The complaint in this case hardly states sufficient to authorize the court to entertain the suit. It
If there is personal estate in the hands of the executors of Thomas Barlow, undistributed, and which is claimed by the legatees of Thomas Barlow on the one hand, and by those of Lucy Barlow on the other, a case is undoubtedly presented for the interposition of a court of equity, to settle the accounts of the executors, and to construe the will and determine the rights of the parties.
The counsel for the plaintiffs, representing the executors of Lucy Barlow, invokes the principles stated in Underhill agt. Tripp, (ante p. 51,) to show that the absolute gift in perpetuity to Lucy Barlow, in the will of her husband, can not be affected by the codicil. But the cases are widely distinguishable in more than one particular. If the will and codicil are to be treated as one instrument, they contain an absolute bequest to Lucy Barlow of one-third of the personal estate, and an equally express gift of the same third, after the death of Lucy Barlow, to the testator’s four daughters. This is not the case of a mere direction or limitation inconsistent with an absolute bequest, as in Bradley agt. Piexotto, (3 Ves., 324,) where there was an
But here are two bequests, both explicit and necessarily repugnant. If they were both in the same instrument, one must fail altogether, or both must fail, or the will be construed so as to give effect to both by one modifying the other. If one of the bequests were to be rejected, it would not be the latter. The contrary is the old rule, and although somewhat modified in its application in more recent cases, it is a rule of law still, that of two repugnant clauses in a will, the last, while of two such clauses in a deed the first, shall prevail. (Co. Litt., 112, b; 2 Atk., 372; 2 Saund., 103.) But where two devises or bequests are not totally irreconcileable, and such as cannot in any way of reading them stand together, one may modify the other, and both have effect, Thus, where lands were given to A. in fee, and in a subsequent part of the will the same lands to B. for life, both parts were allowed to stand, as if the devise were first to B. for life, and then to A. in fee. (Cro. Eliz., 9.) So where the same lands are devised to A. in fee, and in another part of the will to B. in fee, they take jointly or in common. (2 Atk., 486; Plowd., 539.) Where one part of a will contains an absolute devise or bequest to one, and another part contains a clause giving a remainder to another, either absolutely or contingently, upon the death of the first' devisee or legatee, it is plain upon prin
But the case is stronger for the defendants than this. The bequest to the widow is contained in a will which is dated January.12th, 1852. That to the children, under which the defendants claim, is contained in a codicil dated October 11th, 1862. The rule in such a case is well settled, that an inconsistent devise or bequest in the second of two testamentary papers is a revocation of the first. Thus, in the case already put, of a devise of the same lands to two persons, while if the devises are in the same instrument, the devisees may take jointly or in common ; if they are found in distinct testamentary instruments, the latter is a complete revocation of the former. (3 Mod., 206; Brant agt. Wilson, 8 Cow., 56.) The opinion of Judge Woobworth, in the case of Brant agt. Wilson, has been reviewed and adopted in a controversy relating to the same lands, which was very recently before this court at general term. (Wilson agt. Wilson, 32 Barb. 328, 336; S, C. 20
There will be judgment for an accounting and distribution accordingly ; the costs to come out of the estate.