Joiner v. Joiner

Joiner v. Joiner, 78 So. 369 (Miss. 1918)

Court: Mississippi Supreme Court · State Highest Courts
Decided: March 15, 1918
Judges: Stephens
Citations: 78 So. 369117 Miss. 507

Syllabus

1. Wills. Construction. Codicil. In construing a will and codicil, it is the duty of the court to ascertain the controlling intention of the testator, and in arriving at the testator’s intention, effect should he given as far as possible to all the provisions of the will and codicil, read as one document. 2. Wills. Revocation. Codicil. A devise contained in a will should not be upset unless the words employed in the codicil show a manifest intention to revoke the gift contained in the will, or unless such intention tc revoke is necessarily inferable from the words of the codicil. 3. Wills. Construction. Coddcil. A codicil must be construed as a part of the will to which it refers and to which it is an addition or supplement. 4. Wills. Construction. Codicil. “In lieu of.’’ Where a will after devising certain described property to testator’s wife, devised by, “item three” to testator’s son “all of the remainder of my real and personal property undisposed of herein,” and afterwards by a codicil to his will the testator devised his residence to his wife and certain described real estate not disposed of in the original will to two nephews and then recited that testator changed “item three” of the original will, and “in lieu thereof” devised to testator’s son certain described real property. In such case the effect of the codicil was to devise to the son the property specified in the codicil in lieu of a general devise of the real estate under the residuary clause of the will, leaving the residuary devisee of personal property to the son unchanged, for the expression “in lieu thereof” may or may not mean total substitution, according to circumstances and the other language employed. 5. Same. By such a construction of the codicil a partial intestacy is prevented and the primary purpose indicated by the testator in the-introductory clause of his will, of making full disposition of all his property is carried out.

Summary

Appeal from tlie chancery court of Leflore county. HoN.'Joe May, Chancellor. Suit between Dorsey A. Joiner and Mrs. N. R. Joiner to construe a will. Prom the decree rendered, Dorsey A. Joiner appeals. The facts are fully stated in the opinion of the' court. There can he no dispute that item 2 of the codicil is inconsistent with and repugnant to at least a part of item 3 of the original will. What rules of construction govern when there are inconsistent and repugnant clauses? This is the important question presented for determination in this cause. There is no dissent in the authorities over the proposition that inconsistent and repugnant clauses or provisions must he construed so as to harmonize and give effect to each of them where possib-lé. 40 Cyc. 1416. The inconsistent clause and the repugnant provision in the codicil and in the original will has reference only to the land bequeathed to the appellant under item 3 of the original will. We simply ask that effect be given to both the codicil under which the appellant is deprived of land bequeathed to him in the original will, and the will under which the appellant is entitled to the personal property bequeathed under item 3 of the original will. We respectfully submit that the learned counsel for the appellee have not cited any authority whatever that would aid this court in construing the inconsistent or repugnant provisions in the will and codicil. They admit that the rules of construction stated in our brief •are fundamental and elementary'and are the rules that •should obtain, and they further admit that while these rules and principles govern the construction of wills ■and codicils generally, yet they make the marvelous statement that they have no bearing or application on the ■disposition of the case at bar. What peculiar attribute •does the will and codicil in this case possess that it should be excepted from the universally admitted rules ■of construction? There can be but one answer. If these well-recognized rules of construction are to obtain, "then the appellee’s contention is incorrect and this case must be reversed. Let us say, in passing, that the authorities mentioned by the appellee in our humble judgment are not in point; they have no application to wills and codicils where there is an inconsistency or even apparent repugnancy. We have no fault to find with the ■quotation from 40 Cyc., page 1394, for the intention of ■'the testator is manifest. He bequeathed all of his personal property not otherwise disposed of in item 2 of the original will to the appellant. That 'bequest- has never been revoked. It is true that the entire bequest in item 3-of the original will was partially revoked, but under the authorities mentioned in otir brief when the ‘testator alters or changes his will in one particular there arises an implication that it was not intended to change or alter the will in any other respect. Vaughn v. Bunch, 53 Miss. 518; 1 Jarman, page 180. It is certainly the law that a will will be construed so as to avoid partial intestacy and so • as to uphold the will and the citation from Cyc. is certainly not against this proposition, for it says that a construction cannot be asked which would destroy the manifest intention of the testator or the positive law of the case. Vannerson v. Culbertson, 10 S, & M. 150, is not against the construction for which we contend. We quote from this case relied upon by appellee. Again, learned counsel for the appellee greatly stress the ease of Marshall, Executor, v. Handley, 25 Atl. 325. If they had gone a little further with the quotation, made, we are inclined to think that this case would have shed some light and have been of some benefit in construing the inconsistent provisions in the instant case. We simply ask that this court do what the very authority relied upon by the appellee says that it is authorized to do, and so to construe the will as to give effect to both the codicil and item 3 of the original will. We repeat to emphasize, that the bequest of the lands in item 3 of the will is revoked' by the subsequent inconsistent disposition in item 2 hut we insist that the disposition of the personal property was not revoked, and that no disposition, inconsistent or otherwise, was made of the personal property in the codicil. In other words, the actual change whatever the language used, was only in reference to the lands, and in this connection we ask the court to re-read when construing the words “in lieu of” pages 7 and 8 of our brief. Item 3 of the will was supplanted and replaced only so far as it was changed by item 2 of the codicil. The following matters and undisputed proposition will, in our humble judgment, lead the court to the conclusion that this case, must be reversed: 1. The fact that the testator in the introductory clause of his will stated that he desired to' dispose of all his earthly possessions, is a determining factor. 2. The further fact that he did dispose of all of his property ought to he convincing. • 3. A codicil confirms rather than revokes a will and re-publishes the same, being different from a subsequent will. 4. A codicil only revokes a will to the extent necessary to give effect to the codicil. The two must be construed as one instrument. 5. Inconsistent provisions must he construed to give effect to both where they can be harmonized. 40 Cyc. 141. The construction must obtain which upholds the will and. avoids partial intestacy. 6. The will will not he disturbed further than to give effect to the codicil. 7. An expressed intention altering the will in one respect shows that .there is no implied revocation in other respect's. 8. The courts will not favor an interpretation that revokes a devise once given, and under a. codicil there can he no revocation beyond the clear unquestioned import of the language used. There is an inconsistency between the disposition of the land in the codicil and in the will. There is no inconsistency or repugnancy between the two as to the disposition of the personality. The two can stand together so as to sustain both the will and the codicil. We agree with eminent counsel for appellant that there can he no dispute that item 2 of the codicil “is inconsistent with and repugnant to at least a part of item 3 of the original will.” The fact of it is, item 2 of the codicil repudiates and was intended to repudiate, item 3 of the will. We shall ask the indulgence of this court for repeating once more what the testator said in item 2 of the codicil. This codicil provides as follows: “I desire to change, and do hereby chang’e item 3 of my said last will and testament, dated the 18th of February, 1915, and, in lien thereof, hereby give and devise to my said son, Dorsey Joiner, what is known as the R. L. Portwood place, consisting of forty acres, at or near Sunnyside, Leflore County, Mississippi.” If the English language could express an intention to replace item 3 of the last will and testament, in stronger language than that used -in this codicil of this will, we should like for counsel to advise us. Where the testator said, “I desire to change, and do hereby change item 3 of my said last will and testament, dated the 18th of February, 1915, and in lieu thereof, hereby give and devise, etc.” He certainly meant, if he meant what he said, that the provision made in the codicil was intended to be in substitution of, and for, the provision made for his son in item 3 of the will. To hold otherwise," it does occur to us, would be to give to this codicil a meaning and intention that is at variance to, and directly opposite to, the plain language used by the testator. It is refreshing to notice the answer that able counsel makes to our reference to the meaning of the words “change” and “in lieu thereof” as construed time and again by the various courts of last resort, which have been grouped and expressed in “words and phrases.” It is no answer to these authorities which we have quoted, for learned counsel to say: “We believe that the supreme court has at least some faint conception of the meaning of the plain and simple Anglo-Saxon word ‘change,’ and we are likewise of the opinion that even without the aid of ‘words and phrases’ the supreme court of the state of Mississippi has some idea as to what is meant by the words ‘in lieu of.’ ” We submit that this is a very poor answer to our reference, and we quite agree with counsel that the supreme court of the state of Mississippi has some idea as to the meaning of these words, but, if there is anything elementary, it is that in construing wills, as this court has said in the case of Tucker v. Stites, 39 Miss. 196. “That the words used in a will are to be construed in their plain and natural sense, unless a different intention be manifested by the context.” It is for this reason that we quoted “Words and Phrases,” to show .how other supreme courts construed these simple words, and thought it might be of assistance in this case. The truth of the business is, that there is nothing in this codicil to be construed, as the codicil construes itself, that is, if the words used are to be accorded their “plain and natural sense.” ' With just one other reference we shall close, as we do not care to worry this court with any further citations of authorities, for your honors do not need authorities to tell you the meaning of the plain, simple language that was employed by the testator in this ■codicil. It will not do for our able counsel to suggest to this court what a hardship his client might endure •or suffer should this codicil not be construed as he would have you construe it, for this court has said, as we have heretofore quoted in the Crosset cas0e, 7 So. 207: “Where a devise bears its own clear interpretation upon its face, the supreme court cannot bend it to meet the exigency of any hardship that may arise from giving it that construction which will accomplish the testator’s intention. ” To give to this codicil the meaning that counsel would have you to give it, would be not to construe this codicil, but to make one, and to give to appellant all of the personal property at the expense of appellee, who we sadsmü#, i&wefamesiMínsiíbfevfar amyidfevisgbdháfcáaayoffive beQngrfxkd.efbyIftmtestá1í0ir. oorgís síi'up ow íuíb ^oíxstoHt aobi eaioit afid lo ahda oát ~a> fmoy süie'iq

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Stephens

Text extracted by OCR from a scanned original; check the original for exact wording.

Stephens, J.,

delivered the opinion of the court.

«Mí 8B ,aíliw «.«irní&íioo m íbíü si il .r^KiuomsIo ycúifl iy construing the will and codicil ox J. P. Joiner, ,d.ej-

ai«oNa!2r wife’ .ÉgMMmBWoteíii-hF§«& Is9mk }®iF4tste3f,<PpmeF;>4EJ«airiis «%Ms§doí^? osMmMip i P|i %ii Wff Holly Grove Plantation and,M^a knd 41) WbiiiW -ííEv sjytm JC.ÍU <{■•! axunitu. xk>\>x jvj ?-v>idí.jLi»Uü».?» tu siy>jj *&isíM^w^I m wfcsfto £?á¿ M. M? vd bevo lam os «*/ ..+ml i oq bu gini 1 iaJlA<.* JAA^XA.IZ JUjJUJ r/JJi, MO'JUWUJJ*. O t OMiV ' .< 1AA J .«VJ síi w^bMimssm m&fmpmm «*% apjsuwjm m w^»nw»»Mí A» tafeáis #s« wwtim ■zaffli&'h níi4e» M rntrn w» I^o&SPo^ •if'Vi i\jj¡.iíjcjííj -tt.ua liajuumwxjf) xxiw iityllkW ííüai:Mf\?&/K>.£> Xujjlj jl ml 1 l i

“Item 2. .1 hereby give, devise and bequeath, -to my -¶ i n -v -y • -r — v ,t T** iT rt 11 ''J/il Jit li. ■ ,Jeal hm MiphUi^r -a - Umi*,««.<>um wm> sMtiptf acres, said land being that bought troñi PereyaJtay.qnd *515 iwáif'ts; \tteíoIí6r^es? ivía3go:qsíx'aról ofá¥H&n^«ámpd% ita>eid^ÍÍBÍiBdaot .allshf Íke>^.fera®uailpj@peiítiy wwvcxarisaid. pjkeeofi a’lcfieJ (ObiaynnnB tboo: yo Jo, ,301915 yind iuorií?

“Item 3. I give, devise and bequeath fiajííüwiasiM ¡üeaíhe^iJoined, í®B?'©l .ihm m^sttefíl1 andipfer-soiiaidqarapwit^. uádffi$fepd9f^3befe¿nin.í6 ^rbiudO X .1» ”i<»‘ ^ííáippeiiiii ^s:>fihpcntDhOofd'thM w-Sbcmiy d>feilay©díswM-£Í NfesmH ^thuJoiHfflqñaiíd ibie^efepj;efe^ríb@ir im&$ gávéhg am^ibokd:teg®kdi^k«G|i±ríi|x.r9íss ^ílsrrpo o'isia ot ,iqqra

‘ ‘JnHBsfinpsicsQi^Meetf^íIa%B:eo^i®Me<|fJ |®M»led'.sí5f¿d de<dahed8fHHíjn^taí.ngifintvasinIy !la8ts'#4l ¡ag^ jtqstaltíént ifívsaiddcopmtyd thtóMhe rdSfeh ídapcoífaiEehfiíhr^-ílfrM) e'úf WdtnessqM;8í l¥'ffi^rjthfe)''tbftd«fl§|ngili Mtnfes^qrkblií by sign as subscribing vutfies^ds^iabrft^.'tBbbttestRjíf ¿íhl abovemamfedJíest'ator, J. P. Joiner, and have signed in yd'noii ^aasgontiw bgngrsmbíro odi ,dW JaJ&aJiOiicWiU hiid piEeséneepíandíÉte in QBEr^faaiftval^nrditb@ííp?naencq'g|£ eáchoí(¿heB.vBíí bus ,;n>nroT, /I .1, ,"xoisiaei bomart-ovodn NdM'tóse-fttíeolBtMdájy fofeipehnEaijyfííISItfe feímoao‘íq gixi .dlQí Al .A /lodoirA') to xsih ,tal.2 oiflGfej®.

nsnasA& dl ,A“ ■ '“A. F. G-abdNeb.”

, “LáhfeAÜiMaáS. Jffiátament of J. P, Joiner, Deceased, ©odicMfi ííiw' iBirrgho adt iti ladi iaovioado ad Ifiw il ;-iírU, J¡;:)PíqJainerf¡íqfí'Dqflo'aié’ cbuu%>, Miss&s®i|xpb h®ite¿ of csünxídíaifdidisp:o singeáiiafcl, aiMfe®yhríthí®í agelBlstweifty? ©neifeairs^rsfídqdssiMílg Í6f:)hpakin¿,iaKeo0icflíb.rtojdihe .yróifi Ndketpfqteírgseíaitfdb!^ fi®®- qnrtth© -ikS4hsíi0Í9'F®MiluÍ^;,5 lí$l5fi$&oma]íd, |calflishoiái(jiTdei!la'ife'xftis1<2ofli'ciIqt©lbsáád last will and testament of said date, to witevna -joAJasi 'io'íItiffi.iiO^tndíI ^«bipbani fesis^niáife) uésidéntíe láhd grblmdis htteched" therétoujandaiofeíocéupie&íb^ lme- and ^ya^lbriM! Hk8oF<P oobntyy'oMfssfssippi, y donsifciingi e# s0h§e,3>$ftte| (S®<^teíc^r.eÉ,.áÍo3i%3iaád'atófe5/i Mark? Madihi StrÉ^JoiñMe^fnwía isort to in tmaxs ydjot io gmiaia

“Item Two.n I desire to change, ahdqJpidtweiB^ ehasag© *516 give and devise to my said son, Dorsey Joiner, what is known as the R. L. Portwood place, consisting of about forty acres, at"or near Sunnyside, Leflore county, Mississippi.

“Item Three. I hereby give and devise to my nephew, J. J. Church, and my nephew, Ben L. Joiner, what is known as the Lower Holly Grove place, consisting of about seven hundred acres, in Leflore county, Mississippi, to share equally, said property being that heretofore devised by me to my said son, Dorsey Joiner;

“In witness whereof, I have signed, published and declared this instrument as a codicil to my last will testament, dated the 18th of February, 1915, on this the 21st day of October, A. D. 1915.

J. P. JOINER.

“Witnesses: We, the undersigned witnesses, hereby, sign as subscribing witnesses, at the request of the above-named testator, J. P. Joiner, and have, signed in his presence, and he in ours, and all in the presence of each other, this the 21st day of October, A. D. 1935.

° . “A. F. GARDNER.

“R. C. McBee.”

It will be observed that in the original will the testator disposes of all of his personal property. The codicil makes no reference whatever to personal property. In item 3 of the original will appellant is given “all the remainder of my real and personal property not disposed of herein.” In item 2 of the codicil the testator says:

“I desire to change and do hereby change item 3 of my said last will and testament . . . and in lieu thereof hereby give and devise to my said son, Dorsey Joiner what is known as the R. L. Portwood place, consisting of forty acres at or near Sunnyside, Leflore county, Mississippi.”

Appellee, the widow, filed her petition, asking for a construction of the will and codicil and particulárly item *517 2 of the codicil, and claims that as to the personal property bequeathed in item 3 of the will the testator died intestate, or, in other words, that item 2 of the codicil revokes the devise of the personalty as originally made in item 3 of the will. Appellant answered the petition, taking issue with Mrs. Joiner upon her construction of the will, and contending that the will and codicil should he so construed as to prevent a. partial intestacy as to the personal property bequeathed in item 3 of the original will, and that the primary object and purpose of item 2 of the codicil is simply to alter the devise of real estate. The primary question, then, for decision is whether J. P. Joiner died intestate as to the personal estate bequeathed in item 3 of the will. The chancellor ruled that the codicil revoked the devise of the personalty to appellant, and that as to said personalty J. P. Joiner died intestate, and the same descended to his heirs at law.

In construing the will and codicil, it is the duty of the court to ascertain the controlling intention of the testator; and, in arriving at the testator’s intention, effect should be given as far as possible to all the provisions of the will and codicil, read as one document. A devise contained in the will should not be upset unless the words employed in the codicil show a manifest intention to revoke the gift contained in the will, or unless such intention to revoke is necessarily inferable from the words of the codicil. In the present case appellant is the only son, is one of the two heirs, and the natural object of testator’s bounty. In the original will, the son by item 3 was made the residuary legatee and devisee of both personal and real estate. The testator had two nephews, neither of whom is mentioned in the original will. It appears that the codicil serves more than one purpose in this case. By item 1 of the codicil the mansion house of the testator is devised to his wife. By item 3 the Lower Holly Grove plantation, *518 ©|®¥Ísii4e^«C)iqaítótit)fe®i65elsi[haíi¿@á> átOTesfrModBvá^dotb Sfeé&tw^ote^liéflíái, i&wJsxOMsrdSi ;&»# BéxfjMl'IWp.srf. v$3© i«f>dk<P#cl®iB ctosdgeteí Ae¡ stei(gffliab#¿llj:ikat) tÍDáfctwithi-AífeíTái^Ktissi.'iBliiéS opl§8íO¥ntfei^vKfe& jbaMNSbe náily»ñí®<ei:W (áaái^éÉatraá) á>asa^B^fcffilI^|<|Éem.IKv0fej(£BLeí®dSMWt: im bnKfMgM@nt>itftei sí@£pfi(jaaít£<tíiafe‘JtHfe iéséato*¡cdo;es;á©.t Mfynín. Iftófe>!2 tefe tiév/cQdici]0ít]ia®r.tteTír!'e®®k6stát@rf¿;vV'3si(!)f efele'íi’oj^gáMtewiiríiííSi® Matempntl m: Mtf'ffladssir© &ó díángeítiiiS} dbokfetóeliy fetoáfag^iiéá^iS^o'^ÍTÍelEogteps)!^ laidíabf'ííe^ufe.sél Jfi@¿íi®.pp®lteéicppail tMi laingujúgw' ‘Mkl lí@a 1b¿é?£S¿@lB’0ííIti-áMBcolit'el3|te(J tháitMIMso&ngnkgeois ^am>iamií:)iiH]a¿hbig‘aéiis,fíaÍBÍ9til2at''ifk.e;íixajrti)afírar .d'évfe® itála^SasI) feéIVillíH'Ifi)4kii(5cSaiifeeai¡ioai is9dtem%>tlieiif>tlie -festatefr tMüM b®íH3Eák©rffis|»3Dálti«rLBfi:y)s pdístail jKíbp-.éítyy ^¿ftnaap®ftikl£;áaééstec^:i5#á fcaodjieadfeqiffei isí aiSfe-g¡elh®í BMprPtotteoflfliat éHé l®s'iaí®b?Bfeyi'iiliiá)ü¿Mixálíi®ár tended to revoke Ms gift of personalty to M&sfecte. ¡j'ffibé intrddtctoí'y ^láñs^iíbBotk&íW'iMrdeeHír^aftMfaatke nflés-tótoMsat<flssftra'u@iiKÍÍmá]smg raijw'ftlidltyawMek tb’cdisp©íáfe ,®f>ÍMyi‘i®ár.tMyí jptesá essíénsíi ’ -gifDtíertesáátofcrstanteidí i oaat fo’offlqlcedá Inlbknfliñoiffliíf lete:ídfepnsétiroirg @fí Bs/ptfo^erBya In MssomgMJalswiilpliEefaies'OlpId.ifeMdjiMdirffiSBitt lo ancla aSiOSie Jesspi isdntto'^jfim4t idíffifflaltypibijtnBíJ'íeon.S'trMníg •iáieféofcSbitfí‘mHM feib^nsteiiediafesaoliKDt) of jila® wáH -toi’wMcIllife' BaíátiácBedíwteréo MgcMiijt gMms. oüneéfiioi. áMdMBád^kmBsaddittónsdrvsnpptemeñM'átaia rfeidlí, and, -iplemiáttnsfcaftf' ewáítaáii ikpfoesss#oMsf)o6\vre¿ócaiíáo)'ii aj^EoaibJmiísaiai'fe'iesiSfcilg aroHls/ jifeodo-@fe®.otítv©írkn-aiírq-hs®íégiiffli,od±cepíf toyfibecjt‘eeíse4egi¿eiit*ttii£É>ífJife) iátention •c^dliec'testáteK adJifefojffipHMmédM&Ü qdpn^sedifinjffite rffficiloisii^éeoneñaMd.emdié^coüssiktEaatovratfcMñiiÉtáafen!'-iiwíMairfcíliiíásíteéíH: fepasgji&ied jBMérybesforít ■'shoarM lbHbmaéá}téniée©nK2Ílfq.álM[ prBMsfimágófo allüthé s#iñaa.g& ¡amé; t^TgivEBíefleMJtol kkeH|;unp,ot©í spHéfeo’wMh aB.o&espjr£feiaonptotálife fHÜilxHsaparlsiof'.stíieasaníé £bstei)-taoíísj'aj3fq ovoaB yílolí towqJ exit 8 motó \ñ .g'iiw aid *519 1 Apkoif .i§ ®ag%34% i'Uw YJ rfoMw od<‘íft i§,riw,§ll.í5§#tíeid sfefc# •ambi^qig-i tgrpts :ip ftsifnii ^^^t>^b^r|P6yi^e<|3d?»a#SIÍ doi^qbyíi^mijgp^Fs hp^r Qii mc^^ííá&W^geaS^i^ eodieit.^ 9X{j sj^naoi ^{.h) si bren

'■qfefSv^P&^fias.ejsw^vMieygvNS ¿bjf ft^eíVftfit mefttMSf EuléSodoí iWÍ^X^loedia^drítMtHÍ^ií.!- %§@Stjus m jfcft ^#^-yb5|: $t0^ik© reppphfilGíl {^a]f>Á^)WS£>!?Éí3% i fifi #£ e$$i®jl isro¿ri¿^y AfiiV^'0 evSbfiíMo^4r^ttf>gdÍfee%<M't ÍS jppfe, ’ ífi mdify/)£liai*ger; 0^£al,f§^)tlplílfigffiAbWjlfe:}OTd ;%t a codicil r^ajp.rps^andi:fegii^li§;hg§(dhgr[w-jfl. r., ¿uad will ar^ppstra'e^/tog^t|i&Pf-|a|1-,,qji§}jp^flip9?li':aiQ(i. in =therAgfet ,<¿ these ¡,i?nle§sg|.^gngtruRtio^«t1.^9u|dfd^ pear in*^..gasg, ;a,t the GOidi<gl .gy$s. t©--. d^^t%-?aPpeila^)-^-| sppcjg#)f$rty /appe?f;of (iiprd iin¿li.§p , .gf ja <gqngjgl padeapilp r^iduag^iiiags^rt iM^iPE’jfií ..iOTJ ■c,ou3&;-ip Dli&(xi&6:6 qq Ivifiss^, d(^6jj.{1> /that:

lM§§&r#¥ 4^§ix%«te49#t5?rA%. ^dpg must be equally clear and explicit in order to wqjjk^ •*^191$%$' r id' f'',,L«.fvIo r iobm ‘úoá.añ lo irfuh.oñT1*

wiéígiite &?f fell Clll LllfcJ tdi5v6 d-cílfefe» ,. ill dxxiictxx .fell V Y H-iwj « v fe-l*. _l p 179 it is said- :bmr Glií 0R,1,) hull -ul- ¿MkWimf, hef/> oeíírf-Awñ'Sgfft^isÁlNllt fe >^['f88*“^n ft'^^sKcwlSíWV^MÍi laíif; esfatAwáidde^iWdrt$ M te^^í’^ffiaí-mviáe•lid^p^e^l' '|iwfe?,Í8y4‘5-í¥r life, '#itáfiaHei'iíativb-íííoiSiilg’éAtí¥eÁ!á5ndb¥^ Aifi h^fb^iid-ren and her coll3tJé9a?Krl®áftid;nfá5^%Éti(íf^f¿M^df>0Á?&''^í& :héld aidilMfl dpttliheuffegis'infeteá'dr'xjíltlígi dte^ise éff'Tthe f'theüsddieil^ií *520 posing of the ultimate fee. And where a trust fund, which by will was given to the children of A. living at a stated period, with a power of advancement in the .trustees, was by codicil ‘in lieu of such disposition’ given to the children of A. living at a different period, and in other respects the will was confirmed, it was held that the power of advancement was not revoked.”

Under this authority the expression “in lieu thereof” may or may not mean the total substitution according to the circumstances and the other language employed. iSee, also, on this point Schouler on Wills, vol. 1, par. 437; Theobald on Wills (7th Ed.), p. 750. And in Underhill on Wills, vol. 1, par. 251, it is said:

“The provisions of the later will or codicils will prevail over those of the former, but only so far as they are inconsistent and irreconcilable with them.”

A case in point is In re Estate of Chas. Sigel, Deceased, 213 Pa. 14 ; 62 Atl. 175 , 1 L. R. A. (N.S.) 397, 110 Am. St. Rep. 515 , holding as indicated by the headnotes:

“A gift once made by will is not to be cut down by a subsequent codicil, unless the intention of the testator to that effect appears clearly or by necessary implication.

“The right of an heir under a clause in a will directing the residue to be divided between testator’s heirs is not cut down by a subsequent codicil giving him a specific legacy, ‘and no more.’ ”

In that ease the codicil read:

“I give to my sister, Matilda Sigel, of Kirchheim, .Germany, Mary Schmidt, of East Orange, N. J., and Mary Schudt, of West Seneca, N. Y., each one thousand ($1,000) dollars, and to Gus Schudt, my nephew, two thousand ($2,000) dollars, and no more.”

The court by Pottbe, J., among other things, said:

“All three legatees were heirs at law of the testator, and, in the absence of the codicil, would have been en *521 titled to share in the distribution of his estate under the residuary clause of his will. . . . Appellant claims that this construction of the will is erroneous, and that, by the use of the words ‘and no more’ in the codicil, the testator expressed his intention that the amounts there given should be all that the legatees named should receive, and that the residue of his estate should he divided among his remaining heirs, to the exclusion of the three named in the codicil. In such a case as this, where a will and codicil are to he construed, the rule is well settled that they must he regarded as parts of one and the same instrument, and that the codicil is not to be allowed to vary or modify the will, unless such was the'plain and manifest intention of the testator. ... We cannot accept the view that the words ‘and no more’ in the codicil clearly and necessarily apply to the provisions of the will and cut down the gift there made. To apply them only in limitation of the amounts named in the codicil as additional gifts seems to us quite as much in line with the probable intention of the testator as the other suggestion.”

Within the spirit of the authorities mentioned, we can safely paraphrase the language of the testator in item 2 of the codicil as follows:

‘ ‘ I desire to alter item 3 of the original will by making a specific devise of real estate in place of the general devise to my son in the original will, and in lieu of the disposition made of the remainder of my real estate in item 3 I hereby devise to my son the Portwood place, consisting of about forty acres,” etc.

So understood, the codicil leaves intact the disposition which the testator made of his personalty, prevents a partial intestacy, and accomplishes the primary purpose indicated by the testator in the introductory clause of his will; that is, of making full disposition of all his earthly possessions. The personal property was clearly disposed of by the will. It is nowhere disposed of by the *522 ewákáfe, o3S3ffiat,aifiem^ dMrttoe'itesftiat©* mteMoShotildldite» c5Máií©f{jít? . To upMóM ttíef eteteatioro of;/app:ellee gMj' ímtBfcíb^rsaidí tHáfr tía# tkstatdia revoked /tíaíé ¡Mi^ositikrlo tífefi'^acwétiltto^nO'O'íí'e^fíTMd’tcfe; taiMyjisí'hoitdilieoiesuttí'wlñote-ke'pEDtexided-’-tíy amdómjpliMlí» Tliei^aíeraili rtileboi! Uoi$slrfi’étó:o¿f: isoflmf t 5 aiifeleaxogiifci catato* tfél latoidtew® b|B dnjB tabsQqutataxwtadsf''. Ttafessu thdy sliosriia'íi ^qáallyííQteaifííipiteiitíioai.&b biiHfr rmJMwis?a Jspjfauty Üi®8 J^yÜb83.aiíW«t oraiP®tíTtli'6}'tptegéii't<cas'eidii¿ii'tí> tHe>-r^éi®g^:'o©dnída®iíigSí®£>{tíi&íaí)dS.cil áiriítilwa;pí-‘fo %allw> b'0'th.í>s¡felBj®Hds4offitiit tp'-íitkMé:déíÍB'{ít:,b'ia'nd9'by»°eo')id'©iíi^'i fi'iiEf aifd}fef£e^uat'efttiie'íl6G'l'aií6'dáaiteiitioii,::of -the £festat®»ij MasmlftM, ^bsmtotpvi’!Mmdiki)y'&&yMi ¿MEq. 3-2&I diTl®s)íd@®teé reV'éráed) aMntherídaá^eí*6mtardBd\ »W . . . .loísiaoi

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Cited by 10 cases

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Cross v. O'Cavanagh21 So. 2d 473 (Miss. 1945)
In re Bronson's Estate55 P.2d 1075 (Wash. 1936) · Dissent
Hemphill v. Robinson355 So. 2d 302 (Miss. 1978)
Richmond v. Bass32 So. 2d 136 (Miss. 1947)
Paine v. Sanders135 So. 2d 188 (Miss. 1961)
Everett v. Dockery33 So. 2d 313 (Miss. 1948)

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Hemphill v. Robinson355 So. 2d 302 (Miss. 1978)
Paine v. Sanders135 So. 2d 188 (Miss. 1961)
Klein v. Gaines34 So. 2d 488 (Miss. 1948)
Everett v. Dockery33 So. 2d 313 (Miss. 1948)
Richmond v. Bass32 So. 2d 136 (Miss. 1947)
Allen v. Howard25 So. 2d 325 (Miss. 1946)

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Authorities cited 1

Depth	Case	Cited by
	Sigel's Estate, 62 A. 175 (Pa. 1905)	24

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