Devise and Legacy, Construction. On an appeal from a decree as to the interpretation of a will and codicil, it appeared, that the original will, after various gifts to other persons, gave to the appellant an interest in certain real estate and $5,000 in money. After other gifts, the rest and residue of the estate was given to four persons, of whom the appellant was one, in equal shares. The codicil was made four years later. It recited that by his original will the testator had given the appellant one fourth of the residue and the sum of $5,000, and, revoking this gift, gave to trustees one fifth of the residue and $5,000, to pay the income to the appellant during her life and at her death to distribute the trust property as therein provided. Then, after other changes, the testator revoked the residuary clause in his original will, which divided the residue among four persons of whom the appellant was one, and instead divided it among five persons of whom the appellant was one. The appellant contended, that she was entitled, first to a life estate in one fifth of the residue, and then to one fifth of the remaining residue outright. Held, that she was not so entitled; that the provisions of the will and the two provisions of the codicil in regard to the appellant must be taken together, and so construed there was only one residue, one fifth of which was to go to trustees for the benefit of the appellant during her life.
HAMMOND, J.
The original will contained various gifts. In the twelfth clause there is a gift to the appellant Jennie T. Dunbar of an interest in certain real estate, and of some household furniture "and five thousand dollars in money." In the sixteenth clause all the rest and residue of the estate real and personal is given to four persons, one of whom is the appellant, in equal shares. This will is dated August 23, 1892.
Between three and four years afterwards, the testator concluded to make some changes in the provisions of the original will, modifying some of the gifts, revoking others, and adding some new ones; and he sat down to make the codicil dated January 2, 1896. He first considered the case of the appellant. He saw the provisions he had made for her in the twelfth and sixteenth clauses of his will as above recited, and he proposed to change them. In the first clause of the codicil he recites that by his original will he had given to the appellant "one fourth part of the rest and residue of my estate, after the payment of the bequests specified in my said will, and the sum of five thousand dollars," and then he revokes this gift and gives to the trustees "one fifth part of the rest and residue of my estate and the said sum of five thousand dollars," to pay the income thereof to her during her life, and at her decease to divide the trust property as therein particularly set forth.
He then proceeds with the changes in the provisions as to other persons, and at last, by the ninth clause in the codicil, he revokes the sixteenth clause in his original will, by which he had designated the appellant and three other persons to be his residuary devisees, and gives unto the said four persons and one Wilbur all the rest and residue of his estate, "both real and personal, to be divided equally among them."
The appellant contends that as the result of the will and codicil she is entitled to one fifth part absolutely and in fee of all that passes by the ninth section of the codicil, and that this section disposes only of that part of the estate which will remain after all the devises and legacies, including the one fifth mentioned in the first clause of the codicil, have been paid.
This position is unsound. The will and codicil are to be taken together. The rest and residue named in the first clause of the codicil is the same as that named in the ninth clause, and means the remainder after the specific gifts have been satisfied. Both clauses are to be considered together, and the true interpretation of the will and codicil is that the appellant is one of the five residuary devisees among whom the property is to be equally divided, but that her share is to be placed in trust as provided in the first clause of the codicil.
Decree affirmed.