(dissenting). It is not unusual to find provisions in wills that are ambiguous, contradictory and repugnant, particularly where they are prepared by unskilled draftsmen. No matter by whom drawn, the words of the will must be deemed those of the testator. It then becomes a question of judgment in ascertaining the intent from the language used, the surrounding circumstances and common experience. ' (Matter of Barney, 207 App. Div. 25, 28; affd., 239 N. Y. 584.)
The language employed in the provisions of this will and codicil is somewhat obscure and contradictory. There is, I think,- one clear principle which may be applied, stated by O’Brien, J.,. in Goodwin v. Coddington (154 N. Y. 283, 286) as follows: “ Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does to make it. A.codicil will not operate to revoke a previous devise or bequest beyond the clear import of the language used.” Again it is said by Martin, J., in Banzer v. Banzer (156 N. Y. 429, 435): “ Where an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt as to the meaning or application of a subsequent clause, nor by any subsequent words which are not as clear and decisive as the words giving the estate * * (See, also, Freeman v. Coit, 96 N. Y. 63.)
The devise in the will of the dwelling house and lot to the wife of testator is absolute. The remainder of all his property was not given to her in express words. If he owned other real estate, it was not devised.
*386The codicil ratified and confirmed the provisions of the will and purported to give her all property, both real and personal, “ for her sole use and benefit with full power and authority to dispose of sell and convey the same.” Again we have an absolute gift. Then follows the clause by which it is claimed the absolute devise of the dwelling house is cut down to a life estate with remainder over to a niece. There is no mention of fife estate in definite words, and we must rely on inferences from obscure language to establish an intent to take title of the home from the wife and give it to a collateral'. Evidently the estate of the testator was small, and this would seem an unnatural thing for him to do.
The surrounding circumstances indicate that eight years prior to -his death the testator, with apparent deliberation, prepared a will providing for his wife. This will, together with the codicil, it appears was executed on December 15, 1904. We are not advised of the exact date of testator’s death, but it is said that he died “ on or about the year 1904.” Wé may assume then that the codicil was prepared in greater haste. It may be that the expression “ on the demise of my said wife” was a phrase borrowed from some legal form, indicating the demise during the lifetime of the testator. But it is unnecessary to speculate on the meaning of words used subsequent to those of absolute gift, where the general intent is so clear and the purpose a natural one. If such provisions are repugnant to and inconsistent with the clear and decisive terms theretofore used, they are void. (Campbell v. Beaumont, 91 N. Y. 464.)
I vote for affirmance.
Order reversed on the law, with ten dollars costs and disbursements against the respondent, and motion denied, with ten dollars costs, with leave to defendants to answer within twenty days upon payment of such costs.