gether as parts of one instrument in determining whether the omission to provide for the children was intentional within the seventeenth section of the act of 1850 concerning wills, which declares that if the testator omit to provide in his will for his children, they shall inherit the same share in his estate as if he had died intestate, unless it shall appear that such omission was intentional. Ibid.

See, also, Howland v. Union Theolog. Seminary, 5 N. Y. 193; Jauncy v. Attorney-General, 3 Griff. 308; Stme v. Evans, 2 Atkins, 86.

ing various

SEC. 1321. All the parts of a will are to be construed in Harmonizrelation to each other, and so as, if possible, to form one parts. consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail.

See Arcularius v. Geisenhammer, 3 Bradf. 64, cited under next section.

If a word in a will is repugnant to the clear intention manifested in other parts of the instrument, it may be regarded as surplusage, or restricted in its application. Estate of Wood, 36 Cal. 75.

See, also, Egerton v. Conklin, 25 Wend. 224; Ford v. Ford, 6 Hare, 492; Covenhuren v. Shuler, 2 Paige, 130; Carter v. Huut, 40 Barb. 391; Mutter's Estate, 38 Penn. St. 314; Sweet v. Chase, 2 N. Y. 79; Trustees Theol. Seminary v. Kellogg, 16 N. Y. 88; Campbell v. Rawdon, 18 N. Y. 414.

other

SEC. 1322. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of, or reference to, its contents in another part of the will.

A bequest for life in trust, is not repugnant to another and further bequest absolutely. A gift in remainder to a life tenant of a share in a fund in which he has a life interest, is not so contradictory and incongruous as to be incapable of being carried out. A certain and definite gift is not rendered nugatory by a subsequent provision of uncertain signification. It is a settled principle of construction, not to disturb any prior gift any further than is absolutely necessary to give effect to a posterior qualifying disposition. A legacy may be made payable after the legatee's death. Effect should be given to every part of a will, and no portion is to be disregarded, unless entirely repugnant to another portion. The intention is to be gathered from the entire instrument, and if several clauses can be harmonized, none of them will be rejected. Where the terms of a will are not ambiguous, resort cannot be had to extrinsic evidence. Such evidence may be received to determine whether the words of the will, with reference to the facts, admit of their being construed in a primary sense, but that being determined, and no ambiguity existing, the court cannot speculate about the testator's intention, in opposition to his will as written. Arcularius v. Geisenhammer, 3 Bradf. 75; affirmed in 25 Barb. 403.

The construction of wills is not affected by punctuation. The gift of a remainder "upon" the decease of the life tenant is not conditional, but

In what case devise not affected.

When am

biguous or

vested, and does not therefore lapse by the death of the legatee before the contingency has occurred. Ibid.

The testator left his children legacies of $5,000 each, some absolutely, and some in trust, and after directing the investment of one third of the proceeds of his real and personal estate for the use of his wife during life, disposed of the residue as follows: "I give, devise and bequeath, all the rest, residue and remainder of my estate to my children by my present wife Phebe, together with the share of the estate set apart for my said wife during her natural life, upon her decease equally to be divided among them:” Held, that J. S., one of the said chi dren, was equally entitled to share in the residue with the others, notwithstanding his legacy of $5,000, was placed in trust during his life, and by a codicil was directed, on his decease without issue, to fall into the residue. Ibid.

See, also, Thompson v. Whitlock, 5 Jur. (N. S.) 991; Cole v. Wade, 16 Ves. 46; Greenwood v. Sutcliffe, 14 C. B. 226; Kiven v. Oldfield, 4 De Gex & J. 30; Hillersdon v. Lowe, 2 Hare, 355; Mortimer v. Hartley, 3 De G. & Sm. 332.

SEC. 1323. Where the meaning of any part of a will is doubtful. ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will. See Ilyatt v. Pugsley, 23 Barb. 285; Marsh v. Hague, 1 Edw. Ch. 174.

Words taken in ordinary sense.

Words to re

erative con

SEC. 1324. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained.

See 1 Redf. on Wills, 430 to 435, and cases cited there.

SEC. 1325. The words of a will are to receive an interceive an op- pretation which will give to every expression some effect, struction. rather than one which will render any of the expressions inoperative.

Intestacy to

be avoided.

Effect of technical words.

See 1 Redf. on Wills, 430, et seq., and cases cited there.

SEC. 1326. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.

See Booth v. Booth, 4 Ves. 407.

SEC. 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention.

See 1 Redf. on Wills, 429-435, and cases cited there.

A clearly manifested intention in one part of a will ought not to yield to a provision of doubtful meaning; and technical terms are presumed to have been employed by the testator in their legal sense, unless the context plainly controls them. Corrigan v. Kiernan, 1 Bradf. 208.

The usual acceptation of language may be restrained by provisions indicating a contrary intention. Words ordinarily construed as raising a ten ney in common, will be interpreted as establishing a joint tenancy, if terms of a

gift overshow an intention to create a joint tenancy. The force of technical words is always controlled by provisions showing that a technical interpretation would militate against the design of the testator. Sherwood v. Sherwood, 3 Bradf. 230.

SEC. 1328. Technical words are not necessary to give Technical effect to any species of disposition by a will.

See Jackson v. Luquere, 5 Cow. 228; and Parks v. Parks, 9 Paige, 117.

words not necessary.

words not

SEC. 1329. The term "heirs," or other words of inherit- Certain tance, are not requisite to devise a fee, and a devise of real necessary to property passes all the estate of the testator, unless otherwise limited.

pass a fee.

devise, how

SEC. 1330. Real or personal property embraced in a power Power to to devise, passes by a will purporting to devise all the real executed by or personal property of the testator. (a) See Amory v. Meredith, 7 Allen, 397.

Wills devising and bequeathing all the real and personal estate of the testator operate upon lands and personalty embraced in a testamentary power, although the power be not recited or referred to. Van Wert v. Benedict, 1

Bradf. 113.

#

#

A devise was, "to my daughters, Christiana and Phoebe, the house I now live in and twenty acres of land. The twenty acres that I have willed to my daughters to have during their lifetime, at their death to have the privilege to will to my daughter Sarah Kerr's children, or my son Thomas Verner's children, just as they see proper:" Held, that the daughters took an estate for their joint lives, in such wise that the share of the one first deceased should enure on her death to the benefit of the survivor. Christiana died intestate, and Phoebe devised the twenty acres to a son of Thomas: Held, that the power was well executed. Kerr v. Verner, 16 P. F. Smith's (Penn.) Rep. 214.

terms of will.

bequest of

all personal

SEC. 1331. A devise or bequest of all the testator's real Devise or or personal property, in express terms, or in any other all real or terms denoting his intent to dispose of all his real or per- property, or sonal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. See Mc Naughten v. McNaughten, 41 Barb. 50.

Compare sections 1274, 1317, 1318, ante, and cases cited there.

(a) NOTE.-(From Civil Code.)-SEC. 901. Where a power to dispose of real property is confined to a disposition by devise or will, the instrument of execution must be a will duly executed according to the provisions of the title on wills.

SEC. 902. Where a power is confined to a disposition by grant, it cannot be executed by will, even though the disposition is not intended to take effect until after the death of the person executing the power.

SEC. 937. Where a power in trust is created by will, and the testator has omitted to designate, expressly or by necessary implication, by whom the power is to be executed, its execution devolves on the district court.

both.

"relatives,**

"descend

Page 314.

1332. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will.

1333. A bequest of the residue of the testator's personal property, passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will.

"issues" tions," "nearest relations," "representatives," "legal repre"ants," etc. sentatives" or "personal representatives," or "family,” "issue," "descendants," "nearest," or "next of kin" of any person, without other words of qualification, and when the terms are used as words of donation and not of limitation, vests the property in those who would be entitled to succeed to the property of such persons, according to the provisions of the title on Succession, in this code.

See next section and compare with note thereunder.

Rule in "Shelley's case."-If by the terms of a will the estate is devised to "A." to have and to hold during his lifetime and then to go to his heirs; if the word "heirs" is used in a general sense to indicate those to whom by law the property would pass by descent, and not in a special or restrictive sense to designate certain particular individuals, the whole estate vests in "A." in fee simple, notwithstanding the language of the will limits him to a life estate. Norris v. Hensley, 27 Cal. 442.

The following was the language of the bequest in the will: "I bequeath to Dr. Van Canaghen one third of my property on California street, and one third to my son and one third to my brother, each and all of them to have and to hold their lifetime, and then to go to their heirs and assigns. But never to sell:" Held, that by the terms of the will, the three devisees named took a fee simple estate in the property devised. Ibid.

See, also, authorities cited in said case, and 4 Kent's Com. 216, et seq. The word "issue" under the rule.-The word issue in a will means prima facie the same thing as "heirs of the body." The rule in Shelley's case is not a rule of construction, not a means of ascertaining the intention of the testator-it presupposes that intention to be ascertained. Kleppner v. Laverty, Sup. Ct. Penn. Nov. 1871.

A devise to A. for life-upon the happening of her death to her lawful issue, if she should leave any-in default of such issue over, unless on the face of the will it be sufficiently shown that the word "issue" was intended to have a less extended meaning than its prima facie signification, vests an estate tail in A., which by operation of the act of April 27, 1855, becomes an estate in fee simple, the will having been made since the passage of the act.

When the rule is inapplicable.-A devise ran "to M. and her children." Does the estate rest solely in M.?: Held, that the rule in Shelley's case is not applicable. That rule applies to the term "heirs," which is in such case considered a word of limitation and not of purchase. The word "issue" has been sometimes held to operate in this respect like the word “heirs,” but only in those cases in which it is used as synonymous with the latter word. If by "issue" it appears that the testator meant "children," then the rule has no application. A devise of real estate to one and his children under our statute vests an estate in common in the devisees. Estate of Utz, January Term, 1872; Pac. Law Rep., vol. III, p. 75.

Rule in Shelley's case.--Construction.-A general devise made in 1838 to A. with a power of appointment by will and in default of a will, then to her lawful issue in equal shares, and in default of such issue then to her brothers and sisters in equal shares gives A. an estate tail.

*

Ogden's Appeal, Sup. Ct. Penn. May, 1872.

In wills and mere trusts, the intention to vest the estate in the heirs at law of the life tenant may be inferred from other terms than "heirs." In regard to wills technical phrases and forms of expressions decided in other cases, are not permitted to overturn the intent of the testator, when that intent is clearly ascertained to be different in the will under consideration. Estate of Ellis, Sup. Ct. Penn. June, 1872; Pac. Law Rep., vol. IV, p. 34.

The rule in Shelley's case has no place in the interpretation of a will, and takes effect only when the intention of the testator has been first ascertained. Ibid.

"Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker, will enlarge the estate for life of the first taker to an estate tail by implication.” Pott's Appeal, 6 Casey, 170, confirmed. Ibid.

A devise to daughters "in trust, to pay the interest and income thereof during their natural lives, free from the debts, control and engagements of any husband they might have or take," with a power of appointment to them, "and for want of such direction, limitation or appointment,” then the trustee was directed "to grant, assign and pay the same to such person or persons as would be entitled to the same, in case they, my said daughters, had survived their respective husbands, and departed this life intestate, seized thereof in fee:" Held, to vest the fee in the daughters. Ibid.

The testatrix in this cause, in certain events, which happened, bequeathed leaseholds to certain persons by name, and "their issue, equally between them, their respective executors, administrators and assigns, in such manner, shares and proportions as she had thereinbefore directed, respecting her freehold estate. She had devised freehold estates to the persons named as tenants in common in fee. Bacon, V. C., held that "issue was to be used merely as a word of limitation, and the will to be read as if it did not contain the word "issue." Buckingham v. Sellick, Law Journal, June 15, 1872. A. made his will as follows: "And it is my will, that my son John shall have that land, as follows: the southwest quarter of section twenty-two in township twenty-two, north of range one, west, to be for his use his life, and then to fall to his heirs." Held, that this gave to the devisee the fee simple, according to the rule in Shelley's case. McCray v. Lipp, 35 Ind. Rep.; Pac. Law Rep., vol. IV, p. 106.

Brothers and sisters cannot take under the term

"descendants." The

term does not mean next of kin, or heirs at law generally, but it means the