I am also of opinion that the legacy to the defendants in the codicil is to be regarded as substitutionary, and not cumulative.
The question to be determined is, What was the intention of the testatrix? That intention is to be ascertained from the testamentary papers which she left, aided by such circumstances as may properly be considered by the court. "There is no deviation from the rule, that all the papers which constitute the testamentary act are to be taken together, embracing the will and codicils, and all papers referred to are to be incorporated with the same." Redf. on Wills (ed. of 1864) 435; Wescott v. Cady, 5 Johns. Ch. 343; Willett v. Sanford, 1 Ves. 186.
"The construction of a will depends upon the intention of the testator, to be ascertained from a full view of everything contained `within the four corners of the instrument.' Where language admits of two constructions, one reasonable and natural in its direction of property, and the other capricious and inconvenient, courts of justice may naturally be expected to lean toward the farmer as being what was probably intended." Redf. on Wills (ed. of 1864) 435-439.
"It is true, that, where the same person is mentioned as legatee in the will and in the codicil, the presumption is that the legacy in the *Page 204 codicil is cumulative and not substitutionary; but that presumption is not very strong, and slight circumstances have been held to control it." Coote v. Boyd, 2 Brown C. C. (Perkins's ed.) 405; 2 Lead. Cas. in Eq., Hare Wall., notes, 544 DeWitt v. Yates, 10 Johns. 156.
"Where legacies are of the same sums but given by different instruments, there will always arise considerable doubt in the mind whether they are or not mere repetitions. Hence, although the general presumption that the gifts were intended to be cumulative will prevail in the absence of all ground of contrary presumption, it is evident that slight evidences of a contrary purpose in the mind of the testator will incline the court to adopt such a conclusion; and some of the more recent cases seem to incline to the conclusion that the mere repetition of the legacies before given in the will or codicil, or in an additional codicil, ought not in itself alone to form any sufficient ground to allow both." 2 Redf. on Wills (ed. of 1866) 510, 511, and notes.
In the light of these principles, what was the intention of the testatrix, as derived from the two testamentary papers she left, and the intrinsic evidence contained in them? So far as these defendants are concerned, was the legacy to them in the codicil intended by her as cumulative, or substitutionary? This is a question of fact, to be determined by the court, like all other questions of fact in civil causes, by a balancing of the evidence competent to be considered for that purpose, the burden of proof being upon the executor.
It is evident that the codicil was not intended as a substitute for the original will, from the fact that only a very small proportion of the legatees named therein are named in the codicil, — in fact, with the exception of those to whom, in express terms, she gives "more" than she had given by the will, the defendants are the only legatees named in the codicil that are named in the will. The codicil seems to have been designed by the testatrix as an addition to her will, and as made for the purpose and the sole purpose of giving to some of the legatees under it an additional amount, and legacies to others not mentioned in it.
It is conceded that the testatrix was a person of good business capacity; that she drew the codicil with her own hand; that she understood the force and effect of language. In view of this, it seems to me that great weight is to be attached to the word "more," which she used in the various items of the codicil, where she gave the additional amounts to some legatees. Upon what reasonable hypothesis can it be explained that she used that word when giving additional amounts to some, and did not use it when, as the defendants claim, giving an additional amount to them? Had it been her intention to double the legacy to the defendants, it could have been very easily done in the same way that she increased the legacies to the others by the use of the word "more;" and it is the most natural inference that she would have done so.
In the third item of the codicil she names six societies, all similar in their objects, and all in Boston. The third in that list is the defendants'. If she had intended to give five thousand dollars in addition to *Page 205 the amount in the will, it would have been easy and natural for her to have named them first, and she would have said, "I give and bequeath to the Boston Seaman's Aid Society five thousand dollars more," and five thousand dollars to each of the following named societies, naming those not mentioned in the will. If she had intended the legacy to the defendants as an accumulation and not as a substitution, it would have been in its proper place immediately following the other cumulative legacies, and not in the middle of another clause in the will, where legacies are given to legatees for the first time.
If it be regarded as cumulative, it is not according to the general plan of the testatrix, as shown both in the will and codicil. To no similar society in Boston, or elsewhere, does she give more than five thousand dollars, except the Sailors' Snug Harbor, and that corporation or society is not named in the codicil. If it be said that probably her wealth was derived from business in which sailors were engaged, and on this account, and knowing the temptations and perils which beset them when in port as well as when on sea, she was anxious to testify her appreciation of them and to aid them, and, therefore, intended this as an accumulation, it may be answered, that the interest in this class is shown by the fact that in her will she gave twenty thousand dollars to the Sailors' Snug Harbor, and five thousand dollars to the defendants, they both having the same object in view — a larger amount than she gave to any other charitable use, except for the founding of a free public library in Kittery, the birthplace of her father.
The expression, too, used when she gives additional to the Portsmouth societies and to the fund for the free public library in Kittery, is explicit, and plainly indicates that she did not mean that her intentions and wishes, as to them, should be open to doubt. In the will the four Portsmouth societies are grouped together, and she gives to them three thousand dollars each. In the codicil she says, — "I give and bequeath two thousand dollars more to the fund for the benefit of the Howard Benevolent Society, and two thousand dollars more to the Domestic Missionary Society." Whatever may have been her intentions as to the defendants, she so expressed herself as to leave no doubt as to her wishes with regard to other objects of her bounty to whom she wished to give additional legacies; and so expressing herself with regard to them is very convincing to my mind upon the question of what was her intention with regard to the defendants. It seems to me, too, that a strong argument is drawn from the fact that to all societies in Boston of a similar character and similar objects she gives all equal amount. This view of the cases preserves the symmetry and impartiality of the testatrix. It is also strengthened by the fact, that the codicil is just as it would have been had the provision in favor of the defendants been inserted by mistake, and just as the remaining parts of the codicil show that it would not have been, if she had intended to double the bequest to the defendants.
I am aware that the word "more," as used in the codicil, is not conclusive; but that it is entitled to great weight, and goes very far to *Page 206 strengthen the arguments to be deduced from other parts of the testamentary papers, cannot be doubted. Great stress is laid upon the case of Lee v. Pain, 4 Hare 201, in support of the position that the legacy in question is cumulative, and not substitutionary; but a careful examination will show that in many respects it is not like the present, and that even there the learned vice-chancellor admits that expressions in a codicil, similar to those in this, are not without weight in determining questions similar to those here presented. I have not thought it advisable to go into an examination of the large number of cases which have been cited, but have the rather contented myself with stating some of the reasons which have led me to concur in the opinion that the legacy to the defendants is substitutionary, and not cumulative.