#### George M. Coffin, Ex’or, *vs.*Anna H. Elliott, and others.

The intention of a testatrix, as to the meaning and effect of her codicil, cannot be shown by the oral testimony of the person who drew it. Testatrix made her will, by which she devised her residence to her niece, 0., in fee; and the residue of her estate she devised and bequeathed to her niece, 0., and her great nephews, W. and B., in fee, “ to be equally divided among them, share and share alike.” 0. afterwards died, and then testatrix made her codicil, by which she devised her residence to W. and B. *:•*— Held, that O.’s share in the residue lapsed, and did not pass to W. and B.

Where there is a devise or bequest to two or more, as tenants in common, whether it be specific or of the residue, the share of one who dies before the testator lapses, and does not pass to the surviving tenants in common.

BEFORE DA ROAN, OH., AT CHARLESTON, JUNE SITTINGS, 1856.

Tbis bill was filed for instructions, and for construction of tbe will of Sarah H. Savage, the testatrix of the complainant.

The codicil, mentioned in the decree, was drawn by George M. Coffin, the complainant, and he was offered as a witness for the purpose of showing that the testatrix declared her intention to be, that her nephews should take the share of the residue given by the will to Catharine 0. Elliott. This testimony was rejected by his Honor, as wholly inadmissible.

So much of the decree of his Honor, as relates to the questions taken to the Court of Appeals, is as follows:

Dargah, Ch. The testatrix, Miss Sarah H. Savage, by her will, among other things, devised as follows: “ I give to my niece, Catharine 0. Elliott, my dwelling-house and lot of land, *245corner of Broad and Savage streets, my present residence, to ber and ber beirs and assigns forever.” * * “ Tbe rest, residue and remainder of my estate, real and personal, whatever and wheresoever, I give, devise and bequeath to my niece, Catharine 0. Elliott, and to my great nephews, William Savage' Elliott and Benjamin Elliott, the sons of the late William S. Elliott, to them, their heirs, executors, administrators and assigns, for ever, to be equally divided among them, share and share alike; the shares of the said residue which I have given •to my said great nephews, William S. Elliott and Benjamin Elliott, to be taken and held for them by my friend, George M. Coffin, during their minority, and to be paid over, assigned and conveyed to them respectively, when they shall respectively attain the age of twenty-one years.” The said Catharine 0. Elliott having died in the lifetime of testatrix, she, by a codicil to her said will, devised as follows: “ I further devise, that my residence at the corner of Broad and Savage streets, bequeathed in my will to my niece, Catharine 0. Elliott, be now bequeathed to my two nephews, William S. and Benjamin Elliott, upon the same terms as the remainder or residue of my property are left to them in my will.”

The first question made by the pleadings is, whether the share of Catharine 0. Elliott, in the residue, lapsed by her death in the lifetime of the testatrix ?

The authorities are abundant, that where there is a bequest or devise to two or more *as tenants in*common, as in this case, that upon the death of one of them, in the lifetime of testator, his share lapses, and is distributable among the next of kin of the testator, according to the statute , of distributions. And the same rule is as applicable to a devise or bequest of the residue, as to a specific devise or bequest.

The Court can see nothing in the wording of the codicil to make this case an exception to the general rule, or to sustain the ingenious argument of counsel, that the codicil is a new devise of the entire residue to the great nephews of the testa*246trix; and is of opinion, that tbe one-tbird of tbe residue of tbe estate of tbe testatrix, devised and bequeathed to Catha-rine 0. Elliott, lapsed by ber death in tbe lifetime of testatrix, and is distributable among tbe next of kin of tbe testatrix, Sarah H. Savage, according to the statute for tbe distribution of intestates’ estates, and *it is so ordered and decreed.*

Tbe defendants appealed on tbe grounds:

1. Because tbe evidence of tbe executor, Mr. Coffin, was admissible, as showing tbe intention of tbe testatrix as to tbe meaning and effect of ber codicil.

2. Because tbe codicil, being tbe republication of tbe will, showed the construction, by tbe testatrix herself, of tbe words “ residue and remainder,” used in ber will; and that under such construction, tbe defendants, 'William S. Elliott and Mrs. Anna Elliott, are entitled to tbe whole of such residue and remainder.

*Elliott,*Simonton, for appellants.

*Hayne,*Holmes, contra.

Per Curiam.

This case was submitted without argument, and this Court concurs in tbe decree, which is hereby affirmed and tbe appeal dismissed.

JOHNSTON, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*