THIS was an appeal from the Circuit Court of the United States for the District of Maryland.
The bill was filed by the plaintiffs in error, who were the children of Dr. John Bosley, mentioned in the will of James Bosley.
That part of the will which gave occasion to the controversy is stated in the opinion, as are also the material facts in the case.
The Circuit Court decided that the residuary devise in the will was revoked by the residuary clause in the codicil; that the devise of the property, specifically mentioned in the will, was not revoked by the clause in the codicil, and ordered an account to be taken of such part as remained subject to the trust, one half of the proceeds whereof to be paid over to the complainants; and that the testator's agreement, made after the date of the will and the codicil, to lease a part of that real estate for a term of ninety-nine years; the principal sum payable at the option of the lessee, operated to revoke the devise as to that part.
From this decree, the complainants appealed to this court.
It was argued by Mr. Mayer, for the appellants, and Mr. Campbell and Mr. Johnson, for the appellees.
Mr. Mayer, for the appellants, made the following points.
1. The final clause of the codicil institutes no new residuary devisee and legatee; and the words supposed to effect that, are not the appropriate, nor any constructive phrase, for a residuary disposition in a will; and those words (which are, 'all other my property, real or personal,') must be construed either 1st, to comprise all property 'other' than the pew, and so to purport to annul all devises and bequests of will and codicil, except those in favor of Mrs. Bosley; which result must condemn the paragraph as incongruous and absurd; or, 2dly, to point to only property ejusden generis with the pew, and with the real property just in a preceding clause given to Mrs. Bosley and Miss Noel, and being the acquisitions subsequent to the date of the will; or, 3dly, must be rejected altogether as incapable of any consistent or reasonable application; or, as militating against the general intent of the testator, of dedicating his estate (with but small exceptions) to the children of John Bosley, and to Mrs. Bosley. 3 P. Wms. 112; 3 Atk. 61; 3 My. & Cr. 661; 1 Eq. Ca. Abr. 301, pl. 14; 1 Bro. C. C. 127, 39; 1 Russ. 146; 2 Atk. 113; 1 Jarman, 395, '9, 417; Greenl. Cruise [Devises] 133 and note to ch. 8, § 39; 6 Watts, 192; 3 Peters, 117, 118; 11 Gill & J. 206; 2 Paige, 22; 8 Mass. 3; 11 Ed. 528; 22 Maine, 257, 413; 4 B. & Cres. 620; 2 Wms. Ex'rs, 789, 790; 6 Peters, 83, 84; 5 Ves. 247; 10 Wheat. 239; 13 Peters, 173; 5 Ves. Jr. 247; 21 E. C. L. 352; 1 Jarman, 594, 595, 596.
2. The paragraph adverted to, is no residuary disposition; because, a specific bequest follows it to Mrs. Bosley, which would be utterly needless and idle, if it were preceded by the supposed all-comprehending residuary appropriation. 13 Ves. Jr. 39; 1 Russ. 149; 3 Atk. 61; 1 Jarman, 595, 598, 599, 600.
3. There is, by those words, no revocation of the residuary devise and bequest of the will, because, the codicil, in terms following those words, confirms the will, except where the same is (by the codicil) 'revoked and altered.' The testator introduces several express revocations into his codicil; and to only those revocations must he be understood to refer-and to modifications, by name of 'alterations,' of his will-for any interferences with the will, as meant to be revoked, or affected by the codicil. If the words in question touch at all the residuary disposition of the will, they must affect it only as a revocation; and, leaving out of view mere modifications, or 'alterations,' the inquiry is, what revocation the testator meant should trench upon the broad confirmation his codicil gives to the will, thus declared as of continuing force? The will speaks anew from the date of the codicil, even without any confirmatory reference to it in the codicil, and the two acts are thus intimately allied; and any revocation of any part of the will, imputed to the codicil, must be by words as precise and unequivocal, and positive, as are the terms of the dispositions supposed to be revoked.
The testator has given his own limitation to the effect to his 'alterings' of his will, or of any estate disposed of by it, by declaring, in the codicil, that where Mrs. Bosley, (under the clause next to the last,) shall 'alter' any estate, it shall nevertheless take the course prescribed in the will, and that 'alteration' is not, in his view, and by the law of his will, the same as revocation; and he thus precludes the idea that he had in view any revocations but those he had expressly declared in the codicil. 3 Mason, 486; 10 B. & Cres. 895, (21 E. C. L. 192); 3 Pick. 216; 5 Johns. C. R. 534; 1 Wms. Ex'rs, 114, 116; 21 Eng. C. L. R. 352; 4 Kent, 531; 8 Cowen, 58; 1 Jarman, 189, 395; 2 How. Rep. 580.
4. The will and codicil being thus blended and co operative, the codicil avails as a republication of the will, except where such an inference at law is, by the express terms or necessary construction of the codicil, excluded. The will, in this relation to the codicil, is to be treated as if inserted in the codicil. If so, if even there be those contradictory residuary dispositions, the residuary estate must, as modern adjudications now deal with such contrariant clauses, be shared by the parties named or embraced in both clauses. This construction would virtually restore the residuary clause of the will, as the only rule; because, as under the construction just asserted, Mrs. Bosley and the children, the subjects of the two clauses, share equally, by the will, in the residuary estate. 14 Pick. Rep. 521; 6 Johns. C. R. 375; 3 My. & Cr. 376; 1 Jarman, 202, 397, 412; 2 Atk. 374; 2 My. & Keen, 165; Yelv. 209; Cro. Eliz. 9; Greenl. Cruise, (Dev.) 149, (marg.); 10 B. & Cres. 895, (21 E. C. L. 192.)
5. The agreement of the testator to lease a part of his land in Baltimore county, had not the effect to revoke the devise of that part of the land in favor of the complainants, and only modified the devise so as to give the rent and reversion on the lease, in place of the land. This construction applies also to the lot and house by the will devised to 'Old Sarah,' and, subsequently to the codicil, agreed to be leased to William Hollins, as stated in the defendant's schedule. The privilege, accorded by the agreement of lease, to extinguish the rent and so acquire the reversion, does not render the transaction a sale, and give to the contracting lessee the equitable fee of the land. If the agreements for leasing revoked the devises of these pieces of property, then the testator died intestate as to them; the agreements dating after the codicil. Greenl. Cruise, 105, 109, (note to 106); 2 Ves. Jr. 428; 1 Jarman, 167, 171, 172; 4 Kent, 530; 7 T. R. 399; S.C.. 1 B. & Pull. 576; Cro. Car. 23; Cro. Jac. 49; 1 Vern. 97; 3 Bro. Parl. Ca. 12; 2 Chipman, 74; 4 Greenl. 341; 3 Ves. Jr. 685; 1 Maryland Ch. Decis. 36; Cro. Eliz. 9.
The counsel for the appellee made the following points.
1. That the residuary clause in the codicil revokes the residuary clause in the will. 4 Black. 381; 4 Kent, 535, (note); 3 Greenl. Cruise, 139; Rowley v. Eyton, 2 Mer. 128; Rogers v. Pettis, 1 Addams, (Prerog.) 30.
2. That the decree of the court below was right; because, if no part of the specific property devised by the last clause in the will, which contains also the residuary devise, was not revoked by the last clause in the codicil, a large part of that specific property was subsequently disposed of, by the testator, and other parts of it otherwise specifically devised by the codicil.
3. Because that portion of such property so specifically devised by said last clause in the will, his lands in Baltimore county, was revoked by the testator's agreement of lease, afterwards executed by Mrs. Bosley, by her lease to Armstrong, on the 18th of January, 1845, for the term of ninety-nine years, renewable forever. 7 Bac. Ab. tit. Wills and Testaments, G. 344; 4 Kent, Com. 528 to 530, and cases there cited, 6 ed.; Colegrave v. Manley, 6 Madd. 84; Ward v. Moore, 4 Madd. 368; 5 Pick. 112; 7 Johns. Ch. Rep. 261.
Mr. Chief Justice TANEY delivered the opinion of the court.
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