Bradley v. Gibbs, 55 N.C. 13, 2 Jones Eq. 13 (1854)

Dec. 1854 · Supreme Court of North Carolina

55 N.C. 13, 2 Jones Eq. 13

RICHARD BRADLEY find OTHERS against MARY M. GIBBS and OTHERS.

The office of a codicil ordinnri y, is to vary, by adding to or taking from a will, but not wholly to supplant it.

In construing a codicil in reference to the will, the leading and controlling object is, as it is in construing the will itself, to ascertain the intention of ihe testator.

Cause removed, by consent, from the Court of Equity of Mew Hanover County.

The bill was filed by the executors of Robert Gibbs, to obtain the advice of the Court as to the purport and meaning of the will of their testator, and the codicil thereto appended.— The portion of the will on which the question arises, is as follows:—

Seventh. “ After the payment of all my debts as aforesaid, ‘ I will and desire that all the rest and residue of my estate of ‘ every kind, shall be divided into nine equal parts, of ! which my beloved sons Philip II. Gibbs, Robert W. Gibbs ‘ and George McIL Gibbs, shall draw and be entitled to one ‘share each : the remaining six shares to be kept together in ‘the possession of my beloved wife, for the support of herself ‘ and her children, and to be divided off to them when and as ‘ she may find it convenient to do so.”

To the will is added, of the same date, a codicil which is as follows : “ The several shares which shall fall to my daughters in the division of my property, I give, devise and l>c- ‘ cpieath to my friends and relatives, Richard Bradley, William £ B. Gibbs and Robert W. Gibbs, and to the survivors of them ‘ and to the heirs, executors and administrators of such surviv- ‘ ors, in trust for the sole and separate use of my daughters, free ‘ from all dominion and control of any husband or husbands ‘ which they or either of them have now, or may hereafter have, : and of all. and all manner of responsibility for their debts : ‘ and I do hereby will and direct, that it shall and may be per- ‘ fectly discretionary with the trustees, herein named, either to ‘ suffer and permit all, or any of my said daughters, or all or ‘ any of their husbands to have the possession, and receive, use ‘ and enjoy the rents, issues and profits of the property allotted to them, or else to retain the management and control of £ the samé in their hands and pay over annually, the hire and ‘ profits thereof, to my daughters or their husbands.” ■

The executors submit, that having paid all the debts of the estate, the only remaining duty they have to peform, is to pay over the surplus of the estate to the persons entitled thereto : but from, the apparent conflict between the will and the codicil, they are at a loss, and pray the advice of the Court whether they are to deliver the property over to the widow for her to dispose’of as she thinks proper, or whether they are to deliver the same to the trustees for the benefit of the daughters as provided in the codicil ?

The daughters answer, submitting to the direction and advice the Court may give.

The widow, Mrs. Gibbs, insists that, by the true and proper construction of the will and codicil, the executors are required to deliver the property to her for her support, and for' her to give off to the daughters as she may choose, and that when thus given off, the provisions contained in the codicil attach, and not before.

The cause was set for hearing upon the bill, answers and exhibit, and sent -to this Court.

No counsel appeared for tlie plaintiffs.

W. A. Wright, for the defendants.

Battle. J.

The sole question presented for our consideration by the pleadings is, to what extent the disposition made of the residue of his estate by the testator, in the second clause of his will, is effected by the codicil which he annexed thereto. Tlie ■widow contends that the shares to which her daughters are entitled under the said clause, and which are thereby directed to be kept in her possession, for the support of herself and her children, until, she shall find it convenient to divide them off, were not intended by the codicil to be taken from her immediately and invested in the trustees therein named for the purpose therein declared, but were to be so invested for such purposes, whenever she should think proper to divide them off. The executors say that a contrary construction of the operation and effect of tlie codicil had been suggested, and they seek the advice of the Court upon the-question thus raised. We have no hesitation in saying that the construction contended for by tlie widow, is correct. A codicil is a supplement to a will, or an addition made by the testator, and annexed to one, to be taken as a part of a testament, being for its explanation or alteration, or to make some addition to, or subtraction from the former disposition of the testator. 2 Black. Com. 500: Williams on Ex'rs. 8. Hence it is said that a codicil may vary, by adding to or taking from the will, but is not wholly to supplant it. Jarman on Wills 160. In construing a codicil in reference to the will, the leading and controlling obj ect is, as it is in construing the will itself, to ascertain the intention of the testator. So far as a purpose to vary the will, either by adding to or subtracting from it, can be discovered, that purpose, if a lawful one, is to be carried out, but the intention of the testator, as declared in his will, is not to be varied further than is necessary to carry out such purpose. In the will before us, the codicil was written on the same day on which his will was executed, and was introduced under a nota lene. The testator seems to have reflected that under the will which he had just published, the shares of the residue of his estate to which his daughters would become enti-tied, might come to the hands of their husbands and be spent by them, or be liable to the payment of their debts. Against that result, he determined to provide, by annexing to his will the codicil in question, b,y which he directed the shares of his daughters to be vested in trustees for their sole and separate use. We cannot see that he had any other object in view, and we feel almost sure, that if he had desired his daughters shares to be taken from the possession of their mother, before she should find it convenient to divide them oif, he would have expressed himself to that effect in plain language, instead of leaving it as a matter of mere conjecture. A decree may be drawn in accordance with this opinion.

Pfe Cukiam. Decree accordingly.