Page:Federal Reporter, 1st Series, Volume 8.djvu/596

582 FEDBBAIi BEPOBTBB. �the executora. No notes have been given, no money bas been paid, It is true that these bills have been pending for the purpose of deter- mining whether the condition of the will has been complied with, and that, perhaps,' may be one reason why nothing has been dons to make available any portion of the amount of these subscriptions. But all experience shows that even the delay which was given for the realization of the fund sought to be raised by the subscriptions, jeoparded the ultimate payment of a large part of them. So that it muat be considered that there was not, within the meaning and un- derstanding of the testator, pledged and subscribed the sum of $40,- 000 to meet the bequest which he made for the benefit of the agricul- tural school. �Another question arises on the second codicil of the will, and that is whether there was, within the intention of the testator, to be paid to Hamilton and Yale Colleges the f ull sum of $40,000 each, or whether there is to be deduoted from that bequest to each the payment which had been made by him between the date of the codicil and the time of'his death. This subject was not discussed on the argument, as 4he Ewing Female University or St. Mary's School, the residuary legatee under the second codicil, is not a party; but as the counsel wish it, I will state my views on the question. By this second codi- cil he repealed, annulled, and declared void all clauses and provisions in his will and first codicil inconsistent with the second codicil, but he confirmed and reaffirmed everything therein written not inconsist- ent with the second codicil. After having made a bequest by his original will of $15,000 to Hamilton College, and the same sum to Yale College, he declared that any donations which he might make to them during his life-time should be deducted from the bequest in favor of such institutions. And, as will be recollected, he made a payment, between the date of his original will and the date of the first codicil, of $10,000 to each of these colleges, as well as $10,000 to each of them after the date of the second codicil. In his first codicil he says : "Having paid to the three literary institutions men- tioned in the foregoing will $10,000 each, there remains due only to Yale and Hamilton Colleges the same sum to be paid each after my decease." The meaning of which necessarily was that the sum of $10,000 was to be paid to Yale and Hamilton Colleges together; $5,000 to each, and not $10,000 to each. He is equally incorrect in the use of language in his second codicil, where he recites "that the donation of $10,000, as yet unpaid to Hamilton and Yale Colleges, each, can be better used in the cause of education in the Mississippi ��� �