White et al. . Bascom et al.

not sue at the same time, and judgment in favor of one is a bar to a suit by the other; 2 Saund. 47 b.; id. c. d; Bull. N. P. 33. The numerous cases upon the subject will be found referred to in these elementary works, and need not be here repeated. And if the plaintiffs had hired this boat for use, even for a single trip, they might undoubtedly recover the loss in this action. For that would give them the possession, and a special interest or property in the boat. And the fact, that the plaintiffs had the boat in their joint use, would seem to give the same right to sue a stranger to the title, for an injury, as if they had obtained it of a third person. The boat was clearly in the joint use of the plaintiffs, and the earnings were their joint property. If a stranger had owned it, the recovery would make them liable to pay the owner; and so, in the present case, the recovery will enure for the benefit of the owner as between the plaintiffs themselves. But this is not a question which the defendants can raise. The contract was between the defendants and the plaintiffs jointly; and the plaintiffs had the right to use the boat jointly, and to contract, as they did, with the defendants; so that they are bound by the contract to the full extent, and cannot go into any questions arising between the plaintiffs, inasmuch, as the recovery is a full bar to all other claims for the boat, by any one standing in privity with the plaintiffs. So that in regard to the goods, and the boat, it would seem, the plaintiffs had such an interest as to enable them to recover for the loss; and that the instituting such a suit, and its proceeding to final judgment, by the acquiescence of the person or persons having the general property, will conclude their rights, the same precisely, as if the suit had been in their names. We think, therefore, judgment must be reversed, and judgment given for the larger sum.

Exr. of Larrabee v. i.arrabee.

SAMUEL H. HOLLEY, Ex'r of JOHN S. LARRABEE v. CHARLES W. LARRABEE.

Construction of will.

If a testator, in a codicil to his will, make a disposition of a portion of his property, which is inconsistent with the disposition which he had previously made of it, in the original will, it will operate pro tanto as a revocation of the original provision.

Application of this principle in the present case.

A bequest to C. L., in case he outlived L. L., to whom the use of it, during her life, had previously been given, of "such part of the personal estate as may then remain," which was made in a codicil, construed as conveying all the personal estate that remained after the decease of L. L., without regard to the disposition which had been made of it in the original will; and as not limited to such personal property as remained otherwise undisposed of by the original will.

66

TRESPASS for taking certain articles of household furniture which belonged to the estate of John S. Larrabee, deceased. The testator, by his will, dated April 11th, 1842, disposed of his household furniture, as follows: "I give and bequeath to my beloved "wife Lydia Larrabee, the use of all my household furniture dur"ing her natural life, and after her decease, I do give and bequeath "the same to my daughters" (naming them) "to be equally divided 'among them," and, after giving several specific legacies to different persons, made the following bequest, "I give, bequeath and "devise the use, rents, and profits of the remainder of my real "and personal estate, after the payment of the aforesaid legacies, "to my beloved wife Lydia Larrabee, during her natural life, and "after her decease, I do give, bequeath and devise the same to my son Charles W. Larrabee, to hold to him and his heirs for"ever.

66

On the 8th day of October, 1847, the testator added a codicil, in which were the following provisions: "I hereby revoke the devise "and bequest made in my said will, to Charles W. Larrabee, and "to his heirs, of the reversion of all my estate, after the payment "of legacies, and after the decease of my wife, and in lieu thereof, "I give, devise and bequeath to my said son Charles W. Larrabee, "and to his heirs forever, in case he outlives my wife Lydia Lar"rabee, all my real estate, and such part of the personal estate as "may then remain, excepting from this devise the stone store, the

Exr. of Larrabee v. Larrabee.

"wharf, and the store-house on the wharf, and charging it with cer"tain specific legacies named in said will, and in this codicil. And "whereas the said Charles W. Larrabee has lived and worked "with me many years, for which he has received no recompence, "and for which he should be paid; in consideration of which, in "case the said Charles W. Larrabee should die before my said "wife, it is my will, and I hereby give and devise to the legal heirs "of the said Charles W. Larrabee, an equal undivided half of my "real estate, except the stone store and wharf, as aforesaid, and the "other half, after the payment of legacies, as aforesaid, to my chil“dren, and their legal representatives in equal shares, and to come "in possession after the decease of my said wife."

It appeared that the widow, Lydia Larrabee, had deceased, and the defendant admitted the taking of the property, and it also appeared that all the debts against the estate had been paid. Upon this showing, the county court, June Term, 1855,-PIERPOINT, J., presiding, decided that the furniture in question was given to the defendant by said codicil, and, upon that ground, gave judgment in his favor.

Exceptions by the plaintiffs.

O. Seymour and W. F. Bascomb for the plaintiff.

I. The bequest made in the original will of the furniture to the daughters of the testator, to wit, to Sophia Holley, Mary Manning, Amelia Holley, Electa C. Seymour, Martha W. Baker, Sarah Ann Morris, and to his daughters-in-law, Eliza Ann Chipman and Charlotte N. Baldwin, constituted a specific and vested legacy.

That it was specific, see 1 Swift's Digest 453; 2 Williams on Executors 994-1006, notes m. and 1010.

That it vested, see 2 Williams on Executors 1065; 2 Black. Com. (Wendell's ed.) 513, note 49, 514 note 51: 1 Jarman on Wills 726-7, (761).

The legacy thus vested was subject only to the use of the widow, and to pay the debts of the estate. See 1 Swift's Dig. 453; 2 Williams on Executors, 1051-2 and 1035, note s; 2 Blackstone's Com. 513.

For the payment of debts, general legacies would abate before specific. See 1 Swift's Dig. 453 and 456; 2 Black. Com. 513.

Exr. of Larrabee v. Larrabee.

A specific legacy is not liable to contribution, on failure of assets to pay other legacies. 2 Williams on Executors, 994, 1006, 1010. II. The codicil does not revoke the bequest of the furniture, as made in the will.

1. It does not revoke it expressly, although expressly revoking several other bequests.

2. It does not revoke by necessary implication.

The codicil is part of the will. 1 Williams on Executors 175 and 179; and every part of the will ought, if possible, to be made to take effect. See 2 Black. Com. 379; 2 Williams on Executors 931, 4.

It is necessary that a latter provision in a will should be clearly incompatible with a former one to defeat it. See 4 Kent's Com. 531 and 535, note (2). Also see general rules of construction in 1 Jarman on Wills 160, and 165.

The expression "such part of my personal estate as may then remain," fairly construed, means, such part as is not otherwise disposed of. It is the proper expression to use, on the supposition that the furniture was meant to be otherwise disposed of, and thus the codicil on this subject is entirely consistent with the original will.

3. It is a general rule that a specific legacy is not revoked by a general revocatory clause in a subsequent will or codicil. See 1 Williams on Executors 133, and vol. 2 1007, note p; a fortiori, it is not revoked by mere implication.

4. The phraseology, "such part of my personal estate as may then remain," cannot fairly be interpreted so as to include the furniture, but directly the reverse.

On the interpretation given by the defendant, the testator ought to have said all my personal estate, for it would all remain at the decease of his wife.

J. W. Stewart and C. Linsley for the defendant.

By the codicil to his will, the testator revokes the bequest to his son Charles, and in lieu thereof bequeaths to Charles one-half of his real, and such part of his personal estate as may remain after the decease of his widow, in case Charles survives her, (excepting the stone store, wharf &c.)

Exr. of Larrabee v. Larrabee.

No mention is made in the codicil of the household furniture. But, by its terms, the furniture must fall within the denomination of "such part of his personal estate as may remain" after the decease of the widow, and would go to his son Charles. This disposition is inconsistent with the original will, and must, therefore, be regarded as overruling it. A good reason may be assigned for this change, and which substantiates that such was the intention of the testator, inasmuch as, in the first place, he gives the whole residue of his real estate to Charles, and, in the second, but half, the other half going to his daughters. Having thus, by the last arrangement, bestowed the half of his real estate upon his daughters, he might well make a change, relative to the furniture, in favor of Charles.

The pecuniary legacies are chargeable upon the personal as well as real estate, and the furniture falling under the former denomination, must be applied towards payment of the pecuniary legacies. 6 Bacon's Abg. 292.

The opinion of the court was delivered, at the circuit session in June, by

ISHAM, J. The provisions in the original will are free from any ambiguity in relation to the disposition of the property for which this action is brought. The household furniture is given to the widow of the testator, during her life, and after her decease to his daughters, who are named in the will, and is not charged with the payment of the legacies. The remainder of the estate, real and personal, after the decease of the widow, is given to the defendant, and on it the payment of the legacies are charged. It would seem that the testator intended to give to the defendant all the property of the estate, from which the legacies were to be paid. The widow having deceased, the household furniture, by the original will, is vested in the daughters, and such is now their right, unless by a subsequent disposition of that property, that right is taken from them.

The defendant has taken possession of this household furniture, and he claims to be the owner of it under a codicil to this will, executed by the testator on the 8th day of October, 1847. There is no express revocation of the gift of this furniture to the widow and daughters, yet, if there was made a subsequent disposition of