#### ARTHUR LYMAN *v.*J. W. TURNER’S EXECUTOR.

*Construction of devise. Codicil.*

"The testator devised one-half of certain interest and income to T., and in case of T.’s death bequeathed his interest and income to his sons. The other half of said interest and income was devised to L. By a codicil two-thirds of said interest and income was given to T., and one-third to L. *Held,*that after the decease of T. his sons took two-thirds of the interest and income.

This was an appeal from a decree of the Probate Court, and -was tried by court at the April Term, 1890, Munson, J., presiding. The deeree of the Probate Court was affirmed, and the -appellant excepted.

The second paragraph of the will of J". W. Turner was as foil-lows :

*“*2d. I give, devise and bequeath all my interest and income ■on all of my property, personal and real estate, not hereinbefore -disposed of, to Charles W. Turner and Arthur Lyman, son of .'Seymour Lyman, as follows:

“ I give, devise and bequeath one-half of said interest and income to said Charles "W. Turner during his natural life, and in case of Ms death, give, devise and bequeath said C. W.’s interest and income to Henry W. Turner and Roy *W.*Turner, said ■C. W. Turner’s sons, each one-half, and to be paid them for ten-years, then principal to become theirs. The other half of said interest and income from all my property, not hereinbefore disposed of, I give, devise and bequeath to Arthur Lyman, son of • Seymour Lyman, and to be paid to the said Arthur for ten ..years, them the principal to become his. In case of his death before the expiration of ten years, then in that event, said Arthur leaving no heir or heirs, I give and devise and Ibequeath the said principal to the American Hoard (so called) -and for foreign missions.”

To the will was added this codicil:

“I hereby change the foregoing will so as to give C. W. Turner two-thirds of said interest and income and one-third to the •■said Arthur Lyman.”

*466It appeared that C. W. Turner had deceased, leaving the two-sons named in the will. The Probate Court decreed two-thirds-of the income to them and one-third to Lyman, the appellant.

*P. K. Oleed,*for the appellant.

The codicil only referred to C. W. Turner so long as he lived,„ and not to his sons. When the will is clear and the codicil not equally clear, the plain intent of the will must govern. Tin-ball, Ch. J., in *Doe de Hearle*v. *Hicks,*8 Bing. 475 ; 1 Redf.. Wills, s. 13, p. 351; *Alexander*v. *Alexander,*6 De Gex, Mac.. & G. 593 ; *Williams*v. *Evans,*1 E. *&*B. 726 ; *Robertson*v.. *Powell,*2 H. &. C. 761 ; *Barnes*v. *Hanks,*55 Yt. 317.

A purpose in the codicil to alter the will in one particular carries with it the presumption that the testator did not intend to-alter it in any other. 1 Redf. Wills, 287 and note ; *Quincy*v.. *Rogers,*9 Cush., 291.

*E. R. Hard,*for the appellee.

The will and the codicil together form but one instrument-*Thompson's Admr.*v. *Churchill's Estate,*60 Yt. 371.

The sons of C. W. Turner took, by the will, his interest-When that interest was changed to two-thirds they took two-thirds.

The opinion of the court was delivered by

Rowell, J.

It is clear that Charles W. Turner’s sons take-his “interest and income,” whatever it was. By the original: will it was one-half, but by the codicil it was increased to two-thirds. Therefore his sons take two-thirds, and such was the--judgment below, which is

*Affirmed, and ordered to be certified to the Probate Courts*