Thompson's Administrator v. Churchill's Estate

The opinion of the court was delivered by Ross, J. The contention is whether the survivorship clause, [376] in the will, between the children of the daughter, Delia, is to be applied to the additional gift to the same children made in the codicil of the will. The will and codicil form one instrument, and are to be construed together. The intention of the testatrix, as gathered from the whole instrument, is to control. At the time the will was made the daughter, Delia, had deceased. The testatrix, in making provision for her two children was careful and explicit in excluding the father of the children from participating in her bounty under any circumstances. She carefully provided that if one should die the survivor should take the portion of the deceased child, and that if both should die their share should go to their issue as heirs taking by inheritance, and if no such heirs should then exist it was to go to the other grandchildren. She placed the property in trust to accomplish these purposes. Nothing can be clearer than the intention of the testatrix to exclude the father of these children from participating* on any contingency, in the devise to the children, when the original will is considered by itself. By the codicil the testatrix takes a portion of the estate which would have been divided among all the grandchildren by the will, and gives it-in trust for the two grandchildren by the deceased daughter, Delia, until they arrive at the age of twenty-one years, and then orders it to be divided between them, with the condition that if-the other daughter, Maria, should die before they arrived at the age of twenty-one years, then the portion of the estate set apart for these grandchildren by the codicil should be divided equally between the surviving grandchildren. This latter was in substance the provision of the original will. If the provision of survivorship in the original will is to apply to this additional provision for the same grandchildren in the codicil, then the clearly expressed exclusion of the father in the original will, will prevail. The son deceased before the division. If the survivorship provision of the will does not apply to the additional provision for the same legatees in the codicil, the clearly expressed exclu [377] sion of the father in the will will be abrogated in regard to the bequest in the codicil. We do not think there can be any doubt of the intention of the testatrix to exclude the father absolutely from taking any benefit under or from the will. The intention when once ascertained from sthe provisions of the whole will is to prevail. There is no repugnancy created in enforcing the expressed exclusion of the father by applying the clause of survivorship in the will to the bequest in the codicil. It is a general rule that a further bequest to a legatee or legatees, by way of codicil, if expressed to be an additional bequest, is subject to the conditions, limitations and provisions of the bequest to the same legatees in the will unless making application of the conditions, limitations and provisions of the bequest in the will to the additional bequest in the codicil will create a repugnancy in some of the provisions of the whole will, as found in the will and codicil, or will in some way contravene the manifest intention of the testator, ascertained by considering the entire provisions of the will. No such repugnancy or contravention will arise by making the application in this case, but rather the application will fully carry out the intention of the testatrix in regard to the father, and a failure to make it will defeat such manifest intention. We think that the sur-vivorship clause in the will applies to the additional bequest in the codicil. The judgment of the County Court is affirmed and ordered to be certified to the Probate Court.