Majority
p. 467Louisa D. Kane v. John Jacob Astor’s Executors, and others.Headnote
A testator, by his will, made and published, on the 4th of July, 1836, devised as follows: “ First.—To my daughter Dorothea, wife of Walter Langdon, Esquire, I give and bequeath all my household furniture, also the use, during her life, of all my silver plate, my new service of plate excepted. Also, I give and bequeath to her, for her life, the income of the following stocks, debt and money, that is to say: One hundred thousand dollars of the debt of the city of New York, bearing five per cent, interest; five hundred shaves of the capital stock of the Bank of America; one thousand shares of the capital stock of the Manhattan Company; twenty-five thousand dollars deposited with The New York Life Insurance and Trust Company, (for which I hold certificates:) all which income I devote expressly to her sole and separate use, to be at her own disposal when received by her, and not otherwise, and to be free from all claim, interest or interference of her husband. And to enable her to receive the said income, I order my executors, (in whose names the funds aforesaid are to stand during the life of my said daughter,) from time to time, as she may request, to execute such revocable letters of attorney as may be requisite to enable her to receive the said income. Also, I devise to her the house and lot on Lafayette Place, in the city of New York, being twenty seven feet, six inches, wide, and one hundred and thirty-seven feet, six inches, deep, now occupied by her; to have and to hold the same during her natural life, free from, and exclusive of, any interest or interference of her husband, and to her sole and separate use. And on her death, I give the said plate, (except as above), sums of debts and deposit, and stocks, to her then surviving issue, and their executors and administrators. And I devise the said house and lot to her then surviving issue, and their heirs and assigns for ever; intending, that if any of her children shall have died before her, leaving issue, such issue are together to take what their parent would have taken, if surviving. Second.—To John Jacob Astor Langdon, Eliza Astor Langdon, Louisa Langdon, Walter Langdon, Jr., Woodbury Langdon, Cecilia Langdon, and Eugene Langdon, children of my daughter Dorothea, or to such-of them as shall survive me, I devise all my lots on the easterly side of Lafayette Place, in the city of New York, and fronting thereon. Also my lots in the rear of my lots on the said easterly side of Lafayette Place, extending to the Bowery, and fronting thereon. Also, my lands in the said city, between Charlton street, Morton street, Greenwich street and Hudson’s river, being one hundred and-lots; to have and to hold the same to them, my said grandchildren, in equal shares, for and during their lives respectively. And on the death of each of them, my grandchildren, I give the share which he or she Shall have enjoyed for life, to their surviving issue, in fee simple, to be divided according to the number of their children; and in ease of death without issue then- surviving, I devise the share of such deceased to my said other grandchildren above named, thén surviving, in fee simple.”
p. 468The testator further devised as follows: “To my said grandchildren, Sarah Astor, wife of Bobert Boreel, Esq., Eliza Astor, Louisa and Cecilia, or to such of them as may survive me, I devise the four houses and lots fronting on the westerly side of Broadway, between Prince street and Houston street, now known, as numbers 579, 681, 583, and 587, extending in the rear to Mercer street; to have and to hold the same to them respectively, in equal shares, during their lives; and on the death of each I devise her share to her issue then surviving, to be divided according to the number of her children, and to their heirs and assigns for ever; and in case of death without issue then surviving, I devise such share to her then surviving sisters, and their heirs and assigns for ever. To each of my said grandsons, John J. A. Langdon, Walter Langdon, Jr., Woodbury Lang-don, and Eugene Langdon, and to each of my said grand-daughters, Eliza, ' Louisa, and Cecilia, on their respectively attaining the age of twenty-four years, I give twenty-five thousand dollars, and on their respectively attaining the age of thirty years, the further sum of twenty-five thousand dollars.” By various codicils to said will, other devises and bequests were made to Louisa Langdon, the grand-daughter of the testator.
By the sixth codicil, made and published on the 3d of June, 1841, the testator devised Us follows: “First.—As to all such shares, estates, and interests in land, (except the lot on the west side of Lafayette Place, mentioned beneath,) as are in my will, or in any codicil thereto, given on my decease to Louisa, daughter of Mrs. Dorothea Langdon, or to the issue of the said Louisa, X give one half thereof to the other children of my daughter Dorothea, to be taken and held as an increase of the shares or sums given to them and their issue in the same property; the other half I give to my executors in trust, to receive the rents, issues, and profits thereof for the life of the said Louisa, and to apply the same to her use, clear of any control, debts, or right of her husband thereto; and after her death, I give the same to her surviving children, or if she leaves none, to her surviving brothers and sisters, or their issue. Second.—As to all estates, rights, and interests in lands, stocks, personal effects or money, to which the said Louisa or her issue would have been entitled, under my will, or any codicil thereto, after the death of her mother, brothers, or sisters, I give the same to her brothers and sisters, and their issue, as an increase of their respective shares or interests in the same property. Third.—As to the two legacies of twenty-five thousand dollars each, and the share of water stock, to which the said Louisa would have been entitled under my will, and a codicil thereto, I revoke the two legacies entirely; I give the income of her share of stock to my daughter Dorothea, for life, and on her death, X give the capital to her other children, and their issue, in case of their decease. Fourth.—As to the lot on the westerly side of Lafayette Place, given to the said Louisa in a codicil to my will, X give the same to Cecilia Langdon, to be had and holden as if her name had been written in the devise thereof, instead of Louisa, with every advantage, power, and benefit, and subject to every condition, power, and limitation therein contained. Fifth.—I expressly authorize my daughter, Dorothea Langdon, by deed or will, to appoint and give to the said Louisa and her issue, or to her or their use, any part not exceeding in value one half of the real or personal estate by this codicil taken from Louisa and given to others. Last.—I publish this as a
p. 469codicil to my will, and altering and revoking the same and the codicils thereto, so far as a different disposition is made by the present codicil.”
On a complaint, filed by Louisa Langdon, against the executors, devisees and legatees, alleging that the devises and bequests, made to the plaintiff, by her grandfather, in the will and first five codicils, were not revoked, altered or affected by the sixth codicil, but that the said codicil, although attempting to revoke those devises and bequests, was uncertain, and insufficient for that purpose, and was otherwise wholly inoperative and void; and praying that the true meaning, construction, and effect of said will and the codicils, might be settled and determined, and the rights of the plaintiff, under the same, adjudged and declared; • and that the devises and bequests in her favor, might be declared valid, and the attempted revocation thereof, in the sixth codicil, might be declared and adjudged inoperative and void.
Reid, 1. That in the first clause of the sixth codicil, by which the testator gave the undivided half of all the property affected by that clause to his executors, in trust, for Mrs. Kane, during her life, and after death to her surviving children, or, if she should leave none, to her surviving brothers and sisters, or their issue, the words “her surviving children,”should be construed “issue her surviving;” and that the devise was a trust during her life, and on her death, a legal estate in her issue, with an executory devise over to her brothers and sisters, and their issue.
2. That the shares and interests in personal property, which vested in Mrs. Kane on the death of the testator, other than those enumerated in the third clause, were not affected or impaired by the sixth codicil, so far as her right was concerned ; and that the contingent interests in the same property, which were to devolve upon her issue, by substitution, in the event of her death before the termination of the precedent life interests therein, fell within the second clause of the sixth codicil.
S. That the sixth codicil was not void on account of the impossibility of executing the power conferred upon Mrs. Langdon, so as to give to her daughter Louisa, and her children, half “ in value," or any lesser valued share, in the estates and interests attempted to be taken from her and them by that codicil. That the power related to a part of the whole property given, and not to a portion of any one lot, parcel, or bequest.
t. That the provisions of the sixth codicil, or any essential part of it, were not so uncertain, vague, or doubtful, that the codicil should be declared void or inope- • rative.
5. That the property vested in the executors in trust, in the first clause of the sixth codicil, was not within the scope of the power given to Mrs. Langdon by the fifth.
6. That that power applied to the half part of the real estate interests given to Mrs. Langdon’s children, other than her daughter Louisa, and their issue, in the first clause, and to the whole of the real and personal interests given to them in the second clause of the sixth codicil; and that it operated to the extent of an undivided half of the half part so given in the first, and of the whole contained in the second clause.
7. That the lot described in the fourth clause of the sixth codicil, was subject to the exercise of the power.
p. 4708. That the power also applied to the residuary gift made to Mrs. Langdon’s other children, of her daughter Louisa’s share in the water stock mentioned in the third clause of the sixth codicil. But that it could not be applied to the income of the water stock, either as a beneficial power, or as a special power in trust..
9. That the legacy of the income of the.. water stock came within the operation of the power, not as a power technically, but as being thereby made a conditional legacy.
10. That what the sixth codicil works out, by its direct operation and effect, in favor of others, must be deemed as given by it to those others; and that, consequently, the two legacies of $25,000 each, taken from Louisa Langdon by that codicil, came within the scope of the power conferred on Mrs. Langdon.
11. That the power, properly construed, required the donee to give a life estate to her daughter Louisa, with remainder to her issue; and that by issue, was plainly meant, not merely those living at the testator’s death, or when the power was executed, but all the issue of Louisa during her life.
12. That an instrument made by Mrs. Langdon, in execution of the power by which she appointed and limited the estates, rights, and interests therein mentioned, to her daughter Louisa, “ and her issue, in as full and ample a manner as I can or may appoint and give under the provisions of the said codicil, or any part thereof,” although informally expressed, gave to Louisa, in connection with the will, an estate and interest for her life in all the property to which the power was applicable, including with it the income of the water stock, and to her issue, born and to be born, the remaining absolute estate, and interest in the same property.
That the issue living when the appointment was made took vested remainders, which would open to let in the others, in succession, as they should be born respectively. And that those born since the appointment were, therefore, vested with the same estates and interests, and to the same extent, as those born before it was executed.
It is a sound rule of construction, that the dispositions made by a will are not to be disturbed by a codicil, further than is absolutely necessary in order to give it effect: and a clear disposition made by the will is not revoked by a doubtful expression or inconsistent disposal in a codicil.
Although, in construing a will, courts are bound to give full effect to every part of it, and to single words as well as to sentences and paragraphs, yet it is a paramount principle that the court will carry out-the general intent of the testator. And where a particular word or sentence is repugnant to the general intent and design of the whole will, or tends to render it incongruous or insensible, such word or sentence must give way, rather than to sacrifice the whole scheme of disposition disclosed by the general tenor of the instrument.
(Before Oaklet, Ch. J., Sandeobd & Campbell, J J.)
The complaint of the plaintiff in this action, Louisa D. Kane, the wife of De Lancey Kane, one of the defendants, who sued by Alexander W. Bradford, as her next friend, alleged :—•
p. 471That the plaintiff was a resident of the city and county of New York. That she was the grand-daughter of John Jacob Astor, deceased, being the daughter of his daughter Dorothea A. Langdon, by her marriage with Walter Langdon, late of the city of New York, deceased; that the said John Jacob Astor departed this life at the said city and county of New York on the 29th day of March, 1848 ; and that at the time of his death the plaintiff, together with Eliza Wilks, the wife of Matthew Wilks ; Sarah Boreel, the wife of Robert Boreel; Cecilia Langdon, since married to Jean de Nottbeck; Walter Langdon, Jr., Woodbury Langdon, and Eugene Langdon, were the only surviving children of the said Dorothea A. Langdon, the plaintiff’s mother. That the said John Jacob Astor was at the time of his decease, and for many years previous thereto had been, the owner of a large amount of real and personal estate, worth several millions of dollars; and that in particular he was seized in fee simple of all those certain lots of land, real estate, and premises hereinafter more particularly set forth and described. The plaintiff further showed that on or about the fourth day of July, 1836, the said John Jacob Astor made and published his last will and testament in due form of law to pass real and personal estate, whereby among other things, he devised as follows:—
“ Fibst.—To my daughter Dorothea, wife of Walter Lang-don, Esquire, I give and bequeath all my household furniture • also the use, during her life, of all my silver plate, my new service of plate excepted. Also, I give and bequeath to her for her life the income of the following stocks, debts, and money, that is to say: one hundred thousand dollars of the debt of the city of New York, bearing five per cent, interest; five hundred shares of the capital stock of the bank of America ; one thousand shares of the capital stock of the Manhattan Company; twenty-five thousand dollars deposited with the New York Life Insurance and Trust Company, (for which I hold certificates,) all which income I devote expressly to her sole and separate use, to be at her own disposal when received by her, and not otherwise, and to be free from all claim, interest, or interference of her husband. And to enable her to receive the said income, I order my executors, (in whose names the funds aforesaid are
p. 472to stand during the life of my said daughter¡) from time to time, as she may request, to execute such reasonable letters of attorney as may be required to enable her to receive the said income:
“ Also, I devise to her the house and lot on Lafayette Place, in the city of New York, being twenty-seven feet six inches wide, and one hundred and thirty-seven feet six inches deep, now occupied by her, to have and to hold the same during her natural life, free from and exclusive of any interest or interference of her husband, and to her sole and separate use. And on her death I give the said plate, (except as above,) sums of debt and deposit, and stocks, on her then surviving issue and their executors and administrators : and I devise the said house and lot to her then surviving issue and their heirs and assigns for ever, intending that if any of her children shall have died before her, leaving issue, such issue are together to take what their parent would have taken, if surviving :
“ Second.—To John Jacob Astor Langdon, Eliza Astor Lang-don, Louisa Langdon, Walter Langdon, Jr., Woodbury Lang-don, Cecilia Langdon, and Eugene Langdon, children of- my daughter Dorothea, or to such of them as shall survive me, I devise all my lots on the easterly side of Lafayette Place, in the city of New York, and fronting thereon ; also, my lots in the rear of my lots on the said easterly side of Lafayette Place, extending to the Bowery and fronting thereon ; also, my lands in the said city between Charlton street, Morton street, Greenwich street, and Hudson river, being one hundred lots—to have arid to hold the same to them, my said grand-children, in equal shares, for and during their lives respectively. And on the death of each of them, my grand-children, I give the share which he or she shall have enjoyed for life to their surviving issue in fee simple, to be divided according to the number of their children ; and in case of death without issue then surviving, I devise the share of such deceased to my said other grand-children above named then surviving, in fee simple.”
The complaint alleged that the real estate mentioned in said devise was a portion of the real estate in this complaint above referred to as the property of the said John Jacob Astor at the time of his decease, and that the plaintiff was the same Louisa
p. 473Langdon therein named ; that in and by his said last will and testament, the said John Jacob Astor did further devise and bequeath as follows :—
“ To my said grand-children, Sarah Astor, wife of Robert Boreel, Esq., Eliza Astor, Louisa and Cecilia, or to such of them as may survive me, I devise the four houses and lots fronting on the westerly side of Broadway, between Prince street and Houston street, now known as numbers 579, 581, 583, and 587, extending in the rear to Mercer street—to have and to hold the same to them respectively in equal shares during their lives; and on the death of each I devise her share to her issue then surviving, to be divided according to the number of her children, and to their heirs and assigns for ever; and in case of death without issue then surviving, I devise such share to her then surviving sisters, and their heirs and assigns for ever :
“ To each of my said grand-sons, John J. A. Langdon, Walter Langdon, jr., Woodbury Langdon, and Eugene Langdon, and to each of my said grand-daughters, Eliza, Louisa, and Cecilia, on their respectively attaining the age of twenty-four years, I give twenty-five thousand dollars ; and on their respectively attaining the age of thirty years, the further sum of twenty-five thousand dollars.”
The plaintiff further alleged that the real estate mentioned in the said last mentioned devise and bequest was another portion of the' real estate referred to in the preceding part of the complaint as the property of the said John Jacob Astor, deceased, at the time of his decease, and that the said Louisa therein mentioned was the above named plaintiff; that in and by his last will and testament the said John Jacob Astor, deceased, did also devise and bequeath as follows :—
“ Tenth—All the rest, residue and remainder of my real and personal estate I give and devise to my son William B. Astor, to have and to hold the said real estate to him for his life ; and I authorise him to appoint the same after his death to and amongst his children and their issue in such shares, and for such estates and on such conditions as he may think fit by deed or' by will. And in case he shall leave no such valid appointment, I devise the same to his children and their heirs and assigns
p. 474for ever, including as well those now born as subsequently born children:
“ And I hereby charge upon the said residuary estate thus devised, portions of two hundred thousand dollars, to be settled upon each of his daughters and their issue in such manner as he may think fit, subject to the condition of their marrying with the consent of himself or his wife, or such persons as he may nominate in his will, which portions are to be set apart out of the real estate devised to him as above, and which, when set apart, are not to form any incumbrance upon the residue. And in case of his leaving no appointment, as aforesaid, these portions are to be considered as part of his daughters' shares on the division of the estate now devised among his children:
“ And as to the personal estate bequeathed to him, it is my will that he employ the same in the improvement of the real estate to him herein above devised, in such manner as he may think fit.”
The plaintiff further alleged that in and by the eleventh clause of his said will, the testator authorised every person who should take an estate under said will to terminate with his or her life, to lease the premises so devised for a term not exceeding twenty-one years, with the consent of any one of his executors ; and did also further give authority to such life tenants, in the words following :—“ Also, I do authorise any such tenant for life, with the assent of one of my executors uniting in the deed to manifest the same, to sell and convey in fee simple to the extent of one-half in value of the lands devised to such life tenant, in order to raise money for the improvement of the residue; for which application of the money so to be raised such executor shall make provision before giving such assent, and his uniting in the deed shall make the same an effectual conveyance to the parties accepting the same, who shall thereby be freed from seeing to the application of the purchase money.”
The plaintiff further alleged that the testator did, in and by his said will, empower his executors to make partition of estates devised under said will, in the words following:—“ I authorise my executors, at the request of any person or persons to whom
p. 475lands are herein devised in common, to set apart their shares in severalty; and thenceforth the limitations of future estates, applicable to the shares before separation, shall apply to the separate share, and they may charge the lands with sums for equality of partition.”
The plaintiff further alleged that on or about the 19th day )f January, 1838, the said John Jacob Astor duly made and published the first codicil to his last will and testament, in due form of law, to pass real and personal estate, whereby, among Dther things, he devised and bequeathed as follows :—
“ Second—Inasmuch as my grand-son, John J. A. Langdon, has departed this life, whereby two legacies of twenty-five thousand dollars each have become lapsed, I therefore add to the lands devised in the second item of my will to him and his brothers and sisters, in that item named, or to such of them as may survive me, three lots of land lying on the Westerly side of Lafayette Place, next north of a lot which in my will is given for life to Charles Bristed, and is above given for her life to my daughter ; each of which three lots is twenty-seven feet in width, and one hundred and fifty-five feet in depth, subject to and with the benefit of a gangway running from Art street across the rear of said lots parallel with Lafayette Place and twenty feet wide, and lying at a distance of one hundred and ten feet therefrom—which three lots of land I give to my said grandchildren, to have and to hold in equal shares as tenants in common for their lives respectively. And on the death of each I give his or her share to his or her surviving issue, in fee simple; and in case of death without surviving issue, I give such share to his or her other brothers and sisters in the same item named surviving in fee simple.”
The plaintiff further showed that she, the said plaintiff, was one of the devisees named in the said last devise as one of the brothers and sisters of the said John J. A. Langdon, and that the said estate was part of the property first referred to in the complaint and belonging to the said John Jacob Astor at the time of his decease. That on or about the 9th day of January, 1839, the said John Jacob Astor made and published the second codicil to his said last will and testament in due form of law to
p. 476pass real and personal estate, whereby he devised and bequeathed among other things as follows :—
“ First—In order more comfortably to accommodate my unfortunate son John, I have provided for the erection of a dwelling-house on Fourteenth street, in the city of New York, upon a certain piece of land which I attach thereto, bounded as follows : Beginning on the northerly side of Fourteenth street, one hundred and twenty-five feet westerly from its intersection with the westerly side of the Ninth Avenue, running thence northerly parallel with the said avenue to the south side of Fifteenth street, thence westerly along the same one hundred feet, thence southerly parallel to the line of the said Ninth Avenue to Fourteenth street, then along the same easterly one hundred feet to the place of beginning, which house I intend to furnish and provide for his convenience and that of the persons who from time to time shall take charge of his personal comfort : Now, therefore, I do hereby give to my son John the said house and land, with the furniture appropriated thereto, to have and to hold so long during his life as the same shall be used for his personal accommodation and convenience, with remainder to my daughter Dorothea, to be held by her so long during her life as she shall use the same, or the income thereof, for her own use, free from all control or interference of her husband, and so long as she or her husband shall not attempt to dispose of her interest therein, and shall not permit the same to be encumbered or taken under any incumbrance, but not longer. And in case during her life she or her husband, or any claiming under or against them, shall attempt to incumber or divest the same from her actual use, then I give the same to my executors in trust during her life, to receive the rents and profits thereof and apply the same to her use, for which her receipts shall be a full voucher to my executors:
“After her death I give.and devise the said lands and furniture one equal half part thereof to the then surviving children and issue of my daughter Dorothea—the other half thereof to the surviving children and issue of my son William, taking in fee simple and the issue representing its parent deceased.”
p. 477“ I give to my daughter Dorothea the income of one hundred thousand dollars, deposited in the New York Life Insurance and Trust Company, hearing interest at five per cent, per annum—to take and receive the income thereof so long during her life as she or her husband, present or future, or any one claiming under them, shall not attempt to incumber, charge, or assign the same, in whole or in part; and in case of any such attempt, then I give the said income to my executors in trust during her life to apply the same to her use, for which her own receipt shall be a voucher : And upon her death I give the said capital sum to her daughters Eliza, Louisa, and Cecilia, and to her sons Walter, Woodbury, and Eugene, and to such of these six children as may survive me, and to be equally divided among them, and to be accumulated, as to the share of' each one under the age of twenty-one years, for his or her benefit, and on their attaining that age respectively to be paid to them by my executors; and if any of them shall die before that age without surviving issue, his or her share shall be given to the survivors. Also, I give to the said six children of my daughter Dorothea, or to such of them as may survive me, one hundred thousand dollars of the public debt of the city of New York, bearing five per cent, interest (usually called the water loan), to be paid to each on attaining the age of twenty-one years; and the interest of the shares of those under that age to be accumulated for their benefit until that period; and in case any of them shall die before that age, without surviving issue, then his or her shares shall go to the survivors.
“ Item—I give to my said grandchildren, Eliza, Louisa, Cecilia, Walter, Woodbury, and Eugene, and to such of them as may survive me, five lots of land, fronting on the south side of Grand street, between Ludlow and Orchard streets ; and alsofour lots of land fronting the southerly side of Grand street, between Norfolk and Essex streets, in the city of New York, with their improvements respectively, to have and to hold the same, to my grandchildren, in equal shares, for their lives respectively. And on the death of each I give the share enjoyed by such deceased to his or her issue then surviving in fee simple, to be divided according to the number of his or her children ; and if such deceased shall have no surviving issue, then I give
p. 478the share of such deceased to the survivors of the said six, and to their heirs or assigns, for ever. As to which lots I direct and order that the eleventh article of my’will shall apply in all respects in the same manner as if this devise had been contained in the body of said will.”
The plaintiff further stated that she was the same person mentioned in the said last mentioned devise and bequest by the name of Louisa, daughter of the said Dorothea, and granddaughter of the said testator ; and that the real estate therein mentioned was another portion of the real estate in the complaint first referred to as the property of the said John Jacob Astor at the time of his decease. That the said John Jacob Astor, deceased, on or about the 3d day of March, 1841, also duly made and published, in due form of law, to pass real estate, the fifth codicil to his said last will and testament, wherein he devised and bequeathed as follows:—“ Fourth—I give unto my grandchildren, herein next named, the following lots of land on Lafayette Place, of which I have caused a map to be made, and the lots to be numbered from one to seven, each lot being twenty-seven feet in width on Lafayette Place, and to be bounded by lines perpendicular thereto, and extending to the above described site for the library, and if that shall be located on the easterly side of Lafayette Place, then extending to the rear of my lands there, namely : To my grand-son, William Astor, I give the southernmost lot, next to that of Charles Bristed, which lot now given is'number two ; to John Jacob Astor I give the next lot north, being number three; to Louisa D. Langdon the lot next north, being number four ; to Eliza Lang-don the lot next north, being number five ; and to my daughter, Mrs. Langdon, I give the two lots six and seven, the latter being a corner lot, forty feet front and narrowing to the rear, to have and to hold to them respectively and to their heirs and assigns for ever—provided, however, and on condition that no building be erected on the said lots (including also the lot of Charles Bristed) but dwelling-houses at least three stories high, and covering the full front of the lots, and the necessary offices on the rear of the lots. Provided, also, that it shall be lawful for my executors, at any time during the life of the devisee, to make and execute a settlement of the lots given to the said
p. 479ladies, securing the enjoyment to them as a separate estate of •the said lots during life, and a power of giving the same as they please among their issue, brothers and sisters, and their issue— such power to be discretionary with my executors—with power to the said ladies respectively of leasing for terms of years allowed by law. And I authorize my executors, at the request of any of the said grand-children (including Charles Bristed and his lot) to lay out any part of the personal estate, given to them or to their use respectively, in the erection of a suitable dwelling-house and its appurtenance on the lot so given fronting Lafayette Place.”
The plaintiff further showed, that she was the same Louisa Langdon mentioned in the said last mentioned devise and bequest, and that the premises therein described were a portion of the real estate in the complaint first above referred to. That on or about the 3d day of June, 1841, the said John Jacob Astor made the sixth codicil to his last will and testament, wherein among other things, he devised and bequeathed as follows : “First—As to all such shaves, estates, and interest in land (except the lot on the west side of Lafayette Place, mentioned beneath) as are in my will or in any codicil thereto, given on my decease, to Louisa, daughter of Mrs. Dorothea Langdon, or to the issue of the said Louisa, I give one-half thereof to the other children of my daughter Dorothea, to be taken and held as an. increase of the shares or sums given to them and their issue in the same property; the other half I give to my executors, in trust, to receive the rents, issues, and profits thereof, for the life of the said Louisa, and to apply the same to her use, clear of any control, debts, or right of her husband thereto ; and after her death I give the same to her surviving children, or, if she leaves none, to her surviving brothers and sisters, or their issue.
“Second—As to all estates, rights, and interest in lands, stocks, personal effects, or money, to which the said Louisa, or her issue, would have been entitled under my will, or any codicil thereto, after the death of her mother, brothers, or sisters, I give the same to her brothers and sisters, and their issue, as an increase of their respective shares, or interest in the same property.
p. 480“ Third—As to the two legacies of twenty-five thousand dollars each, and the share of water stock to which the said Louisa would have been entitled under my will arid a codicil thereto. I revoke the two legacies entirely: I give the income of her share of stock to my daughter Dorothea for life; and on her death I give the capital to her other children, and their issue, in case of their decease.
“ Fourth—As to the lot on the westerly side of Lafayette Place,, given to the said Louisa, in a codicil to my will, I give the same to Cecilia Langdon, to be had and holden as if her name had been written in the devise thereof, instead of Louisa, with every advantage, power, and benefit, and subject to every condition, power, and limitation therein contained.
“ Fifth—I expressly authorize my daughter, Dorothea Lang-don, by deed or will, to appoint and give to the sfeid Louisa, and her issue, or to her or their use, any part not exceeding in value one-half of the real or personal estate by this codicil taken from Louisa and given to others.
“ Last—I publish this as a codicil to my will, and as altering and revoking the same and the codicils thereto, so far as a different disposition is made by the present codicil.
“ In witness whereof, I have hereunto set my hand and seal, this third day of June, in the year of our Lord one thousand eight hundred and forty-one.”
The plaintiff further alleged, that she was the same Louisa Langdon, mentioned in the last mentioned codicil, and that the said testator departed this life without having revoked or altered his said will or the said codicils, so far as they related to the plaintiff, and the devises and bequests to her, except as stated in the complaint.
That the said will and codicils had been duly proved before the surrogate of the city and county of New York, and letters testamentary granted thereon to William-B. Astor, Daniel Lord, James Gallatin, and Washington Irving, four of the executors named in the said will and codicils, who alone of said executors had assumed and taken upon themselves the duties of such executorship ; that they, the said William B. Astor, Daniel Lord, James Gallatin, and Washington Irving, had also assumed and taken upon themselves the duty of trustees, as provided in
p. 481the said will and codicils ; and ever since the death of the said testator had assumed to act, and were still acting as such ; and that as such executors and trustees, they had taken possession of a large portion of the real and personal estate, so devised and bequeathed to the plaintiff, and claimed to hold and manage the same as trustees thereof under the said will and codicils, and withheld the same from the possession and control of the plaintiff, but what portion of said real and personal estate in particular, had been or was so held and managed by them as such trustees, the plaintiff was unable to state, but she prayed that the particulars thereof with the manner in which the said personal estate was invested, might be fully set forth by the said executors and trustees, in their answer.
The plaintiff further showed, that shortly after the decease of the said John Jacob Astor, and in the month of April, 1848, the said Dorothea Langdon, the mother of the plaintiff, addressed, and caused to be delivered to the said executors and trustees, the following note in writing :—
“ To W. B. Astor and the Executors.
“ I wish my daughter Louisa reinstated in the share that my father has placed in my authority.
The plaintiff further showed that on or about the 6th day of April, in the year 1848, and after such notification to said executors in writing, the said-Dorothea A. Langdon, the mother of the plaintiff, signed and sealed an instrument of which the following is a copy :—
“ Know all men by these presents, that I, Dorothea A. Lang-don, of the city of New York, widow, under and by virtue of .a power of appointment, vested in me, by the provisions of a codicil to the last will and testament of John Jacob Astor, late of the city of New York, deceased, which said codicil bears date the third day of June, one thousand eight hundred and forty-one, have appointed and given, and do hereby appoint, give, and convey to Louisa Langdon, wife of De Lancey Kane,
p. 482and her issue ; such part of the real and personal estate by said codicil taken from the said Louisa and given to others, as in and by said codicil I am authorized to give and appoint to the said Louisa, and her issue, to have and to hold the same, and every part and parcel thereof, unto the said Louisa and her issue, in as full and complete a manner as I can or may appoint and give under the provisions of said codicil, or any part thereof. In witness whereof, I have hereunto set my hand and seal, this sixth day of April, one thousand eight hundred and forty-eight.
“ Dorothea A. Langdon. [l. sj
“ Signed, sealed, and delivered in presence of,
, “New York, April 11, 1848.”
. And the plaintiff further showed, that the said instrument was subscribed by the said Dorothea A.Langdon, in the presence of Walter Langdon, who became subscribing witness thereto, and was thereafter delivered to the said plaintiff. That thereupon, after the delivery thereof to the plaintiff, the said Dorothea A. Langdon, on the 12th day of June, 1848, caused a copy of said instrument to be sent to the said executors, with a notice in writing, of which the following is a copy :—■
“ To the Executors of the will of John. Jacob Astor, deceased.
“ Mrs. Langdon wishes me to address you, in her name, and make the following communication :—
“ Mrs. Langdon has read an extract from, your minutes, sent by you to hen- children, and thinks these li-nes necessary in answer. Soon after her father’s death, Mrs. Langdon signed an instrument of restoration, in behalf of her daughter, Mrs. Kane, of which enclosed, is, she believes, a correct copy, Mr. Kane having the original. Mrs. Langdon wishes me to ádd, that she desires, by said instrument, to restore to. Mrs. Kane all she may control by the sixth codicil of her father’s will, without, how
p. 483ever, pretending to understand the extent, legal meaning, or power of the authority given to her.
“ Yours, very respectfully,
The plaintiff further alleged that the lot on the westerly side of Lafayette Place, devised to her, and referred to in the fourth clause of the said sixth codicil, was claimed by Cecilia Langdon, now Cecilia de Nottbeck, under, and by virtue of said clause in said, codicil. That for some time after the decease of the said John Jacob Astor, the plaintiff received one-fourth of the rents and profits of the said real estate, but that said one-fourth of said rents was subsequently, through the intervention of the said defendants, or some or one of them, collected and received- and placed on deposit in the New York Life Insurance and Trust company, and withheld from the plaintiff; but what amount had so been collected and deposited she did not know.. That one other fourth part of the rents and profits of the said real estate she had received in her own right, and to her own use and benefit, and without the interference or control of any of the said defendants. That as to the remaining one-half of the rents and profits of the said real estate, she had not been allowed to receive the same, except through the said executors and trus> tees, the said executors and trustees claiming to receive and pay the same as trustees, under the first clause of the said sixth codicil. And the said plaintiff further stated, that, except as aforesaid, she had not received any of the real or personal property devised and bequeathed to her by said will and said codicils, nor the interest thereon. That by the said executors and trustees-she had been actually and entirely excluded from all possession,, care, and control of a large portion of the real and personal property devised and bequeathed to her, as aforesaid, by her grandfather, the said John Jacob Astor. ' The plaintiff further alleged, that she was advised, and believed, and therefore insisted, that the said devises and'bequests to her, by the said testator, were not, nor was either of them revoked, or in any way-altered or affected by the sixth codicil to the said testator’s last will and testament; and that the sixth codicil, wherein a partial
p. 484■revocation was attempted to be made, was uncertain and insufficient for that purpose, and otherwise wholly inoperative and void, and did not in any way prejudice or impair the said devises and bequests, or any of them ; and that the same are not, in any- way, revoked or cancelled. That she was further advised, and believed that if the said sixth codicil was operative, as .a revocation of any of the said devises and bequests in the said last will and testament, and in the said several other codicils contained, or any of them, or any part thereof, that then, under and by virtue of the said sixth codicil, and the power of appointment therein contained, and the due execution thereof, as hereinbefore set forth by the said plaintiff, she was entitled to the real and personal estate devised and bequeathed to her ■by the said will and the said several other codicils thereto in like manner, and to the same extent as if said sixth codicil had not been executed. The plaintiff further stated, that under and by virtue of the said will and codicils, the said executors and trustees, and the defendants, Robert Boreel and Sarah, his wife ; Matthew Wilks and Eliza, his wife; Jean De Nottbeck and Cecilia, ¡his wife; Walter Langdon, Woodbury Langdon, and Eugene Langdon, and the said Dorothea A. Langdon, claimed and set up various rights and interests in and to- the said real and personal estate so .devised and- bequeathed to the plaintiff, which were inconsistent with, and hostile to her just rights and claims under the said will and codicils, and which greatly embarrassed and obscured her title thereto, and-her enjoyment thereof, and -of the rents and profits of the same, and which embarrassments and obscurities could only be removed by the judgment of this court. That no person other than the defendants above named, were interested in, or claimed any title to, or any rights or interest in, the said real and personal property, or any part thereof, to her knowledge or belief; and that the defendants, 'Walter Kane, De Lancey Kane, jr., and Nicholson Kane, were the children of the plaintiff by her marriage with her husband, the said defendant, De Lancey Kane.
. The plaintiff, therefore, prayed judgment, that the true meaning, construction, and effect of the said will, and the said several codicils, might be settled and determined by this court, and the -rights., of the said, plaintiff and of the said defendants, under the
p. 485same and under the said appointment, might be adjudged and declared in and by said judgment. That the said devises and bequests in the said will, and in the first, second, and fifth codicils, might be adjudged and declared valid in law, and to have vested the title to the real and personal estate therein mentioned in the plaintiff, according to the intent of the same. That the said attempted revocation of the said devises and bequests, in and by said sixth codicil, might be declared and adjudged inoperative and void. That the said executors and trustees, and other defendants, might, be adjudged and declared liable to, and might be directed to account for, and pay over to the plaintiff, the rents, income, and profits of the said real estate, and the accumulations thereof; and also such personal estate as under said will and codicils the said plaintiff was entitled to. That it might also be adjudged and declared that the plaintiff was entitled to the possession and enjoyment of all the said real and personal estate, and the rents, income, and profits thereof, and that the said executors and trustees "might be adjudged to yield and surrender such possession to her, and to assign and convey to her all leases of the said real estate, and all the said personal estate, and the stocks, securities, and investments in which the same consisted, and by which the same was held, and to desist and refrain from interfering with the said real and personal estate, and every part thereof, and from molesting the said plaintiff in the enjoyment and use thereof: and for general relief.
The defendants, the executors of the last will and testament of John Jacob Astor, deceased, by their answer to the complaint, admitted the making of the will and several codicils thereto, by the said John Jacob Astor, deceased, at the dates in the complaint expressed, and that extracts therefrom were contained in the complaint. They further stated, that George B. Smith had, in the lifetime of the testator, and immediately before and at the time of his decease, collected the rents of all the real estate in the city of New York, devised to the complainant, in any part of the said will and codicils, and after the death of the said testator, he continued, with the assent of all parties, to collect the said rents. That having been in the regular course-of rendering his accounts at the office of the testator, he con-
p. 486tinned after his death to do so at the same office, continued for the purposes of the estate by the defendants, as executors. That doubts or difficulties were suggested among the children of Mrs. Dorothea Langdon, as to the rights and interests of the said plaintiff in the real estate given to her, whereupon she forbore to receive a part thereof, namely, one-fourth part thereof, and the same was paid over by the said George B. Smith, as collected by him from time to time, until the second day of June, in the year of our Lord eighteen hundred and forty-nine, to the defendants, as mere depositaries thereof, claiming no right thereto, and with the knowledge and assent of the plaintiff; and the said fourth part of the rents was deposited, from time to time, with the New York Life Insurance and Trust Company, and was still there deposited for the benefit of the person or persons who shall be entitled thereto, the defendants having no claim thereto on their own account. That no arrangement having been made among the claimants of the said fourth part, the defendants, at a meeting on the eleventh day of July, 1849, came to the conclusion expressed in a minute, which was communicated to the complainant, expressing that the defendants desired Mrs. Kane and Mrs. Langdon’s children to decide how the one-fourth interest of Mrs. Kane, heretofore received by the executors and deposited in the New York Life Insurance and Trust Company, should be disposed of, the executors declining to have any further connection with it; and the defendants no longer received the said fourth part of the said rents, nor any part thereof. And as to two other fourth parts of the said rents, the defendants alleged that they had been accounted for and paid by the said George B. Smith to them, as trustees of the said estate, for the plaintiff, and as such, the defendants had applied the same to the use of the plaintiff, by payments to her or to her attorney; and they had in their hands one hundred and three dollars and seventy cents, not yet called for, but which they were, and always had been, ready, as trustees of the plaintiff, to pay to her or for her use ; and the defendants annexed thereto, in schedule B, a statement of all their receipts as such trustees, and of their payment in respect thereof. And the defendants alleged that they had not received, or in any manner intermeddled with any other of the real estate claimed by
p. 487the plaintiff in her complaint, nor with any other of the rents, issues, or profits thereof; and they had received no rents from the lot on Lafayette Place, mentioned in the codicil of June, 1841. That, as to the personal estate devised or given to the plaintiff, the only part thereof which was in the hands of the defendants, was the share or sixth part of the legacy, in the codicil of January 9th, 1839, by which the testator gives to six of the children of his daughter Dorothea, or to such of them as should survive him, one hundred thousand dollars, of the public debt of the city of New York, bearing five per cent, interest, usually called the water loan. That the said share was the share of water stock mentioned in the third item of the codicil of June 3,1841; and that the defendants had always been ready and willing to transfer and pay over the same, if the parties entitled thereto were certainly determined : but that the said Dorothea Langdon had declined to acknowledge or admit the instrument bearing date the sixth day of April, 1848, set out in the complaint to be binding on her, and had since that time caused copies of other dispositions of the share of the stock aforesaid to be notified to the defendants, a copy of which was annexed to the answer, marked C, 2; and that the defendants thereupon had set apart the interest by them received on the one-sixth part of the said one hundred thousand dollars of stock, which sixth part was still held by these defendants, and that they had deposited the said interest in the New York Life Insurance and Trust Company of New York. ■
The defendants alleged that they had not, as to any other of the real or personal estate given by the said will and codicils to the plaintiff, excluded her from the enjoyment thereof, nor as to such estate, real and personal, as is above mentioned, otherwise than is above mentioned. And the defendants insisted that the codicils to the will of the testator, and each and every’ of them, were in all respects valid : and as to all the rights and claims in the complaint set up against the defendants, they submitted themselves to the order and judgment which should in this belief be made, betweeñ and among the other claimants thereof.
Schedule C, 2, referred to in the answer of the executors, contained the following instruments, viz.:
p. 488. “ To all to whom these presents shall come, I, Dorothea A; Langdon, of the city of New York, widow of Walter Langdon, of said city, deceased, send greeting : Whereas, my father, John Jacob Astor, of the city of New York, deceased, did, in and by a certain instrument in writing or codicil to his last will, bearing date the ninth day of January, in the year one thousand eight hundred and thirty-nine, admitted to probate as part of the last will and testament of said John Jacob Astor, give to six of my children, including Louisa (wife of De Lancey) Kane, legacies of certain water stock, and did, by a certain other instrument in writing or codicil. to said will, bearing date the third day of June, in the year one thousand eight hundred and forty-one, revoke the said legacy of water stock to said Louisa Kane, and gave the income thereof' to me for life. Now therefore know ye, that in consideration of the premises, and of my natural affection for said Louisa—I have granted, bargained, sold and assigned, and by these presents do grant, bargain, sell and assign, unto the said Louisa Kane and her issue, the one-half part of said income so given to me for life : To have and to hold the same unto the said Louisa and her issue for my life for -her and their use for ever, in like manner as though I could have appointed and did appoint the same to the said Louisa and her issue, under the power contained in said last mentioned codicil over other subjects therein mentioned : upon condition, nevertheless, that ah instrument executed by me, pursuant to said power, dated the eleventh day of April last, duly proved and recorded, be accepted by "them' in lieu and stead of any other alleged prior execution thereof: and that they relinquish all claim to any such alleged prior execution thereof.
“ In witness whereof, I have hereunto set my hand and seal, this eleventh day of April, in the year one thousand eight hum dred and forty-eight.
“ Dorothea A. Langdon,” [l. s.]
“ To all to whom these presents shall come, I, Dorothea A. Langdon, of the city of New York,,widow of Walter Langdon, of the same place, deceased, send greeting : Whereas, in a certain instrument bearing date the third day of June, in the year one thousand eight hundred and forty-one,.admitted to probate
p. 489by the surrogate of the city and county of New York, as a part of the will of my father, John Jacob Aston, deceased, by way of codicil; I am authorized by deed or will to give to my daughter Louisa (wife of De Lancey) Kane, and her issue, or to her or their issue, any part not exceeding in value one-half of the real or personal estate by that codicil taken from said Louisa and given to others : And whereas, in said instrument one-half of such shares, estate, and interest in land as were in my said father’s will, or in any codicil thereto, given to the said Louisa, (except a certain lot on the west side of Lafayette Place, therein mentioned,) is given to my other children: and the other half part of said last mentioned shares, estate, and interest, except as aforesaid, is given to his executors in trust' to receive the rents, issues and profits thereof, for the life of the said Louisa, and to apply the same to her use. And, whereas, in said instrument all estates, rights and interest in lands, stocks, personal effects or money to which the said Louisa or her issue would have been entitled under such will or any codicil thereto, after the death of myself or my children, other than the said Louisa, is given to my other children and their issue. And whereas, in said instrument, two legacies of twenty-five thousand dollars each, to the said Louisa, and a legacy of water stock, to which the said Louisa would have been entitled under the said will and codicil thereto, were revoked, and the income of said stock was given to me for my life, and the capital thereof in remainder to my other children and their said issue. And whereas, no instrument, clearly expressing my intent in relation to the execution of said power, has been yet formally executed by me. Now therefore, know ye, that in consideration of the premises, and in order to execute said power contained in said instrument by virtue thereof: I do hereby appoint and give to the said Louisa Kane and her issue, one-half of the following interests or estates above described, that is to say : Of the said one-half given to my children as aforesaid, of the shares, estate, and interest in lands, (except the said lot on the west side of Lafayette Place, before mentioned,) given by said will to the said Louisa: Also of the other half thereof given to the said executors in trust as aforesaid : Also of the estate, right and interests given to my said other children and their issues
p. 490as aforesaid, in lands, stocks, personal effects of money, to which the said Louisa or her issue would have been entitled as aforesaid, after my death or the death of my said children, (except the said water stock.) Also of the said two legacies of twenty-five thousand dollars : To have and to hold the same to the said Louisa Kane and her issue: And I do further, by virtue and in execution of the said power, appoint and give to the said Louisa Kane and her issue after my death, one-half of the capital of said water stock, or any proceeds thereof: or the moneys which ought to be employed in purchasing the same, or my interest in the estate of my said father, by reason of the said legacy of said stock and gift to me of the same : To have and to hold the same after my death to the said Louisa Kane and her issue, in remainder for her and their use.
“ In witness whereof, I have hereunto set my hand and seal, the eleventh day of April, in the year one thousand eight hundred and forty-eight.
“Dobothea A. Langdon.” [l. s.]
The answer of Dorothea A. Langdon denied, that John Jacob Astor, deceased, made any will or codicils containing the matters for those purposes respectively recited in the complaint or any of them, save and except only the sixth codicil in the said complaint mentioned, and she alleged that the said John Jacob Astor having made a certain will and certain codicils thereto, among which was- the said sixth codicil, did afterwards in his lifetime and on the eleventh day of January, 1845, make his last will and testament in due form of law to pass real and personal estate, which last mentioned will was, and consisted of such previous will and the codicils thereto, and was, after the death of the said John Jacob Astor, in due form of law, proved and admitted as a will of real and personal estate by the surrogate of the city and county of New York, to which will so proved, or the record thereof, the defendant referred. She insisted that the alleged devises to the plaintiff by the testator (if any) were cancelled and revoked by the said sixth codicil and otherwise as aforesaid, and that the said sixth codicil was not uncertain or insufficient for the purpose of such revocation, or in any wise inoperative or void. And she denied that by
p. 491reason of the alleged power of appointment in the said sixth codicil contained, and any execution thereof, or otherwise, the said plaintiff was entitled to the real and personal estate alleged in said complaint to have been devised and bequeathed to the plaintiff by the alleged will and codicil in said complaint mentioned, or either of such estates in like manner, and to the same extent as if the said sixth codicil had- not been executed or in any manner or to any extent. That the said alleged power of appointment in the said complaint mentioned, and the said alleged execution thereof by the defendant Dorothea A. Lang-don, in the said complaint also mentioned, did not nor did either of them extend to, or embrace, or in anywise affect any other or greater portion of the estate, real and personal, alleged in the said complaint to have been devised and bequeathed to the said plaintiff, or appearing in terms to have been devised and bequeathed to the said plaintiff by the alleged will and codicils mentioned in the said complaint, than the one equal, undivided fourth part of such real and personal estate ; nor did the same power and execution thereof, or either of them, in any wise affect, extend to, or embrace the lot on the westerly side of Lafayette Place, mentioned in the said complaint as being referred to in the fourth clause of the said sixth codicil, or an)-' part of such lot or any interest in the same. And she insisted that the alleged devises and bequests in the alleged will and first, second, and fifth alleged codicils in the"said complaint mentioned, ought not to be adjudged or declared valid in law, or to have vested in the said plaintiff the title to the real and personal estate therein mentioned according to the intent and meaning of the same ; because such alleged will and codicils were not, nor was either of them, a will or codicil of the said testator as alleged in said complaint.
The same answer was put in by Robert Boreel and Sarah his wife, Matthew Wilks and Eliza his wife, Walter Langdon and Woodbury Langdon ; also, by Jean de Nottbeck and Ceci-' lia his wife. General answers were put in for the infant defendants, submitting their rights and interests to the protection of the court.
Issue being thus joined, the cause was referred to B. W. Bonney, Esq., to take and report the testimony. On the 7th day of
p. 492May, 1851, the cause came on to be tried' at a special term of the court, on the pleadings, and on the report of the referee, a trial by jury being waived by the counsel for the respective parties. It was thereupon ordered and decreed that the complaint be dismissed with costs, and (the attorneys for all the defendants consenting thereto,) that the plaintiff have leave to appeal to the general term without filing the security required by law. Thereupon the plaintiff appealed to the general term.
J. J. Ring, A. W. Bradford, and S. Jones, for the plaintiff.
A. The testator, John Jacob Astor, by his will, made July 4,1836, devised and bequeathed to the plaintiff, as follows, viz.: (I.) “ To John J. A. Langdon, Eliza A. Langdon, Louisa Lang-don, Walter Langdon, Jr., Woodbury Langdon, Cecilia Lang-don, and Eugene Langdon, children of my daughter Dorothea, or to such of them as shall survive me,” certain lots on Lafayette Place ; on the Bowery and Canal, between Charlton, Morton and Greenwich streets, and the Hudson river, “ to have and to hold the same, to them, my said grand-children, in equal shares, for and during their lives respectively. And on the death of each of them, my grand-children, I give the share which he or she may have enjoyed for life, to their surviving issue, in fee simple, to bo divided according to the number of their children ; and in case of death without issue then surviving, I devise the share of such deceased to my said other grandchildren abovenamed, then surviving, in fee simple. (2.) To my said grand-children, Sarah Astor, wife of Robert Boreel, Eliza Astor, Louisa and Cecilia, or to such of them as may survive me, I devise four houses and lots on the westerly side of Broadway, &e.,—To have and to hold the same to them respectively, in equal shares, during their lives; and on the death of each, I devise her share to her issue then surviving, to be divided according to the number of her children, and to their heirs and assigns for ever ; and in .case of death without issue then surviving, I devise such share to her then' surviving sisters, and their heirs and assigns for ever.” (3.) On the decease of J. J. A. Langdon, the testator, by a codicil made January 19, 1838, devised as follows: “Inasmuch as my grandson, John J. A.
p. 493Langdon, has departed this life, whereby two legacies, of twenty-five thousand dollars each, have become lapsed, I therefore add to the lands devised in the second item of my will to him, his brothers and sisters, in that item named, or to such of them as may survive me, three lots of land lying on the westerly side of Lafayette Place, Ac.; which three lots of land I give to my said grand-children, to have and to hold in equal shares, as tenants in common, for their lives respectively. And "on the death of each, I give his or her share to his or her surviving issue, in fee simple; and in case of death without surviving issue, I give such share to his or her other brothers and sisters, in the same item named, surviving, in fee simple.” (4.) By a codicil, made January 9th, 1839, the testator devised as follows : “I give to my said grand-cliildren, Eliza, Louisa, Cecilia, Walter, Woodbury, and Eugene, and to such of them as may survive me, five lots of land fronting on the south side of Grand street, Ac., to have and to hold the same to my grand-children, in equal shares, for their lives respectively. And on the death of each, I give the share enjoyed by such deceased to his or her issue then surviving, in fee simple, to be divided according to the number of his or her children; and if such deceased shall have no surviving issue, then I give the share of such deceased to the survivors of the said six, and to their heirs or assigns for ever.”B. (1.) The testator, by his will, bequeathed to Mrs. Langdon, certain personal and real estate for life, “ and on her death,” ho gave the same to “ her then surviving issue,” “ intending that if any of her children shall have died before her., leaving issue, such issue are together to take what their parent would have taken, if surviving.” (2.) By the codicil of January 9tli, 1839, the testator gave the use of certain property, in 14th street, to his son John, with remainder to Mrs. Langdon, during her life, and on her death, one equal half part thereof, “ to the then surviving children and issue of my daughter Dorothea,” “ taking in fee simple, and the issue representing its parent deceased.” (3.) By the same codicil, he gave to his daughter, Mrs. Langdon, the income of $100,000, for her life, and upon her death, “ the said capital sum to her daughters, Eliza, Louisa, and Cecilia, and to her sons, Walter, Woodbury, and Eugene, and to such of these six children as may survive me.”
p. 494C. (1.) The testator, by his will, bequeathed to his granddaughter, Louisa, on her attaining the age of twenty-four years, $25.,000 ; and on attaining the age of thirty years, the further sum of $>25,000. (2.) By the codicil of January 9, 1839, he gave to the “ said six children of his daughter Dorothea, (Eliza, Louisa, and Cecilia, Walter, Woodbury, and Eugene,) or to such of them as may survive me,” $100,000 of the public debt of the city of" New" York, usually called the water loan, to be paid to each on attaining the age of twenty-one years,” with survivor-ship, &c.D. The testator, by a codicil made March 3, 1841, devised.to Louisa. D. Langdon, a lot of ground on Lafayette Place, in fee, subject, however, to a power of settlement given to his executors.I. The devises and bequests, contained in the will and the 1st, 2d and 5th codicils, are clear, certain and definite. They show, with precision and accuracy, the intent of the testator, at the times those several instruments were made. These devises and bequests must prevail, and the estates and interests arising under them, will be protected and enforced by the decree of thé court in this action, unless they are revoked or annulled by the 6th codicil, subsequently made.II. These previous, devises and bequests are not expressly revoked by the 6th codicil. The testator had no such separate, independent intent; and his intentional omission of such express words is conclusive on that point.III. If the 6th codicil is to prevail over these previous devises and bequests, it must be by force of a different disposition of the same property. Such is the express intent of the testator, set forth in the last clause of the -6th codicil. If no such different disposition be made, the codicil is inoperative to affect the previous devises and bequests.IY. Whether such different disposition be made, depends upon the question first to be determined, viz.: What is the different disposition made by the 6th codicil ?What is the different disposition made by the 6th codicil, is a question of intent. What the intent of the- testator upon that subject was, must be determined by the very words he has employed to express that intent..
p. 495Y. It is impossible to determine with any certainty, what is the different disposition made by the 6th codicil. The whole codicil taken together is ambiguous, indefinite and uncertain, and the various clauses are vague, uncertain, and susceptible of various interpretations, in the following particulars :A. (1.) The 1st clause of the sixth codicil relates to “all such shares, estates, and interests in land, as are in my will or in my codicil thereto given, on my decease, to Louisa, daughter of Mrs. Dorothea Langdon, or to the issue of the said Louisa.” The word “ or,” indicates the idea, that on the testator’s decease, if Louisa were not living, her issue would take. But the will is not so framed.. The will gives nothing to the issue on the testator’s decease. All the devises noted under point A, are to certain children of Mrs. Langdon, “ or to such as shall survive” the testator for life. If any died before him» their issue took nothing. The limitation to. issue was only of the share the parent had “ enjoyed for life.” As therefore the will gives nothing, on the testator’s decease, to the issue of Louisa, it follows that the first clause of the codicil takes nothing away from the issue. (2.) What is given to “ the issue ” by the will, is on the decease of their mother, if she survived the testator ; that is the remainder in fee after her life estate. (3.) But if it be said, that in strict legal phraseology, this remainder was given to the issue, on the testator’s decease, because all the legal estates limited by the will then took effect ; the answer is, that the testator has himself established his meaning to be otherwise. The plaintiff’s remainder in fee, after the life estate of her mother, in the property mentioned under point B, took effect on the testator’s decease, just as much as the remainder in fee limited to the plaintiff’s issue after her decease, in the property mentioned in point A. And yet the testator did not consider that remainder within the first clause of the sixth codicil, and provides for it under the second clause. The same may be said of the remainder in fee limited after the life estates of her brothers and sisters, in case they died without issue. (4.) As there are two classes of devises in the will, viz.: First, Those to be enjoyed by the children of Mrs. Langdon, on the decease of the testator, and Secondly, Those to be enjoyed, on the-
p. 496decease of their mother, or their brothers and sisters,-without issue then surviving,—-all of which were. equally vested on the testator’s decease, but not to be enjoyed at the same time,' or on the same contingencies,-—so these two classes, differing not' in respect-to their vesting, but in respect to their time of enjoyment—are made the subject of different dispositions in the first and second clauses of the codicil. (5.) The testator has therefore very plainly defined the meaning of the words “ given on my decease,” in the first clause, by the language he used in the second- clause—and has shown that in the former he speaks only of such property as would come to the immediate enjoyment and possession of the devisee, on his own decease ; and in the latter of such as would not come to her immediate enjoyment and possession till the death of her mother, or her brothers and sisters, without issue. (6.) In this sense, then, nothing is given by the will to the plaintiff’s issue to be immediately enjoyed on the testator’s decease ; and that part of the first clause of the codicil is a misdescription. That such a misdescription was not improbable, is apparent as well from the use of the word “ issue ” in various parts of the codicil, as from the employment of that terra in the second clause of the codicil, where he speaks of estates given to “ Louisa, or her issue,” on the decease of her brothers and sisters, without issue—when by the will those remainders are limited in fee, and the issue have no interest therein. (7-) Mrs. Kane’s life estate, according to this view, is therefore the only subject of the revocation attempted in the first clause of the codicil. The gift in that clause accords with this view, as it is only her life estate that is .taken away, so none but the “ other children,” her brothers and sisters, are the donees—and not their issue. (8.) A reference to the fifth clause of the codicil confirms the same view. The testator does not there seem to suppose that he has previously taken any thing away from the issue. Mrs. Langdon is there authorized to restore any part of the estate, not éxceeding one-half in value “ by this codicil taken from Louisa.” The issue have not been accidentally overlooked, for he authorizes the restoration to be made to them instead of their mother, if the donee of the power should so determine. (9.) This consideration is of importance, for if any thing is taken away- from the- issue, by the previous
p. 497clauses, of the codicil, it cannot be restored under the power, because the power is limited to property “ taken from Louisa.” And yet every moral intendment is more in favor of restoring what might have been taken from the issue, than of restoring what was taken from the parent. (10.) Against this construction, it may be urged, that the true interpretation of so much of the first clause as refers to the half given to “ the other children,” may be illustrated by so much of it as undertakes to dispose of the other half. That clause concludes thus : “ and after her death I give the same to her surviving children, or if she leaves none, to her surviving brothers and sisters, or their issue.” If this refers to the immediate antecedent, the one-half placed in trust, it would naturally come in as a repetition of the limitations in the will, though it was unnecessary. If it refer to the general antecedent—the whole share—it affords a confirmation of the view, that the previous dispositions referred only to Louisa’s life estate. In either case its introduction is consistent with the views already advanced. (11.) The gift in the first part of the first clause is not distributive. The subject is “ all such shares, &c.,” and the objects are “ the other children.” Both terms are in the aggregate. The mode of taking and holding is “ as an increase of the shares or sums given to them, and their issue, in the same property.” The question is, who are “the other children” intended? Does each of the other children take an estate in all the shares of Louisa, in all the devises under the will ? Some devises are to the females—others to both males and females—and Mrs. Boreel is interested in only one of the devises. How can they hold Mrs. Kane’s share as an increase of their shares in “ the same property,” when they have no shares in the same property ?B. The second clause of the codicil undertakes to dispose of the shares given to “ Louisa, or her issue,” on the decease of her brothers and sisters. 1. These shares are in fact given by the will only on the decease of her brothers and sisters, without issue. 2. There is a misdescription in supposing Louisa’s issue’ have any interest in these remainders. 3. The gift is to her brothers and sisters, and their issue—which is not conformable to the plan of the will; and yet it is given as an increase of their respective shares or interests in the same property. What are
p. 498their respective shares or interests in the same property ? A remainder in fee on the death of any without issue. This contingent remainder to which Louisa might be entitled on the death of any one, is given to all the brothers and sisters, including the very one whose life estate has expired.C. The third and fourth clauses of the codicil are, as to the two legacies, sufficiently clear, and become the subject of judicial construction only in connection with the application of the power contained in the fifth clause. This clause is uncertain and ambiguous as to the water stock.B. The power contained in the fifth clause authorizes Mrs. Langdon, by deed or will, to appoint “ and give to the said Louisa and her issue, or to her or to their use, any part not exceeding in value one half of the real or personal estate by this codicil taken from Louisa and given to others.” 1. The subjects to which this power may be applied must be property by this codicil taken from Louisa, and given to others. ' All the estates and interests, whatever they may be, intended to be taken from Louisa by the' first clause of the codicil, are within the scope of the power: First, because “ all such estates ” are professed to be taken away, one-half passing to the “ other children,” and the other half to the executors in trust; and secondly, because the trust to apply the income of the latter half placed the legal estate in the. trustees. The remainder in fee is also changed—by the will it was limited to the “ surviving issue ”— by this clause of the codicil the limitation is to “ surviving children,” and if she leaves none, “ to her surviving brothers and sisters, or their issue.” 2. Whatever was taken away by the second clause of the codicil, is also subject to> the power. 8. The water stock and legacies mentioned in the third clause came within scope of the power. As to the former, there can be' no doubt. As to the legacies, though revoked, the revocation was merely the simplest way of giving them by the codicil to William B. Astor, who is the residuary legatee under the will. The last clause of the codicil brings the will and the codicil together, and though the residuary bequest is in the will, so are these legacies, and the residuary bequest is made to operate on the subject matter of these legacies, through their revocation by the codicil. It is undoubtedly by, that is by the means, or effect
p. 499of this codicil that W. B. Astor receives the benefit of these legacies. The term employed by the testator conforms to this idea. He has not said “ in,” but all property “ by ” this codicil taken from Louisa and given to others. 4. That this interpretation of the effect of the word “ by ” accords with the testator’s intention is apparent from the fact, that unless so interpreted, no effect at all can be given to the power. Two requisites are demanded in the subject of the power : (1.) It must be taken from Louisa. (2.) It must be given to others. Both these must be done by the codicil. Now it so happens that the two legacies are the only property expressly taken from Louisa, in the codicil,, by direct revocation ; all the other property is only taken away by means of a gift to others. The legacies, therefore, are the only subjects expressly meeting the first requisite. All the other property, if effectually disposed of, meets the second requisite-., being given to others. Unless “ by” be construed “ by means or effect,” the legacies are not the subject of the power, because not given to others—and the other property is not the subject, because not taken away—and the power is futile. 5. The lot given to Cecilia in the fourth clause of the codicil, is also the subject of the power ; the peculiar terms in which that lot is to. be “ had and holden ” by her, were inserted merely with a view to apply to that property, the limitations, conditions, and powers-mentioned in the will; the lot is given to Cecilia; the particular mode of doing so is immaterial.E. The power contained in the fifth clause of the codicil is : 1. A special power designating the person or class of persons to whom the disposition is to be made. (2 Ves. p. 632; 8 Ves. 570; Brown v. Higgs, 10 Ves. 537; Maurice v. Bishop of Durham, 1 R. S. 732, §§ 73, 95, 81, 96.) 2. It is a power in trust, the beneficiaries being persons other than the grantee of the power. 3.. Being a trust power, its execution is imperative, because its execution or- non-execution is not made expressly to depend on the will of the grantee. It imposed a duty on the grantee, the performance of which might be compelled in equity. (1 R. S. 733, § 96.) 4. This discretion as to the part, did not refer to the amount in value, but the particular portions that might be selected. The provision that the part given should not exceed one-half of the whole in value,, was merely
p. 500a restraint on the power—a measure of value. 5. The rights of selecting certain beneficiaries did not prevent its being imperative. 6. The mode of executing it by deed or will does not destroy its imperative character. In case of death, without execution, its execution in equity would be decreed for the benefit equally of all the persons designated ; the only discretion given in the power related to the selection of the particular portion to be given, and the parties to take.F. All the ambiguities and uncertainties of the fifth clause of the 6th codicil, necessarily affect and involve all the previous clauses of the codicil, and render them incapable of any definite interpretation or legal operation.The operation of the “ power ” in that clause, is the most important; if not the only vital feature of the whole scheme, and its definiteness and certainty as to the rights arising therefrom, áre indispensable to the validity of the codicil. 1. Who are the beneficiaries of the power ? 2. Can Mrs. Langdon select in her discretion, either Louisa or her issue as beneficiaries ? 3. Has Mrs. Langdon discretion to select either personal or real estate for restoration, and such parts of either or both as she pleases. 4. Did the testator suppose that he had taken nothing from Louisa’s issue, and if he did so suppose, did he mean to restore to the issue what had been taken from Louisa ? 5. Can the power be executed after Louisa’s death ? What is “ half in value ” of a life estate in different lots of land, with power in her to lease and to sell, with a contingent remainder in her to the fee of other portions of the same property ? The power to estimate such a right in money or to divide it into two parts is simply a naked impossibility.VI. These ambiguities, uncertainties, and inconsistent expressions render it very clear that the testator had no distinct and definite idea as to the legal effect of the terms he was employing, and they would sufficiently invalidate the whole codicil even if there were no previous devises to Louisa and her issue. (Peck v. Halsey, 2 P. Wms. 387; Jubber v. Jubber, 9 Simons 503; Bayeaux v. Bayeaux, 8 Paige 333 ; Thornhill v. Hall, 8 Bligh. N. S. 88, 107.) But, in the present case, the words of the codicil are plainly inadequate to overthrow the previous devises in the will, and
p. 501.1st, 2d, and 5th codicils,which are clear and definite, and indicate a certainty of the testator’s intent. Nor will the court labor to reform or re-construct the 6th codicil, for the purpose of defeating a prior devise which was made with deliberation .and precision, and in favor of a grandchild, having a meritorious consideration. (Haw son v. Fyldes, 2 Cowper, 834; Jesson v. Wright, 2 Bligh. 56; Band v. Lamb, 5 Maddock 412; 26 Wend. 27 .) More especially in such a case should the 6th codicil be declared inoperative, when it bears on its face an evident intent of the testator that Louisa might be restored, through the medium of a power in the hands of her mother, to her rights and interests under the will.VII. If it be possible or desirable to give any effect to the 6th codicil, as a legal disposition of property, it can with propriety be done by the court only in this way, viz. By declaring that the power and its full execution by the donee, in the manner proved, on the 6th day of April, 1848, fully restores and reinstates Louisa and her issue to all the rights and interests devised to them by the previous will and codicils.A. Although, in form, the 6th codicil gives to others Louisa's estates, &c., the power of restoration conferred upon Mrs. Lang-don, constitutes Louisa as the obvious beneficiary of the whole scheme of this different disposition in the codicil,—and while the gift to others will be construed strictly and rigidly, the court will give the most liberal-construction to the fifth clause in favor of Louisa.B. The donee of the power having expressed the intention, and formally undertaken, to restore to the plaintiff all she could control under the power ; the execution of the power is in effect the act of the testator.That act is in harmony with the original intent and the previous devises of the will, and it is in conflict with the implied revocation. The court will, therefore, lean to a construction most favorable to the party designed to be benefited, especially when she stands “ locofiliat ” to the testator, and is the-daughter of the donee of the power.C. The po#er having been executed to its fullest extent, the-beneficiary is reinstated in the rights taken away, to the fullest limit of the power. The donee of the power merely nominating
p. 502the person to take, when the nomination is made, the appointee is in the estate under the will and codicil, the estate passing and being actually transferred by the instrument creating the power—-that is, the codicil. If any election remain to be made, the appointee may make it.D. There is a power contained in the will which is parallel in some of its terms to the one in the codicil, and illustrates the meaning, “ Also I do authorize any such tenant for life, with the assent of one of my executors, to sell and convey in fee simple, to the extent of one half in value of the lands devised to such life-tenant, in order to raise money for the improvement of the residue.” This is undoubtedly the gift of a power of selection, and authorizes the sale of some particular lot, in order to apply the proceeds to the improvement of another lot. If a fractional share or undivided part of the whole estate was intended, it would involve a gross absurdity.E. Much more then does the power contained in the fifth clause of the codicil, authorizing Mrs. Langdon to appoint “ any part” give an unlimited power of selection. That is, she might restore the one-half in the first clause given to the other children—or the other half given to the executors—or the whole, provided only that what she so restored did not exceed in value one half of all the property taken away by the codicil.The same rule applies to the rights, legacies and estates referred to in all the succeeding clauses.F. The power being an essential part of the general^design of the codicil, if for any reason its execution become impossible, the whole codicil fails. The power applies to all the property taken away. It embraces every disposition, and enters as a component into the intention of every part of the codicil. It not only applies to every disposition, but its limit is the value of all the dispositions.There is consequently no possibility, if the power fails in any of its essential purposes, of preserving any part of the codicil without defeating the unity of intention of the entire instrument —for the presumption is, that the testator would not have taken anything away without an accompanying power of restoration.G. The power is a valid authority to restore any part of the estate by the. codicil taken away. The limit on the power con
p. 503tained in the words “ not exceeding one-half in value,” is void. 1. Because the limitation on the power is not precise and definite on the face of the instrument. 2. The value of the whole property must be ascertained, and this is impossible, on account of the rights of survivorship after the death of her mother, brothers and sisters, which in their nature are incapable of definite value, in consequence of the contingency of death without issue. 3. How would the power have stood without the limitation or condition ? It would have authorized the restoration of the whole. The limitation is in the nature of a condition or proviso, and is to be read in this way. “ I authorize D. L. to give and restore any part of said property, real or personal, by this codicil taken, &c.; provided, however, that such part does not exceed in value one half the whole.” 5. The appointee being in the estate, under the execution of the power which expressly restores to her all under the control of the donee, she is in, under the will, subject to the restriction on the power as to value, which being void and incapable of execution, she is restored to the whole. 6. The power is not to appoint so much or such part as shall be equal in value to one-half, but to give “ any part,” subject to the restriction that it shall not exceed in value one-half. It is not necessary the value should be ascertained before any part can be given. The subject of the power is described by quantity, i. e., “ any part,” the restraint on it is described by “ value.” When is that value to be ascertained, and how, or by whom? Can an estate in lands be dependent upon 'or defeated by an uncertain and contingent valuation ? Is the value to be ascertained at the time of the execution of the power, or at the testator’s death? Are the rents and profits to be included ?I. If the restraint on the power takes effect at all, it must be upon the execution of the power ; and if the property conveyed exceeds the limits of the restraint, the appointment is bad for such excess, and, as to the excess, the other devisees are tenants in common, and yet a tenancy in common cannot exist unless the specific share or interest appear, so that partition can be made.VIII. The decree should therefore be, either that the devises contained in the will, and the 1st, 2d, and 5th codicils are unrevoked, and that the sixth codicil is altogether void for nncer
p. 504tainty, or that if the sixth codicil be sufficiently certain in other respects, the limit on the power contained in the 5th clause is void, and the plaintiff, by the execution of that power, in general terms, has been restored to her original rights under the will and the 1st, 2d, and 5th codicils.D. Lord, for executors of J. J. Astor.
I. 1. The sixth codicil is a document not adding to an existing will, but altering it and substituting new dispositions, in place of dispositions by the will.It is not to be construed or have effect as subsequent language jin a will variant from other language in the same will, but as substituting new language in place of language of the will.By its terms it revokes that part of the will which the new dispositions cover ; and if the new dispositions are void, they are the only dispositions on the subject, and the dispositions of that subject by the testator fail.2. This is not the case where dispositions of the will have taken effect, and are to be displaced by other dispositions in another instrument; no disposition takes effect until the death of the testator; and at that time the only disposition is that which the testator has made, by obliterating the language of the will, and substituting the language of the codicil.8. Consequently, if the dispositions of the codicil are void, the subjects attempted to be disposed of go as uncomprehended in the will, to the residuary legatees, devisees or heirs at law, and not to the obliterated legatee.4. The questions on the execution of the power in the codicil stand in a different aspect; the testament as altered by the codicil having taken effect by the death of the testator, in order to change the dispositions it has made, the power to do so must be valid, and the execution of it also valid.If either be invalid, the will with the substituted language of the codicil in such case goes into effect.Therefore if the power in the fifth clause of the sixth codicil be void, or its execution void, the subjects referred to stand upon the will as altered by the codicil.II. The codicil sixth, expressly revokes all the parts of the
p. 505will which the new dispositions cover; and also revokes the two legacies, which are not covered by any disposition.It has revocation as a substantial purpose, independent of new dispositions : for—1. It revokes the legacies without new dispositions.2. It revokes the legacies and devises covered by new dispositions expressly, as well as by dispositions inconsistent with those of the will.3. It revokes the whole of the old dispositions to which the new apply ; and gives the power of restitution limited to one-half only.4. It revokes wholly, presently, and certainly ; it plainly intends the restoration to be but partial, future and contingent.5. The actual intent of revocation does embrace gifts to Louisa’s issue, showing that the cause of revocation was of the most independent and enduring character, viz.: a displeasing marriage, the issue of which could carry the property over, in the event of an early death of the issue, to a stranger.III. The express revocation, at the close of the codicil, is coextensive with the actual extent of the new dispositions, whether the latter be valid or invalid.A testator always supposes all his dispositions and actual ' intentions will go into effect: we therefore look to them as indicating what property they embrace in fact, and hence to ascertain the revocation ; and the void and illegal parts of a will are to be looked at, to ascertain the extent of property which they embrace, and the construction of other parts of the will. (20 Wend. R. 458. Vankleeck v. Dutch Church.)Whatever property is attempted in fact to be covered by the new dispositions of the codicil, the disposition of that by the will is revoked, whether the new dispositions are valid or invalid.IV. By express terms of th & first codicil, if any clause, power, limitation, &e., &c., of the will, or of any codicil thereto, past or future, is for any reason invalid, such invalidity shall not defeat any other part of the will or codicil.1. The revoking clauses of the sixth codicil must therefore stand, whatever be thought of the disposing clauses or of the power. • ■
p. 5062. And in this codicil this was the plain intent of the testar tor ; he did not revoke for the sake of the new dispositions ; but the new dispositions were in consequence of the revocation.The revocation was present; extending to the whole of the gift, extending to issue, extending beyond the new disposition..3. The power of restoring being limited to one half, shows plainly the whole to be revoked, by a plain and substantive intent.4. If the fifth clause containing the power of restoration be invalid, then the rest of the codicil stands valid ; if the whole codicil is invalid, the disposition of the part of the property embraced in it is not restored to the disposition by the will, but goes as a void devise or legacy.What- then was the scope or extent of property covered by the actual intent of the testator in the sixth codicil ?V. The first clause of the first codicil had reference to the entire corpus of the property it refers to, embracing the life estate to Louisa, and the interest to her issue, given by the will on the decease of the testator. It is of all shares, estates, or interests given to her or to her issue.1. The lot on W. of Lafayette Place, being given to Louisa in fee and not for life, is excepted expressly from the first clause. This supposes, that without it the whole fee was embraced in this first clause.2. By grammatical construction as well as by the plain meaning, the shares,- estates, and interests given to Louisa, and those given to her issue, are expressly embraced. The conjunction “ or” is here used in a comprehensive sense. The gift embraces not only shares, but estates, (which would include life estates and remainders vested and contingent) and interests, (which would include possibilities where the person or class of persons is indicated.)3. The gift of one half of these shares, estates, and interestsNote.—The - republication in 1845, has no bearing on these questions. The . ¿publication not being shown to have had any after acquired property to carry, was only for a more easy proof of the paper. Besides, the will and codicils were all re-published successively and as separate papers. D. L.J
p. 507to trustees for the life of Louisa, and on her death to her issue, calls for a larger subject than her life estate, and necessarily embraces remainders.4. The language of the fifth clause (the power to appoint to Louisa and her issue,) calls, by its obvious sense, for a larger subject than an estate for her life.5. Also, the limitation of the power to one half in value is naturally applicable to the value of the corpus as an entirety, and not of the life estate.6. If the disposition is applicable to the corpus, then the previous provisions (of the will and prior codicils) in relation to such corpus are revoked, and if the sixth codicil be void, in other respects than the revocation, Louisa has now no title to any thing.VI. But the dispositions of the first and second clauses, are not void for any uncertainty.1. The courts do not hold a testamentary provision void for uncertainty, until, after all fair attempts at understanding it, it is found to be either insensible or entirely ambiguous ; and they give to all its parts a reasonable and consistent meaning.2. The gift, in general terms, under the first clause, is to all tlxe other children ; the further provision, declaring them to be held as an increase of the shares to them and their issue, shows the gift-to be distributive ; that is, in each tenancy in common of Louisa and her issue in remainder with the other children, her share was given to the other children in remainder and their issue. Here is a subject for each new devisee to take: Mrs. Boreel was a tenant in common of the Broadway lots.Other lands were given in common to Louisa and her issue, with the two other sisters ; others with the brothers.The gift was general to the other children, of the share of Louisa in common with them.The gift by this clause to the other children was of the whole fee, although issue is not mentioned ; the tenure is referred to, which is of the whole fee, by way of life estate and remainder. In a will technical limitations are not necessary to carry a fee. A limitation to A with such estates as are held by B and his issue, would carry the fee in such mode as A and his issue took it. (See 3 Burr. 1570, Evans v. Astley.)
p. 5083. That the fee was intended to be given to the children indicated in the first clause, and their issue, is manifest from the language in the second clause indicating the devisees and their issue. The two clauses are with the same purpose.4. The dispositions of the first clause are plain and unambiguous.‘ The Lafayette Place and Bowery lands are given to the children of Mrs. L., surviving the testator ; in which, a life estate is given to Louisa, a remainder to her issue.These were shares, estates and interests.They were given to Louisa or to her issue.Here was a subject within the very terms of the codicil, and no uncertainty.These are given to the other children of Mrs. Langdon as an increase of their shares in the same property.There is no uncertainty who the other children were, who had shares in the same lands.As to these children, the estates given by the codicil were to go as an increase to them and their issue in the same property, that is, to fall under the same'limitations of estate as their other shares, and to go to those who had shares in the same property.5. Even if Mrs. Boreel had had no share in common, this gift would not have been void for uncertainty.She was one of the other children, and so entitled to take something. If there had been no share in common to come within the letter of the clause, she would still take, that the devise should not fail.The limitation of her estate in the new gift, was plainly intended to be similar to the limitations of the other shares, so far as they were applicable, and they were in all cases the same.Her devise is not void, even if the limitation of the estate were in strictness inapplicable; it being perfectly plain that the limitations in the new gift to all the donees, were to be alike, and that she was therefore to take for life, and her issue in remainder as the others were, and as she took in the devise to her.The other children were substituted for Louisa, and the estates are limited to them and their issue as hers has been.
p. 509Plainly it is the corpus which was here given.6. The Broadway lots stand on the same grounds, excepting that Mrs. Boreel had shares therein, which makes the limitation of estate to her entirely clear, and the terms of the codicil literally applicable.Mr. Rumpff’s devise is revoked.7. The three lots on W. side Lafayette Place, are expressly within the first codicil and are gifts of the corpus.8. The Grand street lots are subject to the same remarks as apply to the other gifts in the first clause of the sixth codicil.9. The second clause of the sixth codicil, disposes of shares, estates, rights, interests, stock, or sums of money, given “ after the decease of Mrs. Langdon j” not merely on her decease, or on the decease simply, but on her decease, including “ after.”10. The gifts of stock and money, in the first clause of the will, are unquestionably within the second clause of this codicil.11. The remainder in John’s share, is embraced in this clause : it is a gift on the death of Mrs. Langdon.The remainder to the children, or issue of children, here, is in fee.12. So, too, the gift of the Trust Company’s certificates. It is a gift to Louisa, on Mrs. Langdon’s death, or her issue. It is an augmentation to the others, and a new gift to Mrs. Boreel.VII. 1. The gifts of the stock in the third clause, of the house in the fourth clause, and the revocation of the legacies entirely, as context clearly evidence a determination to revoke gifts of capital.2. Unless the corpus be given in the first clause there is no interest in land given to-Louisa’s issue to which the language can be applied.3. Supposing the corpus given, all the substantial phrases have effect; unless it is given, the phrase “ or to her issue,” have no subject.VIII. It is no valid objection, that the original gifts being to survivors, Louisa might be the last survivor, and so the devises in the codicil could not go over.1. If there be an intent to dispose of these interests by the codicil, the will as to them is revoked.2. But the fact, that in one very improbable contingency the
p. 510devise might fail of effect, does not render it void ah initio. That would render void every gift over on the condition of surviving the testator, or a life tenant.IX. It is no valid objection, that the power to appoint, only applies to what is taken from Louisa ;For, the corpus taken from Louisa, was to be the subject of the appointment; and it was the same corpus newly disposed of.What was taken, &o., was merely a description of the corpus to be appointed.This appears by the context. It was to be appointed to her and her issue, which contemplated, most naturally, the corpus, and not merely her estate.X. There is no valid objection to the gift by the third clause of the share of water stock to Mrs. Langdon’s other children, or in case of their decease, to their issue.The gift to issue is plainly distributive.The gift on her death, is, both by grammar and sense, Mrs. Langdon’s death.The phrase, “ in case of their decease,” is not decease of her issue who are to take, but of the children on whose decease the issue are substituted.XI. But it is said the power is void, and so the codicil is all void.1. If the power is void, then the revocation and the rest of the codicil are nevertheless valid.2. But the power is valid.It is a special power, as the class of persons is designated in whose power it is to be exercised. (S. 78 ; I. R. S.. 182.)It is in trust, for the benefits of the execution are to a class excluding the donee. (S. 95.)3. But it is discretionary, under S. 96. The statute does not require that its own language, in 8. 96, should be used ; it is enough, if by the expressions in which the power is given, it must depend on the mere discretion of the donee, not merely applicable to the selection among objects.For the beneficiaries can only take “ such part as the donee shall appoint.” It, therefore, by its terms, may or may not be executed.
p. 511Its execution or non-execution expressly depends on the will of the grantee. ,It is not within the clause of selection merely, but is expressly discretionary.4. Supposing the power imperative and in trust, it could only vest one-half in Louisa and her issue. (96, 98,100.)And this is to be done by the exercise of the power only, and not by the power itself.5. The power is not objectionable as uncertain. Unexecuted, it applies to a moiety of the corpus in each instance.Executed, if there be uncertainty in the execution that would be void, not the power.6. It is no objection to a power, that it leaves to the donee a wide uncertainty within which to exercise the power. The execution renders certain. Times, parcels, estates, beneficiaries, may be in a great range of uncertainty, and the power be valid. All powers are thus uncertain, and to make the gift under the power certain, is the office of the donee.7. The limitation of value, is no objection to the power. It can be exercised in giving a half of each subject, or a third, or other aliquot part. To make a power void as incapable of execution (except in cases of perpetuity), there must be no lawful mode of execution.8. The power does not range without the limitation, so as to sweep all by successive executions. The execution is void if excessive, and whenever exercised, the claimant must show the execution to be within the limit.XII. The power does not extend to the two legacies.1. They are revoked entirely. This alters the will so as to erase the legacies entirely ; and, consequently, there is nothing for the power to operate on.This revocation has reference probably to the age of Louisa ; she was to take one at 24, one at 80, by a will made in 1836. The codicil is 1841, seven years after. She was then married. They were gifts-which the testator would, if disposed to restore, make himself, in his own life.2. The power of restitution requires three circumstances: 1. A taking from Louisa; 2. A giving to others ; and 3. That by the codicil.
p. 512The codicil does not give these legacies to any others, it entirely abrogates them.3. If there were no clause of residue, so that the revoked legacies would go to the next of kin, they would not take by the codicil, but by intestacy; so here, the residuary legatees take the residuary fund, by the will and not by the codicil.4. The language is very express, and intentionally descriptive : not only are the legacies entirely revoked, but the codicil itself gives to others, all which it intends Mrs. Langdon, by a power in the codicil, may give to Louisa and her issue.5. The language of the last clause, so far &c., shows the extent of the power; the disposition to others, which was coextensive with the revocation, her.e is co-extensive with the power ; the disposition here meant, is a disposition “ by the present codicil.” So the power only extends to gifts by “ the present codicil ” to others.XIII. The power does not extend to the property placed in trust under the first clause of the codicil.That Is not taken from Louisa and given to others, but secured to Louisa and her issue, against marital right and her own disposition.XIY. The power as executed, vests a fee in the lands, or absolute interest in the personalty, in Louisa and her issue, who were born at the date of the deed executing the power, if she had any issue then.If she had none, then it vested a life estate in her with a vested remainder in her issue, as they are born, according to the limitations of the original wilL But whatever be the' construction of the deed of execution, this does not affect -the power: if the execution be vague or imperfect, it may be executed anew.C. O’Conor, for Mrs. Langdon, and others.
I. That a testamentary disposition is void for uncertainty is the last conclusion that a court of justice will adopt. Ut res magis valeat quam per eat, is a rule of construction applied by courts to all human actions not in themselves repugnant to law, policy, or morals. This rule is specially applicable to written
p. 513instruments, containing contracts executed or executory. The courts apply this rule most liberally to wills. The testator is presumed to have been without counsel, to have been himself uninstructed in the law, and languishing in the shadow of approaching death. His honest intentions are therefore regarded with the highest favor, and courts are always astute in giving effect to them. Words will be supplied to develops an intent not fully expressed in language, though discernible to the mental vision of a benign and favorable interpreter. Words which obstruct this intent and tend to defeat it, will be disregarded.These principles lead to such a course of judicial exposition, in testamentary cases, that instances of voidness or inefficacy, in such cases, on the ground of uncertainty, are extremely rare.There cannot be found, in the history of judicial practice, a single exception to this benign and saving administration of the law, except the inclination which has been manifested to aid the heir at law against an inexact devise.That inclination of the judicial mind sprang from a principle now disfavored, has been gradually losing ground in England, and in our own state is abolished by statute.II. There is no obscurity or ambiguity in the sixth codicil.1. The first clause applies to lands in which Mrs. Kane took an immediate interest, in possession as tenant, in common with any of her brothers and sisters, and as to one-half thereof, substituted such brothers and sisters so taking in common with her, and as to the other half (to use the ancient language of the law), converted her legal estate into an equitable estate. It placed the remainders to issue, limited upon these newly created life estates, in the same relation thereto that the remainders to issue, originally created, bore to the life estates originally given.2. The second clause applies to the future estates, vested or contingent, given to Mrs. Kane or her issue, and instead of taking from her one-half, took from her the whole of these estates, and gave them as an increase to the shares of her co-tenants in common.3. The power of restoration contained in the fifth clause, was undoubtedly intended to be discretionary. It is probably imperative by force of the statute. There is no conceivable difficulty in executing this trust .power, whether it be regarded as
p. 514discretionary or imperative. The only thing looking like an inadvertency is its omission of the words, “ or her issue ” after Louisa’s name, where it last occurs. This defect should certainly be supplied by judicial interpretation.4. The word “ others,” in the fifth clause, does not strictly include either Mrs. Langdon, the donee, or Mrs. Kane, the object of the power, and, consequently, the interest given to Mrs. Langdon in the water stock, by clause third, is not included in this power of restoration. It would be idle, and in fact a legal error, to give Mrs. Langdon “ expressly ” a- power to restore to Mrs. Kane that which had been absolutely given to Mrs. Langdon for her own use.The power of restoration is expressly limited to that which, by the codicil, is taken from her and given to others, consequently the alteration made in the will itself, in the fourth clause of this codicil, remains unaffected by the power. Mrs. de Nottbeck is entitled to the lot on the westerly side of Lafayette Place.III. The practice of making a new decree at the general term, on appeal from the special term, founded upon a bill of exceptions, cannot be sustained under the code. The court of appeal possesses no other power than courts of appeal possessed at common law, when reversing upon a bill of exceptions.E. Sandford, for the- infant children of Mrs. Kane.
I. The will of the late Mr. Astor, and the several codicils thereto, constituted an entire testamentary disposition of his property, taking effect, as a whole, at his death. The disposition thus made by the testator is to be ascertained by examining the devises and bequests contained in his will, and comparing them with the changes or alterations made or attempted to be made by the several codicils. The same rule of construction applies to a will and its codicils, where they exist, which is applicable to a subsequent devise and bequest contained in the same will, which is consistent with a previous devise and bequest therein. The rule is,-that the court is bound to give effect to every word of the will, without change or rejection, provided an effect can be given to, it not inconsistent with the general intent of the whole
p. 515will taken together. (1 Ves. Sr. 186, Willet v. Sandford; 3 Ves. 105, Gray v. Minnethorpe; 6 Ves. 102, Constantine v. Constantine; 2 Met. 195 , 202, Homer v. Shelton; 2 Yeates, 525 , Robinson v. Martin.) If the last disposition is absolutely irreconcilable with the first, it will prevail, because it is taken to be evidence of the latest intention of the testator. ( 2 Paige 122 , Covenhoven v. Shuler; 3 Whart. 162 , 68, Lewis’s estate; 5 Ves. 243, 247, Sims v. Doughty.) This rule is adopted only from necessity, to prevent the avoiding of both provisions for uncertainty. It is only applied where the general intention of the testator cannot be discovered, and where the two provisions are so totally inconsistent that it is impossible for them to coincide with each other, or with the general intention of the testator. ( 2 Paige 122 , 130, Covenhoven v. Shuler; 22 Maine 413 , 27, Pickering v. Langdon; 2 Met. 202 , Homer v. Shelton.) If the testator uses in one part of his will, words having a clear meaning in law, and in another part, words inconsistent with the former, the first words will not be thereby cancelled and overthrown, if they be consistent with the general intent of the testator. (2 Bligh. 56, Jesson v. Wright; 2 Williams on Ex’rs, 789, 790; 4 B. & C. 620, Doe v. Harvey; 22 Maine 257 , 67, Morton v. Barrett.) If there are words which have no intelligible meaning, or be absurd or repugnant to the clear intent of the will, they may be rejected. ( 12 Mass. 537 , 42, Bartlett v. King; 22 Maine, 413, 427, Pickering v. Langdon.) The office of a codicil is to vary or to add to, and not wholly to supplant a previous will, and where it contains no express clause of revocation, the court will, if possible, adopt such construction as will give effect to both ; sacrificing the will only as it shall appear to be clearly irreconcilable with the codicil. It is the established rule not to disturb the disposition of the will further than is absolutely necessary for the purpose of giving effect to the codicil. (1 Jarman on Wills, 159, 160; 8 Bing. 475, Doe, dem. Hearle v. Hicks, House of Lords; 1 You. & J. 470, Hicks v. Doe, S. C.; 5 J. C. R. 343, Westcott v. Cady; 2 Myl. & Craig 606, Cookson v. Hancock; 8 Cowen 56, Brant v. Wilson; 5 Ves. 404, Lord Comington v. Payne; 1 You. & Coll., C. C. 441, 456, Shepperdson v. Tower; 1 id. 680, 686 , Newman v. Lade.) Another rule of construction is, that where the will contains a
p. 516clear and unambiguous disposition of property, such a gift will not be revoked by doubtful expressions in a codicil. To revoke a clear devise, the intention to revoke must be as clear as the devise. (1 Jarman on Wills 165; 3 Simons 24, Goblet v. Beachey; 2 Russ & My. 624, S. C.; 8 Bing. 475, Doe, dem. Hearle v. Hicks.) If by a codicil, the testator revokes a devise or bequest in his will, or in a previous codicil, upon the assumption of the fact that he has thereby made a valid disposition of the same property in a different manner, or upon the assumption of any other fact which turns out to be erroneous or false, the revocation does not take effect; it being considered as conditional and dependent upon a contingency which has failed. (3 Ves. 321, Campbell v. French; 2 Per. & Dar. 378, Doe v. Evans; 12 Leigh. 541 , Burksdale v. Burksdale.) Another rule is, that if a meaning can be collected, but it is left wholly doubtful in what manner that is to take effect, the court will declare that portion to be wholly void for uncertainty, although they thereby, to a certain degree, run counter to the will. (6 Ves. 100, 102, Constantine v. Constantine; 1 J. C. R. 231, 235, Mann v. Executors of Mann; 4 Dessaus, 215, Rothmachlers, admrs. v. Myers)II. The devises and bequests contained in the will, and in the first, second, and fifth codicils, are clear, certain, anddefinite. They are not expressly revoked by the sixth codicil. If the sixth codicil shall prevail over either of these dispositions of property, it will be only by force of a different disposition of the same property made thereby.III. As to several of the clauses contained in the sixth codicil, the subjects and persons are so confused, and the language is so indefinite and uncertain, that no clear or satisfactory meaning can be collected from them. If the court can safely hazard any conjecture as to the meaning and intention of the testator, in the clauses referred to, it is left doubtful and uncertain in what manner such meaning can take effect. The proper course in such cases is, to declare the codicil to be wholly void for uncertainty, and to give effect to the clear devises contained in the will. ( 8 Paige 333 , Bayeaux v. Bayeaux; 8 Bligh. 88, 107, Thornhill v. Hall; 9 Cl. & Fin. 606, 24, 678, 80, and 662.)IV. The will and the codicils, for the purposes of construe
p. 517tion, being taken together, and regarded in the law as forming one entire disposition of property, and the testator, in the sixth codicil, having declared that it was not intended to revoke any of the dispositions made in his will, and in the preceding codicils, except so far as he had hereby made a different disposition of the same property,—having effectually excluded all grounds for any inference that an unsuccessful attempt to make a different disposition, should cause the previous devises and bequests to lapse, and fall in under the residuary clause of his will. The rule that a testator is supposed to calculate upon his dispositions taking effect, and that he does not therefore provide for the happening of events which may defeat them, has relation to the death of devisees and legatees. The first codicil to the will in this case shows that the testator studiously guarded against the failure of any part of his will by judicial construction, and the caution was repeated in the expression of his intent to revoke, contained in the sixth codicil,—that his dispositions made previously of this property should not be defeated unless he had made new dispositions thereof.V. The revoking clause of the sixth codicil cannot stand, unless the disposing clauses, and the power therein contained, shall be adjudged to be valid. The words of the testator contained in it are so clearly expressive of his intent to revoke only by reason of the new dispositions, and so far as they took effect, that argument cannot make it more apparent.YI. The first clause of the sixth codicil does not refer to nor embrace any interest or estate, given by the will, or by either of the preceding codicils, to the issue of Mrs. Kane. Such a construction is wholly inconsistent with the general intent of the testator to give estates for life only, to his children and his> grand-children, to whom he made specific devises and bequests, and to constitute their issue the ultimate absolute owners of' their respective portions, taking as purchasers from the testator,, and not by descent. No motive can be found for any design to> place the issue of Mrs. Kane on a different footing, from the-issue of her brothers and sisters. The language used, and the-dispositions attempted to be made, of the interests with which this clause professes to deal, do not prove the existence of any such intention.
p. 5181. 'The testator gives one-half to the other brothers and sisters-of Mrs. Kane. Neither of these had any thing more than a life 'estate in the property otherwise given to them. He did not contemplate annexing an estate in fee, in the lands devised to Mrs. Kane, because he says it is “ to be taken and held as an increase of the shares or sums given to them and their issue, in the same property.”2. The testator had not, in his will, nor in any previous codicil, given any thing upon his decease, to the issue of Mrs. Kane, so that these terms had nothing upon which to operate.3. The interests of the issue of Mrs. Kane were remainders, which are professedly the object of the second clause of this codicil.4. The exception of the lot on the west side of Lafayette Place, which was given to Mrs. Kane in fee by the fifth codicil, from the operation of the first clause of the sixth codicil, evinces the intent of the testator, not to deal with any other than the life-estates of Mrs. Kane.5. If the last clause of the first section be a devise of the fee to the executors in trust for Louisa, it can only be so regarded, by reason of the devise over of “ the same to her surviving children ” “ after her death;” if this .construction be inconsistent with the preceding argument, the claim that the first clause refers to the fee, is equally inconsistent with the express language of the testator, that he intends to deal only with what was given on his decease, to Louisa, and to the issue of said Louisa (to whom he had not given any thing upon his decease), and with his declaration that the other children of his daughter Dorothea should take and hold the one-half thereof, as an increase of the shares and sums so given to them and their issue in the same property.6. The fifth clause of this codicil declares the power to be operative upon the property thereby taken from Louisa. This shows conclusively that the testator did not contemplate taking anything from the issue of Mrs. Kane. The court cannot add the words “ or from her issue ” to the fifth clause, and thereby ■deprive the children of Mrs. Kane of their estates.VII. The dispositions of the first and second clauses of the ■sixth codicil are too uncertain in respect to the subjects with
p. 519•which the testator intended to deal, and it is left too doubtful in what manner they can take effect, for the court to disturb the previous dispositions of the same property. The court are not called upon to give some effect to the codicil. If they cannot clearly see that this codicil is capable of one single interpretation and execution, it cannot overthrow the previous devises. The confusion of subjects and terms shows that the testator had no distinct conception of the effect of the clauses. If it be argued that he must have intended to deal with the corpus of the estate, because portions of the language would be otherwise absurd, other provisions of the clause are rendered equally absurd by such construction.VIII. No construction should be given either to the codicil or the power, or to the execution of the power, which would prejudice any children hereafter to be born of Mrs. Kane.IX. The court should adjudge that the estates and interests given by the will and the preceding codicils, to the children of Mrs. Kane, are not affected by the sixth codicil.Mr. R. Dodge, for Mr. and Mrs. de Nottbeck.
Mr. C. H. Hunt, for De Lancey Kane.
By the Court.
The first position taken in the complaint is, that the devises and bequests made to Mrs. Kane, by her grandfather, in the will and five first codicils, are not in whole or in part revoked, altered or affected, by the sixth codicil; which, although it attempted to revoke those devises and bequests, is uncertain and insufficient for that purpose, and is otherwise wholly inoperative and void.
The sixth codicil unquestionably assumes to alter and revoke all the prior gifts made to Mrs. Kane and her issue, with, perhaps, some unimportant exceptions ; but it is plain the testator intended to revoke those gifts, only so far as he disposed of the subjects of them in a different manner in his sixth codicil. The two pecuniary legacies and the water stock may be" an exception, but as to the bulk of the property, he has declared that intention emphatically in the last clause of the codicil. If, therefore, the new and different dispositions which he has made,
p. 520are so indefinite, vague or uncertain, that the court cannot give them effect, the argument is undoubtedly sound, that the codicil being void for this cause, the gifts in the will itself are not revoked. Upon the same principle, if the “ different disposition ” made by the codicil is impracticable for any cause, the testator's intention to dispose of the property by that instruinent fails to that extent; no different disposition of it is made, and therefore, according to his express declaration in the codicil, the will is not revoked.
Such being the law, and the charge of uncertainty being brought against three of the five clauses of the codicil which treat of those gifts, it becomes necessary to examine and classify the provisions previously made for Mrs. Kane and her children. We will then be prepared to apply the codicil to the preceding-devises and bequests, and can the better determine how far the imputation of uncertainty and ambiguity is well founded, and if the codicil be valid, can give to it a proper construction.
In disposing of what he intended to give to the family of his daughter, Mrs. Langdon, the testator’s general plan was to give an equal amount of property to each of her children, limiting the enjoyment of it to the life of each, and vesting the property in remainder in his or her issue. In the event of the death of either of the grand-children, without leaving issue, the testator, by cross limitations, transferred his or her share to the other grand-children. This general scheme was applied to gifts of personalty, as well as to the real estate devised ; and the exceptions, in respect of both, seem rather to make the general design more marked and distinct.
Having this in view, let us see what were the provisions which he had made for Mrs. Kane and her issue, prior to the execution of the sixth codicil. And, in so doing, we will notice, first, those in which she, or her issue, or both, took vested estates, or interests, at the death of the testator ; and secondly, those in which a contingent estate or interest, executory devise or other possibility, was conferred on her or them.
First. The devises and bequests in which Mrs. Kane and her issue, or either of them, took vested estates or interests.
(1.) A devise in fee to Mrs. Kane, of a lot on the west side of Lafayette Place. This is in the fifth codicil, and is the only
p. 521devise made to her in fee in possession. It is made subject to a discretionary power in the executors to execute a settlement, which it is unnecessary for us to consider.
(2.) Devises of life estates to Mrs. Kane, with remainder to her surviving issue in fee, with an executory devise over, on her dying without issue, to her surviving brothers and sisters, or to such of them as are named in the devises respectively. The gifts of this class are as follows : One sixth of the lots on Lafayette Place and the Bowery, and of the lands lying west of Greenwich street between Morton and Charlton streets, described in the second paragraph of the will. One fourth of the four houses and lots on Broadway, described in the third paragraph. One-sixth of three lots on the west side of Lafayette Place, mentioned in the second clause of the first codicil. And one-sixth of nine lots on Grand street, mentioned in the latter part of the second codicil. In the two former gifts, the executory devise, on her death, is to the brothers and sisters then surviving ; in the two last, the survivorship is not so explicitly defined.
(3.) Two devises to Mrs. Kane, in remainder, viz.: One seventh of the house and lot on Lafayette Place, given to Mrs. Langdon, for life, in the first clause of the will, to take effect on her death ; and one-seventh of one-half of the lots on Fourteenth and Fifteenth streets, described in the first clause of the second codicil, to take effect upon the death of John Astor and Mrs. Langdon. In both of these devises, Mrs. Kane took a vested remaindel* in fee, which was liable to be divested on her death before the termination of the precedent life estates in the same property. (Williamson v. Field, 2 Sand. Ch. R. 533.)
(4.) An absolute legacy to Mrs. Kane, being one-sixth of the one hundred thousand dollars of water stock mentioned in the last clause save one of the second codicil, defeasible, however, as to the capital, upon her death, under twenty-one, without issue. (1 Jarm. on Wills, 775; Bland v. Williams, 3 M. and K. 411.)
(5.) One-sixth of one hundred thousand dollars of Trust Company certificates, given to Mrs. Kane on the death of her mother, defeasible as to the capital, if she should die under twenty-one without issue.
p. 522(6.) One-seventh of the plate, bank stocks, New York City stock, and Trust Company certificates, given to her mother for life, in the first clause of the will; and .the seventh of the one half of the furniture of John Astor’s house, mentioned in the second codicil; subject to be divested, in respect of the former, on her death before the decease of her mother, and in respect of the latter, on her death during the life of either her mother or John Astor ; in which events respectively, her issue will take in substitution in her stead.
It is with some hesitation, that we hold these legacies ta be vested in Mrs. Kane. We consider the gift in the will to be the same, in effect, as if the testator had said, “ I give the income of these stocks, etc., to Mrs. Langdon for life, and the capital to her children, but if either of the latter die in her lifetime, leaving issue, I give the share of such child to such issue, if without issue then I give it to Ms or her brothers and sisters, and their issue.” The leaning of the courts is strongly in favor of holding legacies to be vested, in analogy to the rules governing devises, where it can be done without trenching upon established principles and adjudged cases; and the following authorities seem to sanction the construction we have adopted. (See 1 Jarm. on Wills, 763, 4, 772 to 777 and notes; 1 Roper on Leg. 584, 585; Eyre v. Marsden, 2 Keen 564; Hervey v. McLaughlin, 1 Price 264; Salisbury v. Petty, 3 Hare 86; Shailer v. Groves, 6 Hare 162, S. C. 11 Lond. Jur. R. 485, and before the Lord Chancellor, 16 Law Journ., ch. 367; Berkeley v. Swinburne, 16 Simons 275, S. C. 12 Lond. Jur. R. 571, and before the Chancellor, 17 Law Journ., ch. 416; and Kimberly v. Tew, 4 Dr. and War. 139, S. C. 2 Conn, and Law. 368.)
Second. Devises and bequests to Mrs. Kane and her issue, or to either her or them, which were' contingent at the death of the testator, and would vest on the death of her mother, brothers or sisters, or on some other uncertain event.
1. An executory devise to Mrs. Kane, in the respective shares of her brothers and sisters, in the real estate mentioned above under the second and third subdivisions of the vested estates, to take effect in the event of their respectively dying before her without issue them surviving.
A like executory devise in one seventh of one half of the
p. 523lands devised to Charles A. Bristed, in the fifth paragraph of the will.
2. Contingent legacies or limitations to Mrs. Kane in personal property. These are, first, in the shares of her respective brothers and sisters, in the plate, bank stocks, city stock and Trust Company certificates, given to her mother for life in the first clause of the will; and in the one half of the furniture of John Astor’s house, mentioned in the second codicil; contingent on their dying without issue before the death of those having precedent life interests therein, and also contingent on her surviving those life interests.
Secondly. The two legacies of twenty-five thousand dollars each, given to Mrs. Kane in the third clause of the will, contingent, the one upon her attaining the age of twenty-four, and the,other upon her attaining the age of thirty years.
Thirdly. Her chance of survivorship of her mother and some one of her brothers and sisters who may die under twenty-one, and.without issue, so as to participate in their shares of the Trust Company certificates, given to Mrs. Langdon for life in the second codicil, and of the one hundred thousand dollars of water stock given to the six children of Mrs. L. in the same codicil.
And fourthly, her interest in one fourteenth part of one hundred and fifteen thousand dollars, the use of which is given to C. A. Bristed for life, by the will, contingent on his death in her life-time, without surviving issue; and further contingent inerests in the same sum, on that event, and also the prior death of her brothers and sisters, or any of them, without issue.
3. Contingent remainders and executory devises to the issue of Mrs. Kane. Thus, in the devise of the house and lot on Lafayette Place to Mrs. Langdon, there is an executory devise -in the respective shares of Mrs. Kane’s brothers and sisters, in the event of their dying, after her death, without issue; and the like interest in the devise of the Fourteenth and Fifteenth street lots. Also a contingent remainder in Mrs. Kane’s share of the same lots, which will vest, in the event of Mrs. Kane dying-before her mother or before John Astor, in such of her issue as survive both of those persons. An executory devise in the
p. 524lands devised to Mr. Bristed, in the event of his dying without issue, after the death of Mrs. Kane. Lastly, in the devises of the three lots on Lafayette Place, mentioned in the second clause of the second codicil, and the nine lots on Grand street described in the latter part of the second codicil, like executory devises in the respective shares of Mrs. Kane’s brothers and two sisters, named in those devises, in the event of their dying without issue after the death of Mrs. Kane, provided the survivorship expressed in those two devises has reference to the death of the testator. The devise in each instance, is to the six children of Mrs. Langdon, or such of them as survive the testator. The devise over, in the case of the Lafayette Place lots, is to “ his or her other brothers and sisters, in the same item named, surviving, in fee simple.” In the devise of the Grand street lots, it is
“ to the survivors of the said six, and to their heirs and assigns for ever.” The only period of time applied in express terms to the entire six as a class, in both of these devises, is the death of the testator. The fact that in the devises over contained in the second and third paragraphs of the will heretofore discussed, the testator uses the explicit language, “ her
then surviving sisters,” etc., is quite as forcible to show that a different rule was intended in these instances, as it is to establish a general intention governing all these ulterior limitations.
We are decidedly of the opinion that the issue of Mrs. Kane take executory devises, in the contingency stated, in the real estate given to Mrs. Langdon’s other children in the first and second codicils, and will so decide, if we find it to be necessary, in entering our judgment.
4. Contingent legacies or limitations to Mrs. Kane’s issue, in personal property. ' These are, first, in the plate, stocks and certificates, described in the first clause of the will, contingent on their mother dying before Mrs. Langdon; and next, upon that event,.in the shares of Mrs. L.’s other children, if'they die before her without issue.
Secondly, the like contingent interests in the John Astor furniture, the event of his death being added.
Thirdly. A contingent interest in the legacy of ene hundred and fifteen thousand dollars, given to Mr. Bristed for life de
p. 525pendent on Ms death without issue, and the prior death of Mrs. Kane ; and also, in those events, in the shares of such of her brothers and sisters as die without issue during the life of Bristed.
We will now consider the sixth codicil, in reference to these various devises and bequests.
There is no room for doubt, in the language of the third and fourth clauses of the codicil. They dispose of the water stock and the lot on Lafayette Place, which had been given to Mrs. Kane, the one absolutely, and the other in fee, and the third clause expressly revokes the gift of the two pecuniary legacies.
The first clause deals with “ all such shares, estates and interests in land,” (except this lot in fee on Lafayette Place,) as are in the will or any codicil thereto, given on the decease of the testator to Mrs. Kane or to her issue.
It was argued, on this language, that there were no such estates or interests, as those thus described, because Mrs. Kane’s issue took nothing on the decease of the testator; and that this is more clearly shown by his applying the second clause to interests which vested in Mrs. Kane on his decease, although not to be enjoyed till the death of her mother. We have already answered the first suggestion, by holding that the issue did take valuable vested remainders on the death of the testator ; and we think that in the first clause of the sixth codicil, he plainly intended to include all the estates and interests in realty, which, on his decease, would vest in interest in Mrs. Kane, and all which would then vest in interest in her children. All such estates and interests were literally and truly given to them on his decease. They were then given, if they were given at all.
This is made more plain by the description of the estates and rights which he sought,to affect in the second clause. Those are such as Mrs. Kane and her issue would have been entitled to after the death of her mother, brothers, and sisters ; which, although in one sense given at his decease, because given by his will, which then took effect, were not certainly or effectually given, until by the death of the respective persons named they would vest in interest. Otherwise than upon those events, and
p. 526the survivorship of Mrs. Kane or her issue, they were never given to the latter.
' It was earnestly contended, that the first clause did not take, and was not designed to take, anything from the issue, and must be limited to the interests vested in Mrs. Kane. One reason advanced in support of this construction, was the limitation, to Mrs. Langdon’s children, of the gift of one-half of what was taken away by this clause, without including their issue in the bequest. This reason is neutralised by the circumstance that in the same sentence the other half is vested in trustees for Mrs. Kane’s life, and after her death is given to her children, and if she leave none, then to her brothers and sisters or their issue. Besides, the reason itself is much impaired, in its force, by the provision that the gift to the other children of Mrs. Langdon was to be taken as an increase of the shares given to them and their issue, in the same property. These words, it is true, may be satisfied by using them as an indication of the various classes of Mrs. L.’s children who were to take under the first clause ■ but in connection with the general scope of the will, and the previous words—“ or to the issue of the said Louisa,” they lead very forcibly to the conclusion that the gift to the other children of Mrs. L. was intended to be a gift to them respectively for life, with remainder to their issue, and probably with cross limitations over in the event of their decease without issue.
Another reason for withholding the gifts to Mrs. Kane’s children from the operation of the first clause of the codicil, was found in the omission of the words “ and her issue,” in the fifth clause; by means of which the power is conferred upon Mrs. Langdon to restore to Mrs. K. what had been taken from her by the codicil, without speaking of what had been taken from her issue.
It will be seen, elsewhere, that we construe this clause precisely as if those words were expressed in it, because it is obvious from the whole codicil that the testator here speaks of “ Louisa” as a stock or root, and as representing both herself and her issue. If the fifth clause required a literal construction in this particular, it would be exceedingly difficult to overcome the very plain language of the first clause, where it speaks of
p. 527the devises intended to be affected by it. Every share, estate or interest in land, which, on the testator’s decease, was given in the will, or either of the prior codicils, to Mrs. Kane, or to her issue, is in distinct and positive terms, embraced in the disposition made by. that clause of the sixth codicil.
Now as to the other uncertainties and ambiguities alleged to be apparent in the first clause.
First, as to the “ other children” of Mrs. Langdon who are to take. We think the provision that they are to take and hold this devise “ as an increase of the shares given to them and their issue in the same property,” leaves no room to doubt that the testator intended the devise for such of Mrs. L.’s children-, and such only, as already had a share in the several real estates embraced in the first clause of the codicil. No other children answer the description of the devisees, which is substantially “ the other children of Mrs. L. who already have shares in the same property.”
Thus, the testator intended, by this devise, to increase to one fifth the shares given to Mrs. Langdon’s children. (Mrs. Boreel excepted,) and their issue in the second paragraph of the will; to increase to one third the shares given to Mrs. L.’s four daughters in the Broadway houses, devised in the third paragraph, and the like. The effect of this construction is, to exclude Mrs. Boreel and her issue from any participation in the devises made by the first clause of the sixth codicil, excepting only the interest in the Broadway houses, and to limit the increase in each instance to the shares and interests of those children of Mrs. Langdon, to whom devises were made in the will and prior codicils, of interests in the same specific parcels of real estate.
There is no difficulty in the remainder of the first clause, keeping in mind the general scope of the provisions for the family of Mrs. Langdon. The testator gave the undivided half of all the property affected by this clause, to his executors, in trust for Mrs. Kane during her life, and after her death he gave the same half to her surviving children, or if she leave none, to her surviving brothers and sisters or their issue. The words, “ her surviving children,” should undoubtedly be construed “ issue her surviving and the devise is a trust during her life, and on her
p. 528death a legal estate in her issue, with an executory devise over to her brothers and sisters and their issue.
It is proper to observe that the first clause of this codicil relates to real estate only.
By the second clause of the sixth codicil, the testator devised and bequeathed “ all estates, rights, and interest in lands, stocks, personal effects or money, to which” Mrs. Kane or her issue would have been entitled, under his will or any of its codicils, after the death of her mother, brothers or sisters.
If this had stood alone, the argument would have been plausible that it applied to all estates and interests which vested in possession, for the first time, on or after the death of the respective relatives enumerated. But when considered in connection with the first clause, which includes all such estates and interests in land as were given to Mrs. Kane or her issue on the decease of the testator, it is evidently impossible to give due effect to both, without limiting the second clause to its literal significance, that is, to interests which the will and codicils gave to her and her issue, which were to arise and vest upon the death of those relatives respectively. And further, all such gifts, as we have seen, were then to take effect only upon certain contingencies ; there being no devise or bequest to which' Mrs. Kane or her issue would then be entitled, for the first time, except such as were purely contingent
A few words will dispose of the remaining observations made upon the second clause. The limitation of the gift to the brothers and sisters and their issue, is to be construed according to the uniform design of the will, giving life estates to the brothers and sisters, and remainders absolute and in fee to their issue. A just construction would probably add a remainder over, on their death without issue, in order to give full effect to the provision that the gifts were made as an increase of their respective shares or interests in the same property. As to the brothers and sisters who were to be benefited by the gift in this clause, the same rule is to be applied that we have stated in our examination of the first.
It was said that the gift involved an absurdity in this, that it gave to a brother and his issue, for example, an interest which
p. 529could never arise except upon his death without issue. This is nothing more than what occasionally and necessarily occurs from the use of general terms in speaking of families and classes of persons in testamentary dispositions. Whát cannot take .effect, when such terms are used, presents no obstacle to giving full effect to those dispositions to which the terms are applicable. Therefore the language used in this case does not impair the clause. The interest which Mrs. Kane would take on the death of one of her brothers without issue, will devolve upon the other brothers and sisters.and their issue.
If we limit the operation of the second clause in its effect upon the real estate, to those interests which were contingent until the death of the several persons whose death was to entitle Mrs. Kane or her issue to such real estate, we see no reasonable ground upon which we can give it a wider or more extended application in respect of personal property. The testator has shown no intention to make a distinction in this clause between real and personal estate. He groups all together, in a single sentence, attaching the same test of interest to all, both in point of time and manner. He has not said, in any part of this codicil,- that he intended to take from Mrs. Kane any share or interest in personal property given to her on his decease, except as he has expressed himself in the third clause, and there is no provision which will warrant us in giving by implication such an effect to the codicil in respect of such shares or interests. The instrument is abundantly explicit in what the testator has declared on this subject. It leaves no room for implication.
Our conclusion is, therefore, that the shares and interests in personal property which vested in Mrs. Kane on the death of the testator, other than those enumerated in the third clause, are not affected or impaired by the sixth codicil, so far as her right is concerned. The contingent interests in the same property, which devolve upon her issue by substitution in the event of her death before the termination of the precedent life interests therein, fall within the second clause of the codicil.
We observe, further, that neither the executory devise and bequest to Mrs. Kane, nor those to her issue, in the real and per
p. 530sonal estate given to Hr. Bristed for life, are affected or impaired by this codicil. The first clause has no application, because the estate in the land devised to Bristed is an executory devise to these parties. The second clause does not apply, because this executory devise, and the limitation over in the legacy, do not take effect on or after the death of either the mother, brothers or sisters of Mrs. Kane. They will take effect, if ever, on the death of Mr. Bristed.
To proceed with the sixth codicil. The third and fourth clauses do not require any observation in this place, and we will next consider the fifth.
The strongest argument in favor of avoiding the codicil in whole or in part, thus leaving the provisions for Mrs. Kane in the will to stand unimpaired, is founded upon the difficulty of giving effect to this fifth clause. It is perfectly clear that the power conferred upon Mrs. Langdon to restore to her daughter and her daughter’s children the property taken from her in the previous clauses of the codicil, or some part of that property, is a vital part of the “ different disposition” made by the testator ; and unless that power be valid and effectual, the codicil must, to the extent of the property, which the power was intended to affect, be deemed to have failed to revoke the will.
We do not feel any difficulty in disposing of the first question presented, on the construction of the fifth clause, viz.: whether, in order to “ give to Louisa and her issue” the donee of the .power, must give to them equally, per capita, or can appoint to them to take in succession. We think the testator’s intention, so frequently and uniformly exhibited in the will in his gifts to all of Mrs. Langdon’s children, must govern here ; and that it is clearly within the power, and is distinctly its design, to confer life estates and interests on Mrs. Kane, with remainders to her children and issue. In making a direct gift to her and her issue, the power, we think, imperatively requires such a limitation of the gift.
So if the donee had chosen to create a trust for Mrs. Kane and her children, in the execution of the power, it is quite apparent that she might appoint the use of the property to Mrs. Kane for life, and the remainder to her children; and it is pos
p. 531sible that she might have limited the whole to the children in trust, to the exclusion of the mother, although we need not decide that point.
In the next place, it is asked whether the testator meant to restore what had been taken from Mrs. Kane’s issue, assuming that the codicil does take something from them, and did he intend to permit Mrs. Langdon to give to the issue what he had taken from Mrs. Kane ? The answer to the latter inquiry, so far as an answer is necessary, has been given in our preceding observations. As to the other point, the whole context of the codicil, as well as the whole scope of the will, show that the testator designed to include in the power what had been taken from the issue, with that taken from Mrs. Kane. If limited to what had been taken from her, it will render the power to give to her and her issue nearly or quite insensible. The power, thus limited, would apply only to her life interest, with the exception of a small part of the entire property, and to give an estate which terminates with her life, to Mrs. Kane for life, and after her death to her'issue, is an absurdity.
The will, throughout, proceeds upon a principle of absolute equality between the children of Mrs. Langdon, and upon a plan of giving life interests to each, with remainder to their respective issue ; the child in every instance preceding and representing the issue, as the stock and the meritorious fountain of the-gift. The only infringement of this principle of entire equality is found in the codicil, and there it is still affirmed as to Mrs. Kane’s brothers and sisters and their issue. In the object, apparently, of exhibiting his displeasure towards Mrs. Kane, the testator, while he withdraws from her all control of her life estate, still continues to her issue, in the property given in trust in the first clause of the codicil, the same legal residuary interest he had previously conferred. And, there being no possible-reason to suppose that he intended to visit upon her children a greater measure of his anger than he did upon her, it would be-doing the greater violence to his general intent in the disposal of his property, to limit the power in the fifth clause to the property taken from her, and thus to exclude from it that taken from her issue.
He evidently speaks, in this part of the codicil, of Louisa, as
p. 532he had regarded her in the prior will and codicils, that is, as the parent stock and representative of this part of his family, by and through whom, and after her previous use and enjoyment, her issue were to become entitled to a part of his estate. When he said that Mrs. Langdon might restore to her and .her issue, one half of the property he had “ taken from Louisa,” he plainly meant what he had taken from her and her family regarded as one stock or branch ; and to give effect to his design as shown by the will and all the codicils, we must consider this clause as if it read, “ taken from Louisa
and her issue and given to others.”
The most serious difficulty remains to be noticed. It is said to be simply an impossibility to execute this power so as to give to Mrs. Kane and her children, half “ in value” or any lesser valued share, in the estates and interests attempted to be taken from her and them by this codicil. Those interests consist, not merely of life interests, which might be estimated, but of defeasible vested remainders, contingent remainders, and executory devises and bequests, taking effect on the failure of issue. It is too plain for argument that such interests are. incapable of valuation, and if the power is to be exercised solely in reference to a fixed proportion of the value of all the estates and interests taken from Mrs. Kane and her issue, it is utterly impracticable.
It is contended that the true construction of the clause is this ; Mrs. Langdon may give to Mrs. Kane and her issue, any part of each and every estate, interest, share or legacy, taken from her or them, not exceeding one undivided half thereof. Thus, she may restore to them one fourth, or one half, of the lot on Lafayette Place, mentioned in the fourth clause, or of the property in Grand street, and so on, until she shall have exhausted the power. But this, it will be .observed, discards entirely the words “ in value,” in the fifth clause. Those words, it is said, have a meaning, and the court is bound to give effect to them, without change or rejection, as much as it does to any other words in the codicil.
We have considered this subject with the care that its importance demands, deeming that upon its determination the whole fifth clause depends, and with that clause the whole revocation made by the codicil, so far as it affected the property which the testator sought to subject to the operation of the power.
p. 533It is undoubtedly true that, in construing a will, we are bound to give full effect to every part of it, and to single words as well as to sentences and paragraphs. But it is a paramount principle that the court shall carry out the general intent of the testator.; and where a particular word or sentence is repugnant to the general intent and design" of the whole will, or tends to render it incongruous or insensible,.such word or sentence must give way, rather than sacrifice the whole scheme of disposition disclosed by the general tenor of the instrument. (1 Jarm. on Wills, 420, and the cases cited.)
To "examine the point with a special application, let us suppose that Mrs. Kane and her issue had not been mentioned in the will or previous codicils, and that the sixth codicil had taken up the same estates and interests it now speaks of, treating them as having been given in the previous instruments to John J-. A. Langdon, who had since died. We will suppose, further, that the sixth codicil had thereupon given one half of those interests to the executors, in trust for Mrs. Kane and her children, as it now does in the first clause, and then in the fifth clause had conferred upon Mrs. Langdon, in the same terms this fifth clause does, the power to give to her and them, “ any part not exceeding one half in value of the real and personal estate,” by the will and previous codicils given to John J. A." Langdon and his issue.
Would the court have any difficulty in saying that it was bound to give effect to the manifest general design of the testator to provide for his grandchild and her family ; and if the special limitation attached to the exercise of the power by the irse of the words “ in value” were repugnant to that design, or, if applied to the power, would render its exercise impossible, that the court must sacrifice those words, rather than sacrifice the testator’s scheme, and thus carry into the residuary estate the property destined for the benefit of the granddaughter and her issue? We are satisfied no court would hesitate a moment, if the subject were presented to its consideration in this aspect.
Does the actual presentation of the point authorize us to view it in a different light? It is true the testator had given' this property to Mrs. Kane and her issue in the will and prior codicils ; and it is a sound rule that the dispositions made by a
p. 534will are not to be disturbed by a codicil, further than is absolutely necessary in order to give it effect, and a clear disposition made by the will, is not revoked by a doubtful expression or inconsistent disposal in a codicil.
Here the intention to revoke is not doubtful or ambiguous. It is as plain as language can make it. The actual effective revocation is, to be sure, limited in terms, (with a single exception,) by and to the different effective dispositions made by the codicil itself. To give effect to the codicil as intended, all the dispositions in the prior instruments must give way. The intent is effectually carried out as to half of the property, by vesting it in trust in the first clause of the codicil. If the power apply only to one half of the residue, (or one fourth of the whole,) then, without regard to the questions arising on the third clause, the intent is fully carried out as to one fourth of the property, by giving it to Mrs. Kane’s brothers and sisters, to Mrs. Lang-don, and to the residuary legatees ; (making, with the gift in trust, three fourths of the whole ;) and the inquiry would then be limited to the remaining fourth, and to the question whether it should pass under the will, or be subjected to the power in the fifth clause of the codicil.
But conceding, for the present, that the power applies to one half of the property in question, then the inquiry remains, shall the plain intention of the testator, to revoke his previous gifts of that half, and instead of a direct gift of the same to Mrs. Kane and her issue, to make her and their enjoyment of the same dependent upon the discretion and judgment of her mother, be entirely defeated, because, instead of using the words “ not exceeding one half,” he has said, “ not exceeding in value one half,” of the real and personal estate taken from her and them by the codicil ? It seems to us we should do great injustice to the testator, if we permitted the insertion of these words, doubtless an inadvertent expression, to defeat the power, and thereby either destroy the gift to Mrs. Kane and her children, intended to be made through the power, or do equal violence to his declared purposes by holding them to be entitled, under the will, to the property embraced within the terms of the power.
There are other reasons besides the one founded on the testa
p. 535tor’s plain meaning and design, which forbid us to overturn this power as being void for uncertainty. One is, that the execution of the power by an appointment to the extent of half “ in value,” would produce to the beneficiaries of the power, the same result, in its practical operation, as an appointment of an undivided half of each and every parcel of the property affected. That is, the value of the gift would be precisely the same, on the power being exhausted, in the one case, as in the other. And it would be an extreme example of judicial construction, to declare this codicil void for ambiguity or uncertainty, merely because of the addition of these words, “ in value,” which, if made effective, would do no more than to alter the mode of arriving at the gift, without affecting at all its ultimate amount or extent, as conferred by the other words used independent of those.
Another reason is found in the consequence which would result from giving effect to those words, if there were no difficulty in the practical execution of the power in that mode. Under the power to appoint any part not exceeding half in value, it is contended, and probably rightly contended, that Mrs. Langdon could make an appointment operating upon the whole of any one lot or parcel of property given to others in the codicil. Thus, that she could give to Mrs. Kane and her children, the whole of the lot on Lafayette Place, devised to Gecilia Lang-don in the fourth clause, and could, in like manner, give to them the whole interest and estate devised to either of the other brothers and sisters of Mrs. Kane, not exceeding in the aggregate one half of the property subject to the power. The effect of this would be to give to Mrs. Langdon an unregulated and capricious control over all the property subject to the power, by which she could take from some of her children all that the codicil gave to them, and take none from others; a control entirely at war with the principle of equality between those children, which is so distinctive a feature of all the testator’s dispositions, and one which we have no reason to believe the testator ever thought of conferring.
The necessary effect of the limitation of the power to one half of this property, which as a whole is, and during Mrs. Langdon’s lifetime must be, wholly incapable of appraisal or
p. 536pecuniary valuation, is to require, in its execution, an appointment of undivided portions of the property. Whether the donee might execute the power at several times, giving at one time an undivided fourth and at another an eighth, or the like, we need not now determine. The power to give any part, not exceeding an undivided half, of the real and personal estate treated of in the codicil, in our opinion relates to a part of the whole propérty given, not to a portion of any one lot, parcel, or bequest. It is so literally. It applies to “ any part, not exceeding half, of all the real and personal estate not to “ any part, not exceeding half, of all or any of the property.” The words “ any part ” are qualified by the immediate sequence of the words “ not exceeding one-half,” and by the nature of the interests affected, so as to be subordinate to the latter words, and to refer merely to lesser undivided shares in the whole property affected. This interpretation also accords better,, as we have seen, with the principle of equality among the other children of Mrs. Langdon, so sedulously maintained throughout the will and codicils, including the one under consideration.
Upon the whole, we cannot accede to the proposition that the provisions of the sixth codicil, or any essential part of it, are so uncertain, vague, or doubtful, that the codicil should be declared void or inoperative. We think, with the application of the ordinary principles of law governing the construction of wills, guided by a mind fairly disposed to do justice to the testator’s clearly expressed intentions, as well where they tend to diminish the gifts to his issue as where they serve to enlarge them, there is no insuperable difficulty in giving effect to the codicil, none which a patient investigation will not satisfactorily overcome.
Our next inquiry will be, to what property is the power given to Mrs. Langdon applicable.
Our conclusion that the power applies to no more than an undivided moiety of each specific portion of the property subjected to it, disposes of the idea that it might be applied to the entire half part which the first part of the codicil gives to Mrs. Kane’s brothers and sisters, leaving undisturbed the half part in that clause given to trustees, for her use during her life, and afterwards to her children. And the point whether the latter half is or is not subject to the exercise of the power, has no
p. 537other importance than this, that as it is now limited, Mrs. Kane has a separate estate in it for life, which is inalienable, whereas, if operated upon by the execution of the power as attempted, her life estate will be a legal interest.
While on this point, we may as well dispose of it, by saying that in our opinion the property thus vested in trust in the first clause is not within the scope of the power conferred by the fifth. It is not substantially “ taken from” Mrs. Kane, nor is it, in any beneficial or practical sense, “ given to others.” It remains her own during life, with the same extent of estate and interest for all the purposes of use and enjoyment, and the same in every respect, except the power of making leases and selling, which she had under the will. By the words “ given to others,” the testator meant something more than a nominal title without any beneficial right or interest, such as is given to these trustees. Therefore, if the qualification of her estate, made by changing it from a legal into a trust interest, is pro tanto, taking an estate from Mrs. Kane, the property so taken is not “ given to others ” within the meaning of the codicil. The most essential power taken from her, that of sale, is not conferred upon any one; the trustees having, in this respect, no greater right than she has herself.
The power applies to the half part of the real estate interests given to Mrs. Langdon’s other children and their issue in the first clause, and to the whole of the real and personal interests given to them in the second clause of the codicil; and, of course, it operates to the extent of an undivided half of the half part so given in the first, and of the whole contained in the second clause.
Next, as to the lot described in the fourth clause. The codicil in so many words gives the lot to Cecilia Langdon. The further expression, that it is to be had and holden, as if her name were written in the original devise thereof, was inserted in order to subject it to the proviso which was attached to the lot, in that devise to Mrs. Kane in the fifth codicil. We have no difficulty in deciding that this lot is subject to the exercise of the power.
As to the share of Mrs. Kane in the water stock, mentioned in the third clause of the sixth codicil, there can be no doubt
p. 538that the power applies to the residuary gift made to Mrs. Lang-don’s other children. The income being given for life to the donee of the power, the question upon its application to that is more embarrassing. An absolute gift of money, coupled with an express power to appoint it to a particular person, is a legal anomaly. The gift confers a general right of disposal, upon which such a power is a qualification, rather than a power in its legal sense. We do not see how this power can be applied to the income of the water stock, either as a beneficial power, or as a special power in trust, within the definition given of those powers by the revised statutes.
Proceeding upon the conclusion we have formed as to the mode of exercising the power conferred by the fifth clause, which is, that it must be exercised upon undivided portions of all the property taken from Mrs. Kane and her children, and not -by singling out the whole or any less portion of any one specific item of property, we think this legacy of the income of the water stock comes within its operation, not as a power technically, but as being thereby made a conditional legacy. The effect of the third and fifth clauses taken together is the same as if the testator had said, “ I give this income to Mrs. Langdon for life, on condition that if she exercise the power conferred on her so as to restore to Mrs. Kane any part of the property by this codicil taken from her, she shall yield to her the same part or share of the income of the water stock.” He had, by the codicil, taken the water stock from Mrs. Kane, and had given it to others, Mrs. Langdon being one ; it was plainly Ms intent to provide for a restoration of a share of all the property so taken away, and by the codicil given to others ; he has made no exception in favor of the donee of the power ; and we think none should be made because of a technical difficulty in its exercise.
Especially should this be so, when the donee, in executing the power, has made no exception. She has applied it to all the property, which by the codicil she was authorized to give and appoint to Mrs. Kane and her issue. Whether regarded as a gift coupled with the power, and, therefore, conditional, or as an absolute gift to herself, Mrs. L. was authorized by the codicil so to give and appoint the income. Her omission to except
p. 539it shows, that whether controlled by the power or not, she intended to give it to her daughter, and her note to the executors of June 9th, 1848, confirms this intent in the most unequivocal manner. On this ground, if we are wrong in treating it as a conditional legacy, we shall hold that the half of the income during Mrs. L.’slife has been vested in Mrs. Kane and her issue.
It remains to decide upon the two legacies of twenty-five thousand dollars each. They are taken from Mrs. Kane by the sixth codicil. Are they by that codicil given to others ?
There is no gift of these sums in express terms in the codicil. The revocation of the legacies caused them to fall into the general residuary personal estate. By the first codicil, half of this residuary estate is given to William B. Astor absolutely, the income of the other half is given to him for life, and the balance unexpended by him in the improvement of the real estate devised to him and his family, is given upon his death to his children, subject to his appointment among them.
The direct consequence of the sixth codicil is to confer these two legacies upon Mr. Astor and his family. They are not given to him or them directly, or in terms, by the codicil; but they are so given indirectly. Mr. A. and his family are entitled to them by the making of the codicil. But for its execution, they never would have been so entitled. Therefore, does not the codicil give to them the two legacies, within the spirit of the fifth clause ?
We cannot discover in the will or codicils, any motive the testator could have had to except these legacies from the operation of the power. He has expressed no intention to except from it any specific portion or parcel of the property affected by the sixth codicil. We cannot infer such an intention from his omission to bequeath the legacies specifically to Mr. Astor and his family in the codicil. That would have been pure surplusage, so. far as the substituted legatees were concerned ; because the legacy was effectually made to them by the entire revocation of the bequests previously made to Mrs. Kane. The first codicil gave these revoked bequests to the residuary legatees, just as certainly as it would have been done by a new direct gift.
On the other hand, there is much force in the argument that the same reasoning would apply if there were no residuary
p. 540legatee, and by the revocation the legacies had gone to the next of kin. And moreover, the pointed language of the revocation of these two gifts, so different from the general revocation in the last clause of the codicil, occasions us no little difficulty in determining the question. It may be said that the short words, “ I revoke the legacies entirely,” were adopted as having the desired effect to transfer them to the residuary legatee in the proportions and for the uses expressed in the will, instead of resorting to an express gift to those legatees, which, if fully inserted in the codicil, would have required considerable amplification in order to vest the legacies in the same manner that the'residue was given by the first codicil.
As to the suggestion that the words “ given to others” will be deprived of all significance and effect, if the power be held to apply to the two legacies, we answer that those words will, on that construction, nevertheless have effect in excluding from the operation of the power the half of the real estate given to trustees in the first clause.
In fine, we conclude, though not without hesitation, that a just and proper interpretation of the sixth codicil requires us to decide that what the codicil works out by its direct operation and effect in favor of others, must be deemed as given by it to those others, and that the two legacies in question come within the scope of the power conferred on Mrs. Langdon.
The execution of the power next demands our attention. The first instrument executed by Mrs. Langdon, dated April 6th, 1848, is in terms large enough to embrace all the property to which the power was applicable. The only difficulty is in the form of the limitation, which is “ to the said Louisa and her issue in as full and ample a manner as I can or may appoint and give under the provisions of said codicil or any part thereof.”
As we have already said, the power, properly construed, required the donee to give a life estate to Mrs. Kane, with remainder to her issue; and by issue is plainly meant, not merely those living at the testator’s death, or when the power was executed, but all the issue of Mrs. K. during her life. Such being the construction of the power, and the appointment' operating only by and under the codicil, it can have no other or different effect than we should give to the latter.
p. 541Although, in this respect informally expressed, the appointment, in connexion with the will, gives to Mrs. Kane an estate and interest for her life in all the property to which the power was applicable, including with it the income of the water stock, and to her issue, now born and hereafter to be born, the remaining absolute estate and interest in the same property. The issue living when the appointment was made took vested remainders, which would open to let in the others in succession as they should be born respectively. Those born since the appointment are, therefore, vested with the same estates and interests, and to the same extent, as those born before it was executed.
In giving this effect to the limitation to “ Louisa and her issue,” (and we can give to it no other, unless we hold that those then in being took, with her, equal shares in fee and absolutely,) we do not see how we can except from it the half of the two pecuniary legacies, although by the will they were given to her without qualification. So as to the half df the lot on Lafayette Place, mentioned in the fourth clause of the codicil. The power of appointment, apparently, does not authorize the donee to give estates to Mrs. Kane in one parcel of the property different from those given in other parcels. The limitations, it would seem, must be the same in all. If the donee might have exercised a discretion in this respect, she has not thought proper to do so. She has made a simple appointment of the whole, and as in respect of the great mass of the property, she could confer no more than a life estate or interest on Mrs. Kane, and, therefore, no other is given in that part by the execution of the power, no other or greater interest can be established, upon the terms used in such execution, in her favor in the residue of the property.
As the power is silent in regard to any ulterior limitations on failure of issue, we must also hold that none were intended, and therefore,- none are made by the execution of the appointment.
The donee having executed the power, by an instrument giving to Mrs. Kane and her issue all that she could give them under the codicil, and such estates and interests as she could lawfully give; it is unnecessary for us to consider the questions which
p. 542were argued as to the nature of the power, and whether it was discretionary or imperative.
A judgment must be entered in accordance with our decision upon the various points determined :—The respective parties to bear their own costs of the suit. The questions decided relate almost exclusively to provisions made by the testator for a single branch of his family, and, therefore, the case does not, apparently, fall within the class of like controversies in which the court has directed the costs of the suit to be paid out of the estate at large. As this point was not argued, however, we will not refuse to hear either of the parties in regard to it, on settling the form of the judgment to be entered.