#### HANNAH J. BELL, Respondent, v. GEORGE WARN, Executor, etc., Appellant.

*Legacy —gift over to second legatee*— *when valid.*

Although a first legatee is authorized to consume the legacy if necessary for his subsistence, yet the right to make use of it for that purpose is rather in the nature of a power than an ownership, and a gift over of what the first legatee shall leave is good.

Where the gift to the first taker is absolute in its terms, or when the use only of the. property is given, and the property is such that its use is its consumption, the gift will be deemed an absolute one, and a gift over would be void for repugnancy.

Appeal from a judgment in favor of the plaintiff entered on the decision of the court in an action brought to obtain an adjudication upon a will.

The defendant’s testator died possessed.of real and personal estate, and leaving him surviving a widow and several children, among whom is a daughter, the plaintiff in this action, a *feme sole,*and also leaving a last will and testament, dated June 11, 1867, and a codicil thereto, dated June 1,1868.

Said will and codicil were duly executed and published and duly proved before the surrogate of Cayuga county. The will contained the following bequest: “I hereby give and bequeath to my daughter Hannah J. Bell, $1,250.”

In the codicil was contained the following provision: *“*The sum of $1,250 bequeathed to my daughter Hannah J. Bell by my said will, I attach the following conditions and directions: The said sum of money shall be invested on good security, and the interest semi-annually paid to her from my decease during her life, and if the said Hannah by reason of sickness or want, shall require for her support any of the said principal sum, I direct my executors to pay to her such portion or portions of the same, from time to time, as she may require or need, even to the whole amount of said principal sum; if at her death any of the said principal sum remains, I bequeath the same to her children, share and share alike.”

*H. V.*Howland, for the appellant.

The simple question is this: Where a testator by his will makes an absolute gift of property to *407a legatee, and then by a subsequent codicil, or a residuary clause in the same will, qualifies and limits the gift, is the codicil or residuary clause void ? *(Dorland*v. Dorland, 2 Barb., 63; *Wright*v. *Wright,*13 Eng. L. and Eq., 165, 166.) But the codicil in this case, necessarily revokes and qualifies the entire donation. It changes an absolute title to a mere contingent life estate for support, and gives the remainder to her children equally. It takes away the absolute gift, and therefore does not attempt to limit a remainder upon an absolute title. (*Wright*v. *Wright,*13 Eng. L. and Eq., 165.) But if any doubt ever existed upon this question before, it must be regarded as now settled in this State, that a testator may make an absolute gift of his property to a legatee in one clause of his will, and by a subsequent residuary clause, qualify and limit the gift to a mere life estate, giving the fee or remainder to others. *(Taggert et al.*v. *Murray et al.,*53 N. Y., 233; *Chrystie*v. *Phyfe,*19 id., 344; *Floyd*v. *Fitcher,*38 Barb., 409.) But in the case at bar the gift itself is qualified and limited to a life estate only, and is not therefore an absolute title. (53 N. Y., 233.)

*Wood & Rathbun,*for the respondent.

While a testator may make a bequest to one person in language denoting an absolute gift, and yet limit that bequest over to another on the happening of some event. (3 Kern., 273; 47 N. Y., 512.) The language of the will is a gift in the first part of $1,250 to plaintiff, to do with as she please, and the provision in the codicil limiting the payment of it to her to such time or times as she is sick or in want, is a direction or restriction inconsistent with her doing with it as she pleases, and the fund not being limited over it is void. (3 Vesey, 324; 4 Sim., 141; approved 24 How., 51; 2 Barb., 534; 5 Sim., 232; 1 Jacob, 415.)

Gilbert, J.:

The judgment below seems to have proceeded upon the idea that the codicil did not qualify the gift to the plaintiff contained in the will. To this we cannot assent. The will and the codicil constitute but one instrument. So read, the intention of the testator, we think, is clearly manifested. It appears to have been his wish to give to the plaintiff only the income of the fund, and the right to consume so much of the principal as she should need for her suitable maintenance, and to give to her children whatever might remain *408of the principal of the fund at her death. The codicil changed the gift from an absolute one to a qualified one of the nature stated. There is, therefore, no repugnancy between them. The limitation over is valid and effectual. The circumstance, that it may be defeated by the necessities of the plaintiff, does not affect it. It is expressly provided by statute, that an expectant estate in lands shall not be adjudged void because it may be defeated in that way. (1 R. S., 725, § 33.) And another statute expressly applies the same rule to bequests of personal property. (1 R. S., 773, § 2.) The intention of the testator must govern. *(Upswell*v. *Hall,*1 P. Wms., 651; *Smith*v. *Bell,*6 Pet., 68; *Norris*v. *Beyea,*3 Kern., 273; *Trustees*v. *Kellogg,*16 N. Y., 93; *Chrystie*v. *Phyfe,*19 id., 351; *Taggart*v. *Murray, 53*id., 233.) Such was the rule before the Revised Statutes. Although the daughter is authorized to consume the property bequeathed, and to that, extent may he said to have the disposal of it, yet, being evidently given for her subsistence, the right to make use of the property for that purpose is in the nature of a power rather than an ownership, and a gift over of what the first legatee shall leave is good. Where the gift to the first taker is absolute in its terms, or where the use only of the property is given, and the property is such that its use is its consumption, the gift will be deemed an absolute one, and a gift over would be void for repugnancy. In all these cases the test is the intention of the testator. That will determine the character of the gift. (Wash. Real Prop., bk. 2, chap. 7, § 5, subs. 10, 11.) In *Norris v. Beyea (supra),*Denio, J., states the principle applicable to cases of this kind. " There is,” he says, *“*no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event, the estate thus given should be diverted and go over. to another person. The latter clause in such cases limits and controls the former.” (P. 284; see, also, *Terry*v. *Wiggins,*2 Lans., 272; S. C., 47 N. Y., 512.)

We have examined the cases cited by the respondent, but have not found anything in them in conflict with the views expressed.

The judgment must therefore be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.