance on her part of the conditions on which the annuity mentioned in the will was payable to her. The question is one of construction, involving the intention of the testator as to the obligation of the persons who took the store under his will, and the liability of the land itself for the payment of the annuity to the widow.

Mrs. Smith, whose interest in the real estate is bound by the judgment and who has been adjudged liable to pay any deficiency, has not appealed, but her brother Lewis H. and parties claiming under his title have. In their behalf it is urged, with much ingenuity, that as the testator, in framing the codicil last quoted, omitted all reference to the conditions upon which the store was devised in the original will, and in the earlier codicil, he

must be deemed to have devised it absolutely, free and clear from the charge of the annuity to his wife, or then, there being no liability in terms imposed by the last codicil upon Lewis H. Red-field, Mrs. Smith and her interest alone are charged. It is clear that the testator, by the third clause of his will, intended to devise the land to his three children jointly subject to the payment of the annuity. He also used words appropriate to charge the devisees personally, but they would be so bound without them upon acceptance of the gift. Brown v. Knapp, 79 N. Y., 186 ; Gridley v. Gridley, 24 id., 130; Bushnell v. Carpenter, 28 Hun, 19 ; aff’d, 92 N. Y., 270 ; Larkin v. Mann, 53 Barb., 267 .

The same intention is carefully preserved and clearly expressed in the codicil of April 25, 1877. The daughter, Jane L., and the son, Lewis H., are dropped out as devisees of this specific real estate, and the daughter Margaret made the sole devisee, subject to the annuity which is retained and subject to an additional charge of $300 per year in favor of Lewis H. from the time of proof of the will and during twelve years, or for life, in case he died before the expiration of that period.

If it was the intention of the testator, when executing the codicil of July 14, 1881, to devise the store to two of his children free from the lien and encumbrance of the annuity, there could be no reason for retaining the codicil of April 25,1877. The final intent which the argument for the appellants attributes to the testator would render that codicil utterly useless and meaningless, and yet the language used indicates his intention to modify, but not to revoke it entirely. He says: “I further alter article third in my said will and article first in my codicil of 25th April, 1877,” etc., thus manifesting the intention, as it seems to us, to retain both of the provisions referred to for certain purposes. He was still separated from his wife. Ho new provision was made for her and it is scarcely reasonable to suppose, under all the circumstances, that the provision in the will and earlier codicil, which was to furnish the consideration for a release of her dower and was to be a substitute for his obligation to pay her $400 per year, was entirely abandoned. Such a radical change in the scheme of the testator would naturally be expressed in clear terms. He used no language, however, indicating an intent to change the provision for an annuity or to substitute anything else in its place, and it is a general rule that a codicil will not operate as a revocation of previous testamentary provisions beyond the clear import of its language. Wetmore v. Parker, 52 N. Y., 462 ; 1 Redf. on Wills, 362 and note; 1 Jarman on Wills, 160, note 2; Willson v. Willson, 8 Cow., 56 .

Margaret was released from the payment of $300 per year to her brother, and it is reasonable to conclude that if the testator intended to release her, or the land devised to her, from any other burdens imposed by previous provisions, such intention would have been as clearly expressed. This is in accordance with the rule that an expressed intention to make a change in a will in one particular, negatives, by implication, an intention to alter it

in any other respect. Wetmore v. Parker, supra; Quincy v. Rogers, 9 Cush., 291 .

When the son, Lewis H., accepted the devise to him and Margaret jointly he became, as we have seen, personally liable for a share of the burden, and his interest in the land also became charged. As the value of the property is much more than the charge in favor of the plaintiff, and as Mrs. Smith does not complain in regard to the provision in the judgment for payment by her of any deficiency after the sale, it is plain that the judgment is as favorable to the son as the facts will warrant. We perceive no good reason for holding that his share of the land is relieved from the annuity in ease the testator intended to retain it all, and on that point the better construction of the language of the testator is that the land is devised under the last codicil to the two children named, subject to the annuity, as it was to the three, in the third clause of the will.

The judgment should be affirmed, with costs.

All concur, except Ruger, Oh. J., and Andrews, J., not voting, and Cray, J., absent.