#### JOHN H. DALTON, EXECUTOR *against*JOHN A. HOUSTON AND OTHERS.

Where the meaning sought to be attributed to a 'codicil, would be to take away the greatest part of a legacy given in the will, on the day before, to a grandson, and cause an intestacy as to that much of the estate, to a part of which the legatee would be again entitled under the statute, there being no change in the state of the testator’s affairs, and the language of the wil being ambiguous, it was *Held*according to rules of interpreting such instruments, not to have been the intention of the testator to revoke the former legacy.

Cause removed from the Court of Equity of Iredell county.

The question in this case arises upon the construction of the will of Placebo Houston, which the executor therein named, submits to this Court for protection against the conflicting claims of the parties interested. The portions of the said will material to the consideration of the case, are as follows :

“Item 2d. I will and direct that after the payment of my debts, all the rest of my estate, both real and personal, shall *402be equally divided among my living children, and the children of my deceased children, the child or children of a deceased child taking one share, which their parent would have taken had he lived, to be equally divided among them when such deceased child has left more than one child surviving.— Tn making this division, each child is to account for all advancements sinee they came of full age.” Item 3rd proceeds to limit the share of a daughter, Mrs. Motz, taken under the preceding clause, to her sole and separate use during her life, and then to her surviving children, equally to be divided.— The 4th item limits the share to be taken under the above (2nd) clause by the five children of a daughter, Sarah Louisa, to the survivors on the dying of either, without child or children.

Item 5th. Provides that the one fifth which will by the 2nd clause of the will fall to John Augustus Houston, son of Augustus 0. Houston, on his dying under age, without wife or child, is to bo divided among the testator’s surviving children, and the children of such as are dead, (taking per stir-pes.)

The will is dated on the 2nd day of March, 1852. To this will is attached a codicil, dated the 3rd day of March, 1852, which is as follows:

“ Codicil to the foregoing wi-lL”

“"Whereas, I Placebo Houston, have made my last will and testament in writing, bearing- date 2d March, 1852, and thereby made sundry devises and bequests, according to the then existing circumstances of my estate, but which circumstances have now materially changed, I do by this writing, which I hereby declare to be a codicil to my said will, to be taken and construed as a part thereof, will and direct, and give to my daughter, Lucy M. Motz, one negro man, Osborne, Kissey and her increase, and William. Also to my daughter, Louisa, Rhinehart’s children, Amy, Hetty, and their increase. To my daughter, Mary Cecilia Dalton, Cynthia and Carolina, and their increase ; Sally, and her increase, and Mary, to be valued-, and if a surplus, to be refunded to the estate. To my son *403Thomas E. Houston, Diet and Alexander, Conda, Eliza, Tabitha and their increase. To my grand-son, John Augustus Houston, the sum of one thousand dollars, including his interest in the money for the Jack, yet to be collected, and should he die before the age of twenty-one years, his property to revert back to my children ; the said Augustus having no further interest in my effects. My real estate to be sold as my executors may deem best for the interest of the estate, and the balance of my negro property to be left to the discretion of the executors to manage as they may think best, to promote the best interests of the estate; all my stock and farming tools, household and kitchen furniture, blacksmith tools, loose plunder of every kind,” &c., c%c. The question submitted by the, executor, is, whether by this codicil the bequest to John A. Houston of one-fifth part, in the body of the will, is revoked by the codicil, and the said John A. is to be restricted to the $1000, or does he take the latter sum in addition to the bequest of one-fifth part. The estate of the testator was a large one, and by making this codicil act as a revocation of the will, there would be a very great reduction in the interest given to John A. Houston, and cause an intestacy as to the one-fifth intended for him, to which, as one of the next of kin, he would be in part entitled at all events.

IF. *P. Oaldwell*and *Poyden,*for the plaintiff.

Mitchell, for the defendant.

Pearson, O'. J.

The pleadings involve the construction of the codicil, and its effect upon the provisions of the will. Does the codicil revoke that provision which gives to the testator’s grand-son, John A. Houston, one-fifth part of the estate ? Or has it simply the effect of *naming the slaves*which lie had before put into the possession of some of his children, and which the will, in general terms, directs to be accounted for as advancements, and of giving to John A. Houston one thousand dollars, including his interest in the money for the Jack?

*404The difference in these two results is very great, and it may be that we have not been able to comprehend the meaning of the testator. If so, it was his misfortune not to have expressed it in direct terms, so that it could be understood. All we can do, is to attempt to arrive at his intention, according to the established rules of construction. By the aid of these yules, after giving to the subject much consideration, we are of opinion that the latter is the proper construction.

*“*A codicil is a supplement to a will, or an addition made by the testator and annexed to, and to be taken as a part of the testament, being for its explanation or alteration, or to make some addition to, or substitution for, the former disposition of the testator,” 2 Blacks. Com. 500. “In dealing with such cases, it is an established rule, *not to disturb the dispositions of the will*further than is *absolutely*necessary, for the purpose of giving effect to the codicil,” 1 Jarman on Wills, 160, and the cases there cited.

To give to the codicil under consideration, the effect of revoking the will, in respect to the disposition made of one-fifth part of the testator’s large estate, and of cutting off his grandson, to whom he had given that fifth part, so as to allow him only $1000, which is to include the amount to which he was before entitled on account of the Jack, and of leaving this fifth part undisposed of, would be very greatly to disturb the dispositions of the will, and cannot be justified by any rule of construction, unless direct words be used to express that such is the meaning of the testator.

The codicil begins by setting out that the will “ made sundry devises and bequests according to the then existing circumstances of my estate, but which circumstances having now materially changed, I do by this writing, which I hereby declare to be a codicil to my said will, to be taken and construed as a part thereof, will, and direct and give to my daughter, Lucy, &c.” This announcement prepares one to look for great results, but when taken in connection with the fact, that the will was executed the *very da/y before*the codicil was made, so that there was no time for the *“*existing circumstan*405ces of the estate to have materially changed,” and with the dispositions made in the codicil, it is obvious that it is in truth a “ mere preamble,” which the man, who was writing the codicil had taken from some old form that he had seen, or had then before him, and consequently, is not deserving of very great weight in putting a construction upon the disposing parts of the instrument.

In looking at the clause of the codicil, which gives rise to' the difficulty, we find enough to create perplexity as to the meaning, but not enough to satisfy the mind, that there was an intention to revoke. After giving the $1000, it proceeds, “ and should he die before he arrives to the age of twenty-one years, *his property*to revert back to my children, said John Augustus *having no further interest in my effects”*“ FT is property” can hardly refer to the $1000, because that is not the way we usually speak of *money;*and if it refers to the property which he takes under the will, and there is nothing else to which it can refer, it is a recognition instead of a revocation of the provision made for him by the will, and the words, “ having no further interest in my effects,” may be satisfied by supposing them to refer to the fact, that both, by the will and the codicil, the legacy given to John A. Houston, is subject to a limitation over, if he should die before the age of twenty-one without wife or children, *in which*event, he would have no further interest in the testator’s estate. At all events, these words are of too doubtful an import to justify the conclusion that the testator intended to revoke his will, made only the day before, as to one-fifth part, so as to leave that part undisposed of, and consequently, to be distributed among his next of kin, in which distribution, his grandson, whom it is his supposed intention to disinherit, would take one-fifth part of this undisposed of fifth part; which leads to an absurdity. These considerations and the well-established rule, that a will and the codicil should be so construed as to make them stand together, unless the words forbid it, lead us to the conclusion that the codicil does not amount to revocation.

*406There will be a decree declaring that in the opinion of this Court, John A. Houston is entitled as well to the one-fiftk part given him, by the will, as to the $1000 given him by the codicil.

Per Curiam, Decree accordingly.