Jones, E. H. J.;
Swing, J., concurring; Jones, O. B., J., dissenting in separate opinion.
Plaintiff, Elizabeth C. Hammel, filed her petition for' partition of the property described therein. Her right to partition depends upon a construction of the will of Richard Gould, deceased. Richard Gould died in the year 1879, leaving a widow and six children, several of whom were minors. At the time of his death he was seized in fee of the property of which partition is sought. The widow still
[228] lives and has never remarried. Five of the children are living and are of full age.
Items I and II of the will to be construed are as follows:
“I. I hereby give, and bequeath to my beloved wife, Martha Gould, all the property, both real and personal, of which I die possessed, she to pay all just debts that I owe, and have and hold the property hereby bequeathed, so long as she continue my widow, and until my youngest child shall be of age.
“II. When the youngest child arrives at full age, or in case my wife Martha should again marry, it is my will that my real estate and whatsoever personal property may be remaining be divided between my wife and children, according to the law for the distribution of estates where no wills have been made.”'
These two items of the will are conflicting. Item I gives to the widow, Martha Gould, the right to “have and hold the property hereby bequeathed, so long as she continue my widow, and until my youngest child shall be of age.” This item standing alone is clear and gives to the widow a life estate in the property provided she does not remarry.
The verbs “have” and “hold” as used in this clause are modified by the two adverbial clauses “so long as she continues my widow” and “until my youngest child shall be of age.” These clauses are joined in the will by the conjunction “and.” There is nothing in the language to indicate that they are intended as conditions upon which she can hold the property as claimed by plaintiffs. They are not conditions but adverbs, and state how long she shall hold the property. The testator first says she shall
[229] hold it so long as she continues his “widow?’ This clause, followed by the conjunction “and,” indicates an addition to the time fixed in the previous modifying clause, and not a subtraction from or shortening of that time, so that she under this item holds the property not only so long as she continues his widow, but in case she had remarried prior to the time the youngest child became of age she would have continued, under the terms of the will, in possession of the property until that time. Had the testator transposed the adverbial clauses and said “until my youngest child shall be of age and so long as she continues my widow” it would not be claimed that her estate terminated upon the youngest child’s becoming of age. How can it be claimed that by changing the order of two adverbs the meaning- can be changed? Such a.claim is contrary to all rules of construction.
Such being the clear meaning of the language used in the first item, we find that item II is inconsistent with this provision and cannot be reconciled with it, accepting the ordinary meaning of the language there used. But so far as the widow is concerned, item I is the dispositive clause of the will. The manifest purpose of item II is to provide what shall be done with the property at the termination of the estate given to the widow by the first item.
It is the duty of the court, where provisions of a written instrument are repugnant and apparently irreconcilable, to reconcile them if possible.
The youngest child long since became of age and the widow is now old and has never remarried. Under the provisions of the first item the only restriction upon her right to a life estate in the prop
[230] erty is her remarriage, which is a very remote possibility. But according to the terms of item II, the youngest child having arrived at age and the two clauses being connected by the word “or,” the property is now to be sold and the proceeds divided according to the statutes of descent and distribution.
Since the first item states clearly the time during which Mrs. Gould shall continue to hold this real estate, and since in our view the purpose of the second item is primarily to provide what shall be done with the estate when this time arrives, it is the duty of the court to so construe the second item that it will not defeat the devise made to the widow in the first item. In other words, where same can be done, it is the duty of the court to reconcile two conflicting portions of a will. We find that we can so reconcile these provisions by substituting in the first line of the second item the word “and” for “or” so that it will read “when the youngest child arrives at full age, and in case my wife Martha should again marry, it is my will,” etc. This makes the two provisions of the will entirely consistent and carries out, as we think, the intention of the testator. It certainly carries out the intention as clearly expressed in the first item, as before stated, and its language should control in the determination of the rights of the widow, because it is in that item the testator provides for her.
There is abundant authority for the substitution of the word “and” in order that the language of the two parts may be reconciled. Ely v. Ely’s Exrs., 20 N. J. Eq., 43, 48; Courier v. Stagg, 27 N. J. Eq., 305; East v. Garrett, 84 Va., 523, 9 S. E.
[231] Rep., 1112, 1117; Sayward, v. Sayward, 7 Me., 210, 216.
The petition is dismissed.
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