wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency, by reason of which they do not take effect. 2 R. S., 65, §§ 47, 48. S573. The revocation of a will revokes all its Revocation codicils. $574. Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property, that he would have succeeded to if the testator had died intestate. 2 R. S., 65, § 49. S575. Whenever any real or personal property is disposed of by will to a descendant or a brother or sister of the testator, and such legatee or devisee dies during the lifetime of the testator, leaving a successor who survives the testator, such disposition does not lapse, but the thing so disposed of vests in the surviving successors of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. 2 R. S., 66, § 52; substituting successors for "de scendants." $576. If a person is an attesting witness to the execution of a will wherein any beneficial devise, legacy, interest or power of appointment of any real or personal property, is made to such witness, and the will cannot be proved without his testimony, the devise, legacy, interest or power is void so far only as concerns such witness, or any one claiming under him, and the witness is competent to prove the execution of the will. Modified from 2 R. S., 65, § 50; omitting the disqualifi of codicils. When wit ness may succeed. Creditor a competent witness. S577. An attesting witness to a will, without whose testimony it cannot be proved, and who would have been entitled to a share of the testator's estate in case the will had not been established, succeeds to the same portion of the testator's estate that he would have succeeded to if the testator had died intestate, not exceeding the value of the devise or bequest to him in the will. 2 R. S., 65, § 51. S 578. A creditor, whose debt is by a will charged upon property, is not thereby disqualified as a wit ness to prove the execution of the will. 2 R. S., 57, § 6. These three sections are retained because they seem to correspond to the exceptions made by the present Code of Procedure to the admis sion of parties in interest as witnesses. CHAPTER II. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS SECTION 579. Testator's intention to be carried out. 580. Intention to be ascertained from the will. 581. Rules of interpretation. 582. Several instruments are to be taken together. 583, 584, 585. Harmonizing various parts. 586. Words taken in ordinary sense. 587. Words to receive an operative construction. 588. Intestacy to be avoided. 589. Effect of technical words. 590. Technical words not necessary. 591. Certain words not necessary to pass a fee. 592. Power to devise, how executed by terms of will. 593. Devise or bequest of all real or all personal property, or both. 594, 595. Residuary clause. 596. "Heirs," "relatives," "issue," " descendants," &c. 597. Words of donation and of limitation. 598. To what time words refer. 599. Devise or bequest to a class. 600. When conversion takes effect. 601. When child born after testator's death takes under will. 602. Mistakes and omissions. 603. When devises and bequests vest. 604. When cannot be divested. SECTION 605. Death of devisee or legatee. 606. Interests in remainder are not affected. 607. Conditional devises and bequests. 609. Effect of condition precedent. 610. Conditions precedent, when deemed performed. 611. Conditions subsequent, what. 612. Devisees, &c., take as tenants in common. S 579. A will is to be construed according to the intention of the testator.1 Where his intention can not have effect to its full extent, it must have effect as far as possible.2 1 R. S., 748, § 2; Brown v. Lyon, 6 N. Y., 420; see Kane v. Gott, 24 Wend., 665; Savage v. Burnham, 17 $580. In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made; exclusive of his oral declarations. See Bullock v. Evans, 9 H. of L. Cas., 24; Maddison v. interpreta tion." S 581. In interpreting a will, subject to the law of Rules of this state, the rules prescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. Several in struments S582. Several testamentary instruments, executed by the same testator, are to be taken and construed to be take together as one instrument. Howland v. Union Theo. Sem., 5 N. Y., 193, 214; Haven together. ing vari S583. All the parts of a will are to be construed in Harmoniz relation to each other,' and so as if possible to form ous parts. one consistent whole, but where several parts3 are absolutely irreconcilable, the latter must prevail. 'Arcularius v. Geisenhainer, 3 Bradf., 64; affirmed 25 Barb., 403; Egerton v. Conklin, 25 Wend., 224, 238; ld. Id. Words taken in ordinary sense. 4 Covenhoven v. Shuler, 2 Paige, 130; Ford v. Ford, 6 Hare, 492; Stewart v. Jones, 3 De Gex & J., 532. Whether in the same sentence or in different sentences, Barclay v. Maskelyne, H. R. V. Johns., 131; Sweet v. $584. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor,1 or by any other words not equally clear and distinct," or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will.* 3 Cole v. Wade, 16 Ves., 46; see Thompson v. Whitlock, 5 Jur. [N. S.], 991. 2 Thornhill v. Hall, 2 Cl. & F., 22; Barclay v. Maskelyne, H. R. V. Johns., 126. This rule applies equally to prior (Greenwood v. Sutcliffe, 14 C. B., 226) and to subsequent words (Arcularius v. Geisenhainer, 3 Bradf., 75; affirmed 25 Barb., 403; Kiven v. Oldfield, 4 De Gex & J., 30; Borrell v. Haigh, 2 Jur., 229). 3 Campbell v. Harding, 2 Russ. & M., 409; Jennings v. Newman, 10 Sim., 223. Hillersdon v. Lowe, 2 Hare, 355, 372; Mortimer v. Hartley, 3 De Gex & Sm., 332. $585. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will. See Hyatt v. Pugsley, 23 Barb., 285; Marsh v. Hague 1 Edw., 174. S586. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense' can be collected, and that other can be ascertained.2 'Hone v. Van Schaick, 3 N. Y., 538; Cromer v. Pinckney, 3 Barb. Ch., 466; Bullock v. Downes, 9 H. of L. Cas., 24. De Nottebeck v. Astor, 13 N. Y., 98; affirming S. C., receive an construc S587. The words of a will are to receive an inter- Words to pretation which will give to every expression some operative effect, rather than one which will render any of the tion. expressions inoperative. Griffen v. Ford, 1 Bosw., 123, 140; Mason v. Jones, 2 $588. Of two modes of interpreting a will, that is Intestacy to be preferred which will prevent a total intestacy. avoided. Booth v. Booth, 4 Ves., 407. § 589. Technical words in a will are to be taken in their technical sense,' unless the context clearly' indicates a contrary intention.3 'Moore v. Lyons, 25 Wend., 154, 155; Campbell v. Raw- Doe v. Gallini, 5 B. & Ad., 621; 3 Ad. & El., 340; 3 Corrigan v. Kiernan, 1 Bradf., 208; Sherwood v. Sher- to be Effect of words. technical $590. Technical words are not necessary to give Technical effect to any species of disposition by a will. Jackson v. Luquere, 5 Cow., 228; Parks v. Parks, 9 Paige, words not necessary. Certain necessary words not S 591. The term "heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, a fee. unless otherwise limited. 1 R. S., 748, § 1; to similar effect, 1 Vict., c. 26, § 26, 28. S592. Real' or personal property embraced in a power to devise, passes by a will purporting to devise all the real or personal property of the testator. 1 R. S., 737, § 126. to pass Power to executed by devise, how terms of will. |