(dissenting), after stating the facts substantially as set forth in the foregoing opinion, said: “ The question presented for our determination is whether or not the provisions of the codicil are repugnant to and in conflict with the provisions of the will so that they cannot stand. It first becomes necessary to determine whether or not the devise to Hannah L. gave her a fee or life estate. If she was given a fee, then, the provision in the codicil for Cyrus Bray would be repugnant to it and void. The statute provides that “ the term ‘ heirs,’ or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.” (1 R. S., 748 )
Where an estate is given in one part of a will in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as - the words of the clause giving the estate. (Roseboom v. Roseboom, 81 N. Y., 356.)
*127In the case of Campbell v. Beaumont (91 N. Y., 464), the testator left to his wife Mary Ann,“all my property * * * to be enjoyed by her for her sole use and benefit, and in case of her decease, the same or such portion as may remain thereof, it is my will and desire that the same shall be received and enjoyed by her son Charles.” It was held that the widow took an absolute title. It appears to me that this case is in point and controlling upon the question under consideration. Whitney, the testator, first gave to his wife all his personal property forever. This bequest is absolute in terms, and without qualification, and yet, by his codicil he again attempts to give her personal property to Cyrus Bray.
Again, he devised to his wife and two daughters, in common, all of his real estate “to occupy and dispose of as they may think proper.” This language, standing alone and unqualified, is sufficient to convey the fee; if there was a remainder created, they could not well dispose of the real estate as they may think proper. lie then provided “ that my wife and daughter Tasey have a comfortable home in the house, together with all the fuel, fruit and other proceeds of the farm to which they will be entitled as joint owners,” etc. These words do not limit the devise to the wife or daughter Tasey, but expressly name them as owners. At most, they can only mean that his daughter Harriet P. should do nothing to deprive his wife and daughter Tasey from having the use of the house with such fuel and proceeds of the farm as they will be entitled to as joint owners. The interest of Harriet P. it is not necessary to consider. This devise is then made subject to certain legacies. By his codicil he directed that all that may remain of the property of his wife, both real and personal, at her decease, be made over to and become the property of Cyrus Bray. The codicil does not purport to dispose of his property, but by it the testator attempts to dispose of the property of his wife. It may be urged, however, that this interpretation of the codicil is too technical, that he only attempted to dispose of the property which the wife had received under his will. If I assume this to be the case could the provision then stand \ The widow had the personal property given to her forever. She had this interest in the real estate given to her to occupy and dispose of as she may think proper. If she was given but a life estate she could not dispose of the property “ as she may think proper,” *128for, in that case, she could only use the proceeds, and the fee in the land would have to be preserved for the remainderman. '
If the devise to her is limited that to Tasey is also, for the devise to both is in the same words, and yet as to Tasey no remainderman is named, and consequently the fee as to her interest remains undisposed of. It therefore appears to me that the provisions of the codicil are repugnant to and in conflict with the provisions of the will; that the devise under the will gave the wife a fee, and that the estate thus given is not cut down by the words made use of in the codicil. (See Howard v. Carusi, 109 U. S., 725; Van Horne v. Campbell, 3 Eastern R., 84.)
I am aware that in construing wills the intention of the testator must be our chief guide, and that in determining such intent we must take into consideration the whole instrument and give effect to all of its provisions so far as we can consistently with the rules of law; but where we find provisions in conflict with and repugnant to each other, one must fail, and in such case the rule as stated in Roseboom v. Roseboom (supra), must prevail.
Our attention has been called to the case of Wager v. Wager (96 N. Y., 164) in which case the devise was to the daughter, but' provided that in case she should die leaving no issue, before the death of the testator’s wife, that then in that case the property should go to the wife. It will be observed that in that case the only words used were the words “I give, devise, and bequeath.” She was not given the power to dispose of the property as she might think proper. There was nothing repugnant • to or in conflict with the gift to the wife in case of the daughter’s death without issue. It therefore appears that the case is clearly distinguishable in this regard.
It is now contended that because of the death of the wife during the life of the testator, that Bray, as the ulterior devisee, can take. This would undoubtedly be the case were it not for the fact that the devise to Bray was void for repugnancy; but being void, it cannot be made valid by the death of the first taker. I am aware that a single expression occurring in the opinion in 24 Pickering, 146-156, appears to favor the idea that a void provision of a will may be made valid by the death of a first devisee during the lifetime of the testator. But I have been unable to find any such doctrine pro*129mulgated in the courts of this State. On the contray, in every case where the ulterior devisee has been permitted to take on account of such prior death of the first devisee, it has ’been upon the ground that the provisions of the will were valid and not repugnant. In the case of Wager v. Wager (supra), the first devisee died during the lifetime of the testator, and yet Ruger, Oh. J., proceeds in an elaborate opinion to show that the provisions of that will were not repugnant. If the doctrine now contended for is to prevail, it made no difference whether the provisions were repugnant or not, for, if repugnant, it would cease to be so on such prior death of the first taker. The cases of Norris v. Beyea (13 N. Y., 273, 285); Downing v. Marshall (23 id., 366, 370); and McLean v. Freeman (70 id., 81, 85), are to the same effect.
In the case of Van Horne v. Campbell (3 East. R., 84), it is said that the In re Stringer Estate (6 Ch. Div., 1), was reversed on appeal on two grounds: First. That as the first gift failed by the death of the primary devisee before the death of the testator, the second devisee took effect as a primary limitation. Second. That on the whole will the intention was that the primary devisee should have only a life estate. I have carefully read the opinions in the latter case, and I do not understand that the reversal was placed upon the first ground, but upon the ground that the provisions of the will were not repugnant, that the first devisee took only a life estate.
In the cases of Hughes v. Ellis (20 Beavan, 193); and Greated v. Greated (26 id., 621), the primary devisees died during the lifetime of the testator, and yet it was held that the ulterior devisee could not take for the reason that the provisions of the will under which he claimed were repugnant and void.
Again, it is said that the “ decease ” mentioned in the codicil was intended to mean “ decease ” during the lifetime of the testator. But it appears to me that a careful reading of the codicil will dispose of this question: “ I therefore will and direct that all that may remain of the property of my wife, etc., at her decease, be made over to and become the property of Cyrus Bray.” If the “ decease ” of the wife means “ decease ” during the life of the testator, what property of the wife could then “ remain ” % She had to survive the testator in order to take any property under the will. Dying *130before she could take nothing and nothing could remain. The codicil would thus be meaningless. (Nellis v. Nellis, 99 N. Y., 505.) The motion for new trial should be granted.
Motion for new trial denied, and judgment ordered for the defendants upon the verdict.