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during the period it would have been gone he had done, and the defect is produced by the and the saving of the incidental expenses. omission of words, and it is certain beyond reaIn other words, a greater margin or profitted, the court may supply them by intendment

sonable doubt what particular words are omitby the alleged breach of the contract than and construe the will as if such words had been he could have made had it been performed. inserted by testator. That a judgment of this kind cannot be sus- [Ed. Nóte.-For other cases, see Wills, Cent. tained needs no citation of authorities. The Dig. $ 981; Dec. Dig. 8 462.*]

* instructions to the jury upon this phase of 7. WILLS (8 462*)—CONSTRUCTION-SUPPLYthe case were erroneous.

ING OMITTED WORDS.

Testator gave general and specific legacies, For the reasons stated, the judgment is

declared that he had executed a deed to a son reversed and the cause remanded.

which deed reserved a life estate in testator Reversed.

and wife, and then gave to his wife "all” his

real and personal property, and provided that STEELE, C. J., and GABBERT, J., con- if she predeceased him the "said property"

should pass to the son. The land conveyed to cur.

the son was testator's own land and had a net rental value of $600 a month. The property disposed of by the will, exclusive of the reserva

tion in the deed, was between $27,000 and $32,BACON et al. v. NICHOLS et al.

000. Held, that the gift to the wife was of the

property not disposed of under the previous por(Supreme Court of Colorado. Dec. 6, 1909.) | tions of the will, as the word "residue," or 1. WILLS ($ 439*) — CONSTRUCTION — INTEN- some similar word, was inadvertently omitted TION OF TESTATOR.

from the clause containing the gift to the wife. In the construction of wills, the intention

[Ed. Note. For other cases, see Wills, Cent. of the testator governs, and rules for determin- Dig. $ 981; Dec. Dig. $ 462.*í ing the intention are but advisory.

Gabbert and Campbell, JJ., dissenting. [Ed. Note.-For other cases, see Wills, Cent. Dig. $8 952, 957; Dec. Dig. § 439.*]

En Banc. Appeal from District Court, El 2. WILLS (8 477*)–CONSTRUCTION – INSTRUMENTS REFERRED TO IN AID OF CONSTRUC- Paso County; Louis W. Cunningham, Judge. TION.

Petition by Mary A. Bacon and another Where a will refers to a deed of real es- for the construction of the will of John H. tate as explanatory and as a reason for disposi- Bacon, deceased, against Mrs. Eloise Powell tions made in the will, the deed may be read into the will as a part'thereof to ascertain the Nichols and other beneficiaries under the intention of testator.

will. From a judgment of the district court [Ed. Note. For other cases, see Wills, Cent. affirming a judgment of the county court, peDig. $ 998; Dec. Dig. § 477.*]

titioners appeal. Affirmed. 3. WILLS (8 477*)-CONSTRUCTION - INSTRU

J. C. Helm and J. R. Dixon, for appellants. MENTS REFERRED TO IN AID OF CONSTRUC

Chinn and Strickler, for appellees. TION.

Where a will making general and specific bequests referred to a deed executed by testator and his wife conveying real estate to a son, but

HILL, J. John H. Bacon executed a will, reserving a life estate in himself and wife, and which, in the disposition of his property, was provided that the wife should have all his real as follows: and personal property, the deed was admissible

"First. I give and bequeath to Mrs. Eloise to throw light on the property which the testator thought he was disposing of.

Powell Nichols, the only child of my sister [Ed. Note.--For other cases, see Wills, Cent. Catherine M. Powell, the sum of five thouDig. $ 998; Dec. Dig. § 477.*]

sand dollars-$5,000.00. 4. WILLS (8 471*)-CONSTRUCTION-IRRECON- "Second. I give and bequeath to Frank CILABLE LEGACIES.

E. Hodgkin, the only child of my deceased The rule that where a general legacy is fol- sister Mary E. Hodgkin, the sum of five lowed by another general legacy of the same

thousand dollars—$5,000.00. property, so that an irreconcilable repugnancy arises, the latter of the inconsistent provisions "Third. I give and bequeath to Katie Bamust prevail, is merely technical, and is only con McKinney, the only child of my deceased adopted where all

other rules fail to show the brother, Frederick W. Bacon, the sum of five intention of the testator, and testator's intention that the latter clause should limit the earli- thousand dollars—$5,000.00. er one must clearly appear.

"Fourth. I give and bequeath to Charles [Ed. Note.-For other cases, see Wills, Cent. A. McKinney, husband of my niece Kate B. Dig. § 989; Dec. Dig. § 471.*]

McKinney, my open faced gold watch and 5. WILLS ( 470*)-CONSTRUCTION-CONSTRUC- chain. TION OF INSTRUMENT AS A WHOLE.

"Fifth. I give and bequeath to my sister The courts in the interpretation of wills will look to the whole instrument and construe Aurelia I. Magill, the sum of twenty-five doleach part with relation to the language used | lars a month during her life. in other parts.

“Sixth. I give and bequeath to Mrs. Au[Ed. Note. For other cases, see Wills, Cent. gusta Bacon, widow of my deceased brother Dig. $ 988; Dec. Dig. § 470.*]

Frederick, the sum of twelve dollars and 6. WILLS (8 462*)—CONSTRUCTION – SUPPLY- fifty cents a month during her lifetime.

– ING OMITTED WORDS. Where it is evident that testator has not

“Seventh. I give and bequeath to Mary expressed himself as he intended and supposed | Weaver, (daughter of S. P. Weaver), who was named after my wife, the sum of one rather than our masters." 1 Redfield on hundred dollars.

Wills, 420. For, as stated in the case of Ely"Eighth. I give and bequeath to Hobart F. ton Land Co. v. McElrath, 53 Fed. 763, 3 C. Blythe, (son of B. F. Blythe, of Diller, Ne- C. A. 649, "It is in many cases impossible to braska), the sum of one hundred dollars. determine, beyond the possibility of a doubt,

"Ninth. Having made a warrantee deed to what the intention of the testator was; and my son William Henry Bacon, for lots sev- all that can be done is to ascertain, from all enteen (17), eighteen (18), nineteen (19) and the facts and circumstances surrounding him, twenty (20) in block eighty-one (81) situat- his property, and those to whom it is left, ed in Colo. Springs, Colo. I also give and and the language of the will, what probably bequeath to my said son, my gold time was intended;

* that has been the watch and all my diamonds.

controlling principle." "Tenth. I give to my only and beloved The first question necessary to be deterwife, Mary A. Bacon, all my real estate of mined is, was said clause in said deed adwhatever kind I may have, also all my per- missible for any purpose? We answer in the sonal property of every description, all mon- affirmative in a case of this kind, where there ies, notes, mortgages, bonds or stocks, and is a contention over the disposition of propshe is to have the free use, and restriction, erty claimed, under different paragraphs of possession, control and benefits of the same. a will, which, when taken separately, create

“Eleventh. Should my wife die before I an apparent irreconcilable repugnancy bedo, then the said property will become the tween them. The will refers to a deed (as property of my son, William Henry Bacon.” explanatory in part and as a reason for the

The testator nominated his wife and son other dispositions made in the will) transas the executors of the will. Within a few ferring certain property, and, if necessary, it months after the will was executed Mr. Ba- might be read into the will as a part thereof. con died. The will was duly admitted to A will may be construed in connection with probate. Thereafter, the wife and son filed another instrument in writing to which it a petition in the county court of El Paso refers to aid in ascertaining the intention of county, for a construction of the will, where the testator. Jackson v. Babcock, 12 Johns.

. by it was sought to have determined the (N. Y.) 389; Capp v. Brunner, 132 Pa. 417, 20 rights of the respective legatees and devisees Atl. 683; Ford v. Ford, 70 Wis. 19, 33 N. W. thereunder. To this proceeding the other 188, 5 Am. St. Rep. 117; Hall et al. v. Hill, beneficiaries were made parties. The county McLean & Co., 6 La. Ann. 745. We think it court held that it was not the intention of admissible for the further reason as throwthe deceased, by paragraph 10 of his will, to ing light upon the property which the testarevoke or set aside any of the bequests men- tor may have thought he was disposing of, or tioned in the preceding paragraphs, and attempting to dispose of, as held by this that by paragraph 10 Mrs. Bacon was enti- court in the case of Nusly et al. v. Curtis et tled to receive only that portion of the es- al., 36 Colo. 464, 85 Pac. 816, 7 L. R. A. (X. tate of the testator remaining after the pay-S.) 592, 118 Am. St. Rep. 113. "The question ment of the bequests set out in the preced- is one of intent, to be gathered from the laning paragraphs of his will. From this judg-guage used in creating it, in the light of the ment the petitioners appealed to the district circumstances of the testator and the propcourt, where a similar judgment was entered, erty which he is disposing of in his will." from which this appeal is taken, and two In this case it is shown that the value of questions are urged for determination: the property disposed of was between $27,000 "First. Is there an irreconcilable repugnan- and $32,000, exclusive of any reference to the cy between paragraph ten of the will and reservation contained in this deed, which the preceding paragraphs thereof, and, if was a deed executed by John H. Bacon and so, what is the effect? Incidental to which Mary A. Bacon, his wife, to their son, Wilis the question: Was said clause in said liam H. Bacon, about six months prior to the deed admissible for any purpose? Second. death of the testator, for the property therein Is the will void for uncertainty?"

named of the conceded value of $100,000, In the construction of all wills the inten- with a rental value of at least $600 per tion of the testator is the governing principle month over and above the cost of keeping -the point to which all explanation should the same in repair. The clause referred to be directed. The circumstances of each in- in this deed reads as follows: "The said dividual case vary so much from those of grantors expressly reserve the possession, most other cases that it is difficult to deter-use and rents and profits of said described mine from the explanation or construction premises for and during the natural lives of of one will what would control in the con- the said grantors and for and during the struction of another; and although there natural life of the survivor (of either of may be general principles tending to assist them)." While the deed was signed by both the courts in determining the intention of Mr. and Mrs. Bacon, it is stipulated that the testator, yet they can be but advisory, Mrs. Bacon had no interest in the property and not controlling. Such rules are to be prior to the execution of the deed. The resused as helps toward reaching the intention ervation in the deed was evidently in the tion of his will, and was properly admitted, "It cannot at this day be argued that beas having a bearing upon the question of the cause the testator uses in one part of his properties the testator may have understood will words having a clear meaning in law, he was disposing of under the provisions of and in another part other words inconsistent his will, in which case, in the construction with the former, that the first words are to of ambiguous or conflicting provisions, the be canceled or overthrown.” But conceding situation of the parties may be very properly the rule is as contended for by counsel for taken into view. Schouler on Wills, $$ 579_ appellants (where there is an irreconcilable 580; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; repugnancy between two clauses of a will Nichols v. Boswell et al., 103 Mo. 151, 15 s. the latter clause must prevail as being the W. 343; Day v. Wallace, 144 Ill. 256, 33 N. latest expression of the testator's intention), E. 185, 36 Am. St. Rep. 424; Hunt v. White, is there such an irreconcilable repugnancy in 24 Tex. 613.

this will, when considered as a whole, in the The principal contention is that as there light of the circumstances of the testator and is no demonstrative or specific legacies men- the property which he is disposing of in his tioned other than in paragraphs 4 and 9 will, as should call for the adoption of this (about which it is admitted there is no dis- rule, when other well-known rules are appute), and as the other legacies are general, plied with a view of ascertaining the real inin that no specific property is charged with 'tention of the testator? In this case it is not their payment and no particular fund is a question of an irreconcilable repugnancy pointed out for their satisfaction, where a between two clauses of a will and therefore general legacy is followed by a general lega- the latter must prevail, but the question here cy or bequest of the testator for the same is whether the language used in paragraph property, or part of it, then an invincible or 10 is to be accepted in its literal sense so as irreconcilable repugnancy arises, in which to defeat the objects sought to be accomplishcase it is claimed that the latter of two in- ed in the nine paragraphs preceding it-in consistent provisions must prevail as evi- fact, to defeat all intentions expressed in the dence of the final intention of the testator. remainder of the will—the only other paraThis contention seems to have the support of graph containing any devise being the elevthe great weight of authority, but it is con- enth, contingent upon the death of the wife. ceded the rule is technical, and by some au- In other words, by the language used in the thorities has been designated a harsh one, and tenth paragraph, when read in the light of is only adopted where all other rules fail in the surrounding circumstances, was it the inarriving at the intention of the testator; be- tention of the testator, by this paragraph ing upon the theory that the last provision alone, to defeat the objects of all the precedcan be considered as evidence of the final ing ones, and thereby give to his wife all his intent of the testator, but this rule has not property, both real and personal? been universally adopted. For instance, in In the interpretation of wills, courts will the case of Day v. Wallace, 144 Ill. 256, 33 N. look to the whole instrument, and construe E. 185, 36 Am. St. Rep. 424, it was held that each part with relation to the language used where a testator in the several parts of his in other parts. Lane v. Vick, 44 U. S. 464, will devised the same land to different per- 11 L. Ed. 681; Moore v. Dudley, 2 Stew. sons in fee, and there is nothing in the will(Ala.) 170; Foxall v. McKenney, 3 Cranch, to show that he intended the last-named dev-C. C. 206, Fed. Cas. No. 5,016; Butler v. Huesisee to take to the exclusion of the first, the tis, 68 Ill. 594, 18 Am. Rep. 589; Jackson v. two devisees will take the land concurrently Hoover, 26 Ind. 511; Grimes' Ex'rs v. Haras tenants in common, and in which case it mon, 35 Ind. 198, 9 Am. Rep. 690; Kilgore v. was held that there was not such a clear and Kilgore, 127 Ind. 276, 26 N. E. 56; Oxley v. irreconcilable repugnancy between the two clay, 7 Rob. (La.) 425; Bowly's Lessee v. devises as to make the later one abrogate the Lammot, 3 Har. & J. (Md.) 4; Parker v. Wasprior one; and, after conceding there was a ley's Ex'r, 9 Grat. (Va.) 477. And while, if conflict of authorities, the court states: "Tak- true, that where there is an irreconcilable ing into consideration all the facts of this repugnancy between two clauses of the will case proper to be considered, it is manifest the latter clause must prevail as being the that whatever presumption might otherwise latest expression of the testator's intention, arise in favor of the latter clause expressing it is a rule of equal force that the testator's that intention, rather than the former, is re- intention that the latter clause should thus butted."

limit the earlier ones should clearly appear. In the case of Field v. Eaton, 16 N. C. 284, Temple v. Sammis, 97 N. Y. 526. The auwhere a slave by name “Sal” was, by the thorities which sustain this rule hold that it testator, first given to his son, and he again is applicable only where the two provisions devises her in the same way to his daughter, are totally inconsistent and the real intention it was held that the legatees took in moieties, cannot be ascertained. Covenhoven et al. v. specifically repudiating the rule that the lat- Shuler et al., 2 Paige (N. Y.) 122, 21 Am. Dec. ter clause should be taken as the latest inten- 73. In Goddard v. Whitney, 140 Mass. 98, 3 tion of the testator. To the same effect is N. E. 34, in passing upon a somewhat simMcGuire v. Evans, 40 N. C. 269. In Jesson v. ilar question, it is stated: Where a testa.

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vealed an intention, the language of individ- I give full force and effect to every part thereual clauses is always to be construed with of. This, it is conceded in all cases, should reference to that intention, even if, in anoth- be done if it can, and if from the whole will er instance or connection, it might properly we can say it is necessary in order to express receive a different construction.” In the case the real intent of the testator, are we justiof Claflin v. Ashton, 128 Mass. 443, concern- fied in supplying the words? It is an estabing this question of inconsistent repugnan- lished rule in the construction of wills that cies, the court states: “The two articles, where it is evident the testator has not ex

, considered separately, are inconsistent and pressed himself as he intended and supposed repugnant. They plainly refer to the same he had done, and the defect is produced by property, and, if construed literally and inde- the omission of some word or words, and pendently, each directs a disposition of it in- where it is certain beyond reasonable doubt consistent with the other. But if the two what particular words were thus omitted, are brought together and considered as parts they may be supplied by intendment, and the of one scheme of disposition of the property, will read and construed as if these words the result will be the same as if they both had been written in the place or places where formed parts of one article of the will, and they were intended. In such case, words the repugnancy and difficulty of construction and limitations may be transposed, supplied, will not appear to be so great. The will may and rejected. Howerton v. Henderson, 88 N. thus fairly be construed to read

C. 597; Redfield on Wills, vol. 1, p. 458; WilRead in this form, the latter clause restricts liams on Executors, vol. 2, p. 1162; Colton and qualifies * We are of the opin- v. Colton, 127 U. S. 300, 8 Sup. Ct. 1164, 32 L. ion that this transposition and construction Ed. 138; Hellerman's Appeal, 115 Pa. 120, 8 express and effectuate the intention of the Atl. 768. As stated by the Supreme Court of testator. * * * It is to be presumed that North Carolina in Dew et al. v. Barnes, the testator intended that all the clauses of Adm'r, et al., 54 N. C. 151: "No rule of law his will should have some operation and ef-l is better settled or more generally known fect. It is not to be supposed that the pur-than that, in the construction of a will, the pose of the ninth article was to entirely re-intention of the testator, apparent in the will voke and annul the devise to the heirs at law itself, must govern, and that in order to efof his children in the fifth article. Such a fectuate that intention, as collected from the purpose, if entertained, would naturally have context, words may, when necessary, be supbeen expressed in direct language.” In the case of Mersman v. Mersman, 136 Mo. 257, ed by Redfield on the Law of Wills, vol. 1, p.

” case of Mersman v. Mersman, 136 Mo. 257. plied, transposed or changed.” And, as stat37 S. W. 912, involving the construction to be ed by Redfield on the Law of Wills, vol. 1, p.

459: "The fact that different persons may placed upon the words in one paragraph of entertain different opinions in regard to a will, it is well stated: “One rule of great which of two or more words, of nearly the force in solving the difficulties of interpreta- which of two or more words, of nearly the tion is that all parts of an instrument should same import, was omitted in the will, forms be read so that they shall stand rather than no objection to supplying the omission." Redthat any part should perish by construction. field on the Law of Wills, vol. 1, p. 452, states

: And, to give effect to all parts, the general further: “And it was determined at an early words of one part may sometimes require to day that repugnant words in a will, in whatbe limited in their application.” In Updike ever portion of the instrument they appeared, v. Thompkins et al., 100 111. 406, in placing and which contravened the evident general

Ill a proper construction upon a will it was stat- purpose and intention of the testator, in the ed that “particular expressions yield to the other provisions of the will, might be rejected general purpose.” In the case of Price v.

or transposed.” In volume 2, Williams on Cole's Ex'x et als., 83 Va. 343, 2 S. E. 200, it Executors, p. 1155, it is stated: “The conwas held that the general intention of the struction of the will is to be made upon the testator gathered from the whole will must entire instrument, and not merely upon disprevail over the rule “that of two repugnant jointed parts of it; and consequently all its clauses the last must prevail."

parts are to be construed with reference to That the language used in paragraph 10 each other. * Hence, general words is in conflict with the disposition of the prop- in one part of a will may be restrained in erties in the nine paragraphs preceding it is cases where it can be collected from any othapparent. When standing alone, it is unam- er part of the will that the testator did not biguous and needs no interpretation. When mean to use them in their general sense.” read in connection with the other portions

A similar case to the one under consideraof the will, was it the intention of the testa- tion, involving the application of both rules tor to give to it a literal construction, or was contended for here, is that of Nichols v. Bosit intended that it should be limited in its well et al., 103 Mo. 151, 15 S. W. 343, whereapplication and in such case yield to the

yield to the in the irreconcilable repugnancy was in the general purpose, or did he omit the insertion second and third paragraphs of the will. of words which would have clearly expressed the second gave to a granddaughter, Minerva his intent? Such words, when inserted, or Nichols, to a daughter, Mary, and also to an

, this paragraph read as though they were in other daughter, Amanda Hudson, "all of my serted, harmonize the entire instrument,

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suages, lands, tenements * * * to be di- consideration, and, in order to convey the vided equally between each of the above-nam- evident intention of the testator as apparent ed * * * so that each may receive one from the whole will, these or similar words equal portion, to have and to hold, to them may be supplied and read into it.

. and their heirs, forever.” The third para- In the case of Aulick v. Wallace, etc., 75 graph states, “Third. I further will that in Ky. 531, the court supplied the words "or case the above-named Minerva Nichols and when she dies," so as to construe the instruAmanda Hudson, or either of them, should be ment in harmony with the intent of the testadead and not now living, then all of my estate, tor, in which opinion the court states: "In both real and personal, I give and devise and making this devise he evidently omitted the bequeath to my daughter Mary,

to words 'when she dies,' which, when supplied, have and to hold, to her and her heirs, for- make the will read

*" In which ever.” The daughter Amanda Hudson was opinion it is further stated: “Eminent judead at the time of the execution of the will, rists differ in the application of these rules and it was claimed there, as it is here, that in the construction of wills, and cases will be there was an irreconcilable repugnancy be found holding a doctrine opposed to the printween clauses 2 and 3, and that upon account ciple settled in this case; but, as said by thereof the provisions of the latter should Redfield in his able treatise on the Law of prevail, which, by its plain language gave to Wills, "Those who lay aside a too strict adthe daughter Mary all of the estate, both real herence to technicalities, while they assume and personal, it being a general disposition of more responsibility, will, in the greater numthe entire estate. This contention was not ber of cases, effect the more perfect justice. accepted by the court, and, in order to arrive It will more generally appear in the end that at the real intention of the testator, the they were only acting upon the more perfect words "undisposed of" were supplied and comprehension of an imperfectly developed read into the third paragraph of the will, in principle, which in the next age, perhaps, bewhich opinion Macfarlane, J., states: “The comes so familiar as to excite no surprise.' conclusion is that the testator intended that In Finlay V. King's Lessee, 3 Pet. 346, 7 his daughter Mary should take, under the L. Ed. 701 (8 Cur. Dec. 444), in commenting third clause of the will, the estate previously upon the construction to be given certain devised, respectively, to plaintiff and his words in a will, inconsistent with its other daughter Amanda, only in case the devisee provisions, the Supreme Court states: "These of such estate should be dead at the time the words certainly import that the whole eswill was executed, and not otherwise; and tate should vest in possession at the same that he never intended, if one of said devi- time, and mark with precision when that sees should be dead, that his daughter Mary time shall be. This express provision can should take the estate of both.

If be controlled only by a strong and manifest this was the evident intention of the testator, intent, to be collected from the whole will. as apparent from the whole will, then, in But the intent of the testator is the cardinal order to effectuate that intention, the words rule in the construction of wills; and if ‘undisposed of? may be supplied so as to make that intent can be clearly perceived, and is the third clause of the instrument read, 'then not contrary to some positive rule of law, all my estate, both real and personal, undis- it must prevail; although, in giving effect posed of, I give, devise and bequeath to my to it, some words should be rejected, or so daughter Mary. This supplying of words restrained in their application, as materially to effectuate the manifest intention is allow to change the literal meaning of the parable under the well-known rule that in the ticular sentence." construction of a will the intention of the In the case of Kane v. Astor's Executors, testator, apparent in the will itself, must 5 Sandf. 533 (New York superior court), upgovern, and that in order to effectuate that on this same subject it was stated: "It is intention, as collected from the context, words undoubtedly true that, in construing a will, may, when necessary, be supplied, transposed we are bound to give full effect to every or changed. *

And it is no objection part of it, and to single words as well as to to supplying the omission that different per- sentences and paragraphs. But it is a parasons may differ in regard to which of two or mount principle that the court shall carry more words, of similar significance, will more out the general intent of the testator. And appropriately supply the omissions.

*' where a particular word or sentence is reThe proof, from the whole will and from the pugnant to the general intent and design of condition of the parties, their relation to each the whole will, or tends to render it inconother, and the character of the property, is gruous or insensible, such word or sentence manifest and convincing that these or similar must give way, rather than sacrifice the words were inadvertently omitted from the whole scheme of disposition disclosed by will."

the general tenor of the instrument.” We think the reasoning in the foregoing In the case of Roseboom v. Roseboom et case sound and applicable here, and that these al., 81 N. Y. 356, involving a somewhat simisame words, "undisposed of," "the remain- lar contention wherein it is claimed at the der," "the residue,” or similar words, were death of the wife the testator bequeaths "ail

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