Conover v. Hoffman

By the Court.

T. R. Strong, J.

[After stating the facts.] — The point made by the appellants is, that the codicil was a revocation of the discretionary power of sale confirmed by the will, buf I am satisfied the position cannot be maintained. The codicil contained nothing manifesting an intention to revoke or qualify the power of sale in the original will in reference to " all the rest, residue and remainder of the estate,” in the twelfth clause of the codicil, which embraced the premises in question. That clause of the codicil purported simply to provide how and for whose benefit the residuary estate should be disposed of, in whatever form it might be when the- division by the executors was to be made, whether real or personal, or part real and part personal.

Every part of it was entirely consistent with the power of sale to the executors, and might be fully executed, whether or not the power of sale should be exercised.

It was at least necessary, in order to nullify the power of sale as to the land contracted to be purchased by the defendant, that there should be an inconsistency between the exercise of the power and some part of the codicil; if it might stand and the codicil have full operation, it remained in force.

The continuance of that power obviously was important in reference to the payment of debts and legacies, and carrying out the design of other parts of the codicil; and viewing the whole instrument, I think it clear that was intended by the testator.

There being no other questions in the case, the judgment must be affirmed.