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 sustained needs no citation of authorities. The instructions to the jury upon this phase of the case were erroneous.

For the reasons stated, the judgment is reversed and the cause remanded.

Reversed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 981; Dec. Dig. § 462.*1

7. WILLS (§ 462*)-CONSTRUCTION-SUPPLYING OMITTED WORDS.

Testator gave general and specific legacies, declared that he had executed a deed to a son which deed reserved a life estate in testator 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"

cur.

BACON et al. v. NICHOLS et al. (Supreme Court of Colorado. Dec. 6, 1909.) Dec. 6, 1909.) 1. WILLS (§ 439*)- CONSTRUCTION - INTENTION OF TESTATOR.

In the construction of wills, the intention of the testator governs, and rules for determining the intention are but advisory.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 957; Dec. Dig. § 439.*] 2. WILLS (§ 477*)-CONSTRUCTION INSTRUMENTS REFERRED TO IN AID OF CONSTRUCTION.

Where a will refers to a deed of real estate as explanatory and as a reason for dispositions made in the will, the deed may be read into the will as a part thereof to ascertain the intention of testator.

[Ed. Note. For other cases, see Wills, Cent. Dig. 998; Dec. Dig. § 477.*]

3. WILLS (8 477*)-CONSTRUCTION - INSTRUMENTS REFERRED TO IN AID OF CONSTRUCTION.

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 reserving a life estate in himself and wife, and provided that the wife should have all his real and personal property, the deed was admissible to throw light on the property which the testator thought he was disposing of.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 998; Dec. Dig. § 477.*]

4. WILLS ($ 471*)-CONSTRUCTION-IRRECONCILABLE LEGACIES.

The rule that where a general legacy is followed by another general legacy of the same property, so that an irreconcilable repugnancy arises, the latter of the inconsistent provisions must prevail, is merely technical, and is only adopted where all other rules fail to show the intention of the testator, and testator's intention that the latter clause should limit the earlier one must clearly appear.

should pass to the son. The land conveyed to 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 reservation in the deed, was between $27,000 and $32,000. Held, that the gift to the wife was of the property not disposed of under the previous portions of the will, as the word "residue," some similar word, was inadvertently omitted from the clause containing the gift to the wife. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 981; Dec. Dig. § 462.*1

Gabbert and Campbell, JJ., dissenting.

or

En Banc. Appeal from District Court, El Paso County; Louis W. Cunningham, Judge.

Petition by Mary A. Bacon and another for the construction of the will of John H. Bacon, deceased, against Mrs. Eloise Powell Nichols and other beneficiaries under the will. From a judgment of the district court affirming a judgment of the county court, petitioners appeal. Affirmed.

J. C. Helm and J. R. Dixon, for appellants. Chinn and Strickler, for appellees.

HILL, J. John H. Bacon executed a will, which, in the disposition of his property, was as follows:

"First. I give and bequeath to Mrs. Eloise Powell Nichols, the only child of my sister Catherine M. Powell, the sum of five thou sand dollars-$5,000.00.

"Second. I give and bequeath to Frank E. Hodgkin, the only child of my deceased sister Mary E. Hodgkin, the sum of five thousand dollars-$5,000.00.

"Third. I give and bequeath to Katie Bacon McKinney, the only child of my deceased brother, Frederick W. Bacon, the sum of five thousand dollars-$5,000.00.

"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.

The courts in the interpretation of wills will look to the whole instrument and construe each part with relation to the language used in other parts.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 988; Dec. Dig. § 470.*]

6. WILLS (§ 462*)-CONSTRUCTION-SUPPLYING OMITTED WORDS.

Where it is evident that testator has not expressed himself as he intended and supposed

"Fifth. I give and bequeath to my sister Aurelia I. Magill, the sum of twenty-five dollars a month during her life.

"Sixth. I give and bequeath to Mrs. Augusta Bacon, widow of my deceased brother Frederick, the sum of twelve dollars and fifty cents a month during her lifetime.

"Seventh. I give and bequeath to Mary 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.

"Eighth. I give and bequeath to Hobart F. Blythe, (son of B. F. Blythe, of Diller, Nebraska), the sum of one hundred dollars.

"Ninth. Having made a warrantee deed to my son William Henry Bacon, for lots seventeen (17), eighteen (18), nineteen (19) and twenty (20) in block eighty-one (81) situated in Colo. Springs, Colo. I also give and bequeath to my said son, my gold time watch and all my diamonds.

Wills, 420. For, as stated in the case of Ely-
ton Land Co. v. McElrath, 53 Fed. 763, 3 C.
C. A. 649, "It is in many cases impossible to
determine, beyond the possibility of a doubt,
what the intention of the testator was; and
all that can be done is to ascertain, from all
the facts and circumstances surrounding him,
his property, and those to whom it is left,
and the language of the will, what probably
was intended;
that has been the

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. 846, 7 L. R. A. (N. 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 questions are urged for determination: "First. Is there an irreconcilable repugnancy between paragraph ten of the will and the preceding paragraphs thereof, and, if so, what is the effect? Incidental to which is the question: Was said clause in said deed admissible for any purpose? Second. Is the will void for uncertainty?"

In the construction of all wills the intention of the testator is the governing principle -the point to which all explanation should be directed. The circumstances of each individual case vary so much from those of most other cases that it is difficult to determine from the explanation or construction of one will what would control in the construction of another; and although there may be general principles tending to assist the courts in determining the intention of the testator, yet they can be but advisory, and not controlling. Such rules are to be used as helps toward reaching the intention

In this case it is shown that the value of the property disposed of was between $27,000 and $32,000, exclusive of any reference to the reservation contained in this deed, which was a deed executed by John H. Bacon and Mary A. Bacon, his wife, to their son, William H. Bacon, about six months prior to the death of the testator, for the property therein named of the conceded value of $100,000, with a rental value of at least $600 per month over and above the cost of keeping the same in repair. The clause referred to in this deed reads as follows: "The said grantors expressly reserve the possession, use and rents and profits of said described premises for and during the natural lives of the said grantors and for and during the natural life of the survivor (of either of them)." While the deed was signed by both Mr. and Mrs. Bacon, it is stipulated that Mrs. Bacon had no interest in the property prior to the execution of the deed. The reservation 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 properties the testator may have understood he was disposing of under the provisions of his will, in which case, in the construction of ambiguous or conflicting provisions, the situation of the parties may be very properly taken into view. Schouler on Wills, §§ 579580; Smith v. Bell, 6 Pet. 68, 8 L. Ed. 322; Nichols v. Boswell et al., 103 Mo. 151, 15 S. W. 343; Day v. Wallace, 144 Ill. 256, 33 N. E. 185, 36 Am. St. Rep. 424; Hunt v. White, 24 Tex. 643.

cause the testator uses in one part of his will words having a clear meaning in law, and in another part other words inconsistent with the former, that the first words are to be canceled or overthrown." But conceding the rule is as contended for by counsel for appellants (where there is an irreconcilable repugnancy between two clauses of a will the latter clause must prevail as being the latest expression of the testator's intention), is there such an irreconcilable repugnancy in this will, when considered as a whole, in the light of the circumstances of the testator and the property which he is disposing of in his will, as should call for the adoption of this rule, when other well-known rules are applied with a view of ascertaining the real intention of the testator? In this case it is not a question of an irreconcilable repugnancy between two clauses of a will and therefore the latter must prevail, but the question here is whether the language used in paragraph 10 is to be accepted in its literal sense so as to defeat the objects sought to be accomplished in the nine paragraphs preceding it—in fact, to defeat all intentions expressed in the remainder of the will-the only other paragraph containing any devise being the elev

In other words, by the language used in the tenth paragraph, when read in the light of the surrounding circumstances, was it the intention of the testator, by this paragraph alone, to defeat the objects of all the preceding ones, and thereby give to his wife all his property, both real and personal?

The principal contention is that as there is no demonstrative or specific legacies mentioned other than in paragraphs 4 and 9 (about which it is admitted there is no dispute), and as the other legacies are general, in that no specific property is charged with their payment and no particular fund is pointed out for their satisfaction, where a general legacy is followed by a general legacy or bequest of the testator for the same property, or part of it, then an invincible or irreconcilable repugnancy arises, in which case it is claimed that the latter of two inconsistent provisions must prevail as evidence of the final intention of the testator. This contention seems to have the support of the great weight of authority, but it is con-enth, contingent upon the death of the wife. ceded the rule is technical, and by some authorities has been designated a harsh one, and is only adopted where all other rules fail in arriving at the intention of the testator; being upon the theory that the last provision can be considered as evidence of the final intent of the testator, but this rule has not been universally adopted. For instance, in the case of Day v. Wallace, 144 Ill. 256, 33 N. E. 185, 36 Am. St. Rep. 424, it was held that where a testator in the several parts of his will devised the same land to different persons in fee, and there is nothing in the will to show that he intended the last-named devisee to take to the exclusion of the first, the two devisees will take the land concurrently as tenants in common, and in which case it was held that there was not such a clear and irreconcilable repugnancy between the two devises as to make the later one abrogate the prior one; and, after conceding there was a conflict of authorities, the court states: "Taking into consideration all the facts of this case proper to be considered, it is manifest that whatever presumption might otherwise arise in favor of the latter clause expressing that intention, rather than the former, is rebutted."

In the case of Field v. Eaton, 16 N. C. 284, where a slave by name "Sal" was, by the testator, first given to his son, and he again devises her in the same way to his daughter, it was held that the legatees took in moieties, specifically repudiating the rule that the latter clause should be taken as the latest intention of the testator. To the same effect is McGuire v. Evans, 40 N. C. 269. In Jesson v.

In the interpretation of wills, courts will look to the whole instrument, and construe each part with relation to the language used in other parts. Lane v. Vick, 44 U. S. 464, 11 L. Ed. 681; Moore v. Dudley, 2 Stew. (Ala.) 170; Foxall v. McKenney, 3 Cranch, C. C. 206, Fed. Cas. No. 5,016; Butler v. Huestis, 68 Ill. 594, 18 Am. Rep. 589; Jackson v. Hoover, 26 Ind. 511; Grimes' Ex'rs v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; Kilgore v. Kilgore, 127 Ind. 276, 26 N. E. 56; Oxley v. Clay, 7 Rob. (La.) 425; Bowly's Lessee v. Lammot, 3 Har. & J. (Md.) 4; Parker v. Wasley's Ex'r, 9 Grat. (Va.) 477. And while, if true, that where there is an irreconcilable repugnancy between two clauses of the will the latter clause must prevail as being the latest expression of the testator's intention, it is a rule of equal force that the testator's intention that the latter clause should thus limit the earlier ones should clearly appear. Temple v. Sammis, 97 N. Y. 526. The authorities which sustain this rule hold that it is applicable only where the two provisions are totally inconsistent and the real intention cannot be ascertained. Covenhoven et al. v. Shuler et al., 2 Paige (N. Y.) 122, 21 Am. Dec. 73. In Goddard v. Whitney, 140 Mass. 98, 3 N. E. 34, in passing upon a somewhat similar question, it is stated: "Where a testa

*

vealed an intention, the language of individ- | 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 exconsidered 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- 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 of his children in the fifth article. Such a purpose, if entertained, would naturally have been expressed in direct language." In the case of Mersman v. Mersman, 136 Mo. 257, 37 S. W. 912, involving the construction to be placed upon the words in one paragraph of a will, it is well stated: "One rule of great force in solving the difficulties of interpretation is that all parts of an instrument should be read so that they shall stand rather than that any part should perish by construction. And, to give effect to all parts, the general

itself, must govern, and that in order to effectuate that intention, as collected from the context, words may, when necessary, be supplied, transposed or changed." And, as stated by Redfield on the Law of Wills, vol. 1, p. 459: "The fact that different persons may which of two or more words, of nearly the entertain different opinions in regard to same import, was omitted in the will, forms no objection to supplying the omission." Redfield on the Law of Wills, vol. 1, p. 452, states day that repugnant words in a will, in whatfurther: "And it was determined at an early words of one part may sometimes require to be limited in their application." In Updike ever portion of the instrument they appeared, v. Thompkins et al., 100 Ill. 406, in placing and which contravened the evident general a proper construction upon a will it was stat-purpose and intention of the testator, in the ed that "particular expressions yield to the general purpose." In the case of Price v. Cole's Ex'x et als., 83 Va. 343, 2 S. E. 200, it was held that the general intention of the testator gathered from the whole will must prevail over the rule "that of two repugnant clauses the last must prevail."

other provisions of the will, might be rejected
or transposed." In volume 2, Williams on
Executors, p. 1155, it is stated: "The con-
struction of the will is to be made upon the
entire instrument, and not merely upon dis-
jointed parts of it; and consequently all its
parts are to be construed with reference to
each other.
Hence, general words

*

mean to use them in their general sense."

That the language used in paragraph 10 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 read in connection with the other portions of the will, was it the intention of the testator to give to it a literal construction, or was it intended that it should be limited in its application and in such case yield to the general purpose, or did he omit the insertion of words which would have clearly expressed his intent? Such words, when inserted, or this paragraph read as though they were in

A similar case to the one under consideration, involving the application of both rules contended for here, is that of Nichols v. Boswell et al., 103 Mo. 151, 15 S. W. 343, wherein the irreconcilable repugnancy was in the second and third paragraphs of the will. The second gave to a granddaughter, Minerva Nichols, to a daughter, Mary, and also to another daughter, Amanda Hudson, "all of my