Holden v. Blaney

Endicott, J.

The question in this case is whether the share of Mary B. Sawyer goes to her executor, or falls into the residue of Jason Chamberlain’s estate as intestate property, to be distributed among all his residuary legatees.

In deciding this question, the intent of the testator is to be gathered, not only from the codicil, but from the provisions of the will, so far as those provisions are not altered by the codicil. For it is an established rule of construction that the codicil shad change the will only so far as the intent is manifest; and the *425 provisions of the will are not to be disturbed further than is necessary to give effect to the codicil. Quincy v. Rogers, 9 Cush. 291 , 295. 1 Jarman on Wills, 160.

By the will, it is clear that Mrs. Sawyer was to take a vested interest in one share absolutely on the death of the testator, and that he intended by his will to dispose of his whole estate. And, in our opinion, it is equally clear that the testator did not intend by the codicil to alter the provision vesting one share of the residue in Mrs. Sawyer, but only to postpone the time of payment. This is evident from a careful examination of the language of the codicil. There is no devise over showing that the testator intended to change the will in this respect. The share is not devised in terms to trustees, but only that it shall be held in trust, and no other trust is named except to provide for her support ,• and the share thus to be held in trust is referred to and described as the share bequeathed in the will. The trustees are not limited to the income in providing for her support, but they are to pay her “ a sufficiency for her comfortable support and maintenance ” during her life. This indicates, in the absence of a devise over, an immediate beneficial interest, and a postponement only of the time of payment. Eldridge v. Eldridge, 9 Cush. 516 . Fuller v. Winthrop, 3 Allen, 51 , 60. In all the cases cited by the defendants to show that a right to expend the principal by a tenant for life does not enlarge the gift and make it a legacy, there is a devise over on the death of the party having the bene ficial interest during life. In the event of the death of her husband, “ all the remaining portion of her share of my estate shall then be paid over to her,” as if the property was hers, although for a certain time to be held by trustees. In stating the purpose of the codicil, he uses the words, “ thus limiting the payment in full during the lifetime of the husband,” implying postponement only of the time of payment.

Nor can we give the construction to the last clause for which the defendants contend, that the testator intended under all circumstances to prevent the husband from having any benefit in his estate, and, therefore, that it must be inferred that he did not intend the share should vest in her, but that it should remain intestate property. The effect of this construction would be to control the evident intent of the testator in his will to dispose of all his property.

*426 The words “ my purpose in thus limiting the payment of my said daughter’s share of my estate during the lifetime of her said husband, is to prevent,” &c., must be taken to refer to the preceding clause, clearly indicated by the use of the word “ thus,” and to apply to the provisions that are there made. Those provisions refer only to her maintenance during life, and the payment of the residue to her, if she survives her husband. In other words, it was the intention, as expressed, to prevent the husband from having any benefit in the estate during the lifetime of the wife. • Decree for the plaintiff.