than six feet in thickness may be substituted for the foundation piles."

Light is thrown upon the plain meaning of the contract by the conduct of the parties in the execution of the work. It is not pretended that when the character of the subsoil

was discovered that the slightest claim was preferred that this fact gave rise to an extra allowance. The fact is that the contractors proceeded with the work, obtained delay for its completion, made their final settlements and received their last payment without ever asserting that any of the rights which they now claim were vested in them. Without [883]deciding that such conduct would be decisive if the claim was supported by the contract, it is nevertheless clear that it affords a just means of adding forceful significance to the unambiguous letter of the contract and the self-evident intention of the parties in entering into it.

Judgment affirmed.

HOME FOR INCURABLES, Appt.,

v.

MARY SPENCER NOBLE et al.

EMELINE COLVILLE, Appt.,

v.

AMERICAN SECURITY & TRUST COM-
PANY.

(See S. C. Reporter's ed. 383-400.)

with directions to affirm the decree of the Supreme Court of the District.

See same case below, 10 App. D. C. 56.

Statement by Mr. Justice White:

Mary E. Ruth died on the 16th of June, 1892, having on the first day of the same month and year executed both a will *and a[384] codicil. After revoking all previous wills and codicils, and directing the payment of debts and funeral expenses, the will bequeathed all the real, personal, or mixed property to the American Security & Trust Company for the benefit of a granddaughter, ural life. On the death of the granddaughtSophia Yuengling Huston, during her nater the will provided that the trust should end, and that it should be the duty of the trus tee to pay over to the Hospital of the University of Pennsylvania the sum of five thousand dollars for purposes stated, and to deliver all the "residue and remainder of the estate of whatever kind" to the Home for Incurables, to which corporation such residue was bestowed for a stated object. The codicil unquestionably gave to Emeline Colville a bequest of five thousand dollars. The will and codicil are printed in full in the margin.t

†I, Mary Eleanor Ruth, residing in the city of Washington and the District of Columbia, being of sound and disposing mind and memory, do make and publish and declare this to be my last will and testament, hereby revoking and making null and void any and all former wills and codicils by me at any time made.

First. I direct my executor hereinafter named

Codicil, when effective-construction of codi- to first pay out of my estate my funeral ex

1.

cil and will.

A codicil which makes the testator's intent

reasonably clear may be given effect, though
It is not so free from ambiguity as the provi-
slons of the will which are affected by it.
2. A codicil revoking a "bequest" to a home
for incurables, and bequeathing to a friend
"the $5,000 (heretofore in my will bequeathed
to said Home for Incurables)," does not re-
voke the provision in the will by which all
the residue and remainder of the estate, of
whatever kind, is given (using words "devise
and bequeath") to the Home for Incurables,
but does revoke a bequest of $5,000 to a cer-
tain hospital, which is the only bequest of
that amount in the will, both those gifts be-
ing declared to be for the establishment of
beds in memory of a son of the testatrix.

[Nos. 57, 61.]

penses and all just debts.

ac

Second. I give, devise, and bequeath all of my estate, real, personal, or mixed, whether in quired or hereafter to be acquired, and wherepossession, reversion, or remainder, now soever situate, to the "American Security & Columbia, its successors and assigns, in trust Trust Company" of Washington City, District of nevertheless for the following uses and purposes only, that is to say

To invest and to reinvest the proceeds of my said estate in its discretion from time to time in any of the following classes of securities; that is, either in United States bonds, or in

municipal or state bonds, or in first-mortgage bonds of dividend-paying railroads, or in loans secured by first trusts upon real estate in the District of Columbia, said loans not to exceed three-fourths market value of said real estate; and to pay over so much of the annual income from said investments and reinvestments to the

Argucd and Submitted November 9 & 10, guardian or guardians of my granddaughter 1898. Decided January 3, 1899.

A

Sophia Yuengling Huston as may be sufficient to provide for her maintenance, education, and PPEALS from a decree of the Court of support until she becomes of the full age of Appeals of the District of Columbia twenty-one years after which period the entire income so annually received from said investholding that the effect of the codicil to a will ments and reinvestments shall be paid over by was to revoke the bequest and devise of the said trustee to my said granddaughter for her residue of the estate, and that after paying sole use and benefit for and during the period of the legacies, such residue should be distrib- her natural life. Provided, however, that the uted among the heirs at law, and reversing income thus provided for my said granddaugh. a decree of the Supreme Court of that Dis- ter for and during the term of her natural life trict holding that the codicil substituted the shall sooner cease and determine at any time legatec to a bequest made in favor of the hoswhen it is ascertained by my said trustee that pital of the University of Pennsylvania. De-given by said granddaughter, or in anywise exany part of my said income shall have been cree of the Court of Appeals of said District pended by or through her for the use or benefit reversed, and cause remanded to that court, of Robert J. Huston, from whom her mother,

[385] *In October, 1895, the American Security | settled rules of construction. She averred
& Trust Company, alleging the death of the that, applying such rules, it was clear
granddaughter and the termination of the that the codicil operated to revoke the
trust, filed a bill to obtain a construction of bequest and devise of the residuum of the
the will and codicil, to the end that it might estate made in favor of the Home for Incura-
be enabled to distribute the estate, and thus bles; and *had substituted Mrs. Colville as [387]
[386] be legally discharged from all obligations in the residuary devisee after the payment of the
the premises. The bill charged that, consid- amount of the bequest in favor of the Penn-
ering the will and codicil together, there was sylvania institution. The heirs at law by
uncertainty whether the five thousand dol- their answer, while admitting that the codi-
lars given by the codicil to Mrs. Colville re- cil gave Emeline Colville five thousand dol-
voked the bequest in favor of the University lars, also asserted that the gift of the resi-
of Pennsylvania, or substituted Mrs. Colville, due made by the will, in favor of the Home
in whole or only in part, in the place and for Incurables, was revoked by the codicil,
stead of the Home for Incurables, as to the and therefore that, after payment of the
gift in the will to that institution.
legacy of five thousand dollars given to the
Hospital of the University of Pennsylvania,
and a like amount due to Mrs. Colville un-
der the codicil, the remainder of the estate
passed to them, since as to such remainder
the decedent was intestate.

effect of the codicil was to revoke the be-give the sum intended, but the entire re-
quest and devise of the residuum in favor of mainder of the estate besides.
the Home for Incurables, and therefore that
Mrs. Ruth, as to the entire remainder of her
estate, after paying the legacies to the Uni-
versity of Pennsylvania and Mrs. Colville,
had died intestate, consequently that the res-
idue of the estate should be distributed
among the heirs at law. 10 App. D. C. 56.

Messrs. George H. Yeaman, J. Spalding Flannery, and George C. Kobbe for the Home for Incurables.

Mr. Henry P. Blair for the Hospital of
the University of Pennsylvania.

Messrs. Henry Tompson and Edwin
Sutherland for Emeline Colville.

Messrs. Henry Randall Webb and
John Sidney Webb for Mary Spencer No-
ble et al.

Mr. William A. McKenney for American Security & Trust Company.

Before approaching the text of the will and codicil we will notice an erroneous statement of the rule of law by which it is claimed the assertion that the codicil is uncertain is to be tested, and will also state the general scope of the power which courts of equity will exert to correct mistakes in wills, and the cardinal rule of construction which they adopt in so doing.

It is strenuously argued that, unless it be found that the codicil takes away from one of the beneficiaries named in the will the whole or a portion of what the will gives, by language as clear and as free from ambiguity as that contained in the will, the codicil is void for uncertainty and the provisions of the will remain unaffected. This broad proposition is unsound, and the authority by which it is apparently supported has been explained or qualified. Thus in Randfield v.

(p. 235) stated the rule as follows:

[388] *Mr. Justice White, after making the Randfield, 8 H. L. Cas. 225, Lord Campbell foregoing statement, delivered the opinion of the court:

It will subserve clearness of understanding to accurately define at the outset the real contentions which underlie the issues presented.

It is not gainsaid by either of the beneficiaries under the will that the plain intention of the testatrix expressed in the codicil was to give Mrs. Colville the sum of five thousand dollars. Indeed, assertion that there was

at

page 238, said:

"The ratio decidendi, upon which it is said that the vice chancellor held that no operation is to be given to the limitation over on the death of the son without issue, ‘If you have a clear gift it shall not be cut down by anything subsequent, unless it is equally there be a clear gift, it is not to be cut down clear,' appears to me to be insufficient. If by anything subsequent which does not with reasonable certainty indicate the intention doubt on this subject could not reasonably be of the testator to cut it down, but the maxim made in view of the explicit terms of the codi- cannot mean that you are to institute a comcil. The uncertainty which, it is alleged, ex-parison between the two clauses as to luists in the codicil, is solely as to which one cidity." of the beneficiaries named in the will is to And in the same case, Lord Wensleydale, be affected by the payment of the sum given by the codicil. Each of those benefited by the will in substance asserts that the codicil is certain in so far as it manifests the intention of the testatrix to give, and that it is equally certain as to the fund from which the payment is to be made, provided such fund is found to be the provision made by the will in favor of the other. The arguments hence at once resolve themselves into the single assertion that, although the gift made by the codicil is certain, its enforcement may or may not be possible, depending on the particular fountain from which it may be concluded the testatrix intended the stream of her benefaction should flow. And, although differing in form of statement, the contentions upon which the legal heirs and Mrs. Colville base their claim of right to the residuary estate substantially conduce to a like, although more aggravated, result. The first (the legal heirs) concede the certainty of the intention of the testatrix as expressed in the codicil to give a specific sum to Mrs. Colville, but claim that in the execution of this defined purpose the [889]testatrix *brought about uncertainty as to the entire residuum of her estate, since intestacy, it is claimed, was created in that regard. The second (Mrs. Colville) while equally granting the clear purpose of the testatrix, by the codicil. to give her only the sum of five thousand dollars, yet argues that this purpose has been sc expressed as not only to

"The gift, being in terms absolute, cannot be cut down unless there is a sufficiently clear indication of an interest (intent?) to defeat it by the subsequent clause. I quite agree with the Lord Chancellor in the con struction of those words to which he referred.[390] that you need not have a clause equally clear but it must be reasonably clear, and the clause to which that effect is attributed by the respondents is capable of a construction confining its effect to the real estates only."

And this rule of reasonableness is applicable, with peculiar potency, to a case like the one now before us, where the effect of defeating the codicil for uncertainty will confessedly frustrate the clear intention of the testatrix. In this connection the language of Lord Brougham, concurred in by the House of Lords in Doe, Winter, v. Perratt, 6 Mann. & G. 314, 359, is pertinent:

"We ought not, without absolute necessity, to let ourselves embrace the alternative of holding a devise void for uncertainty. Where it is possible to give a meaning, we should give it, that the will of the testator may be operative; and where two or more meanings are presented for consideration, we must be well assured that there is no sort of argument in favor of one view rather than another, before we reject the whole. It is true the heir at law shall only be disinherited by clear intention; but if there be ever so

little reason in favor of one construction of a | his will shall prevail, provided it be consisdevise rather than any other, we are, at tent with the rules of law.' This principle least, sure that this is nearer the intention is generally asserted in the construction of of the testator than that the whole should be every testamentary disposition. It is em void and the heir let in. The cases where phatically the will of the person who makes courts have refused to give a devise any ef- it, and is *defined to be ‘the legal declaration[392] fect, on the ground of uncertainty, are those of a man's intentions, which he wills to be where it was quite impossible to say what performed after his death.' These intentions was intended, or where no intention at all are to be collected from his words, and ought had been expressed, rather than cases where to be carried into effect if they be consistent several meanings were suggested, and seemed with law." See also Colton v. Colton, 127 equally entitled to the preference. U. S. 300 [32: 138]. On this head, it may further be observed that the difficulty of arriving at a conclusion, even the grave doubt which may hang around it, certainly the diversity and the conflict of opinions respecting it, and the circumstances of different persons having attached different meanings to the same words, form no ground whatever of holding a devise void for uncertainty. The difficulty must be so great that it amounts to an impossibility; the doubt so great that there is not even an inclination of the scales one way, before we are entitled to adopt the conclusion. Nor have 391]we any right to regard the discrepancy of opinions as any evidence of the uncertainty, while there remains any reasonable ground of preferring one solution to all the rest. The books are full of cases, where every shift, if I may so speak, has been resorted to, rather than hold the gift void for uncertainty."

No less clearly marked out is the conceded authority of a court of equity to correct mistakes in wills and to enforce the real intention of the testator by giving that construction which accomplishes such purpose. Story (1 Eq. Jur. 12th ed. p. 174) says:

"Sec. 179. In regard to mistakes in wills, there is no doubt that courts of equity have jurisdiction to correct them when they are apparent upon the face of the will, or may be made out by a due construction of its terms; for in cases of wills the intention will prevail over the words. But then, the mistake must be apparent on the face of the will, otherwise there can be no relief; for, at least since the statute of frauds, which requires wills to be in writing (whatever may have been the case before the statute), parol evidence, or evidence dehors the will, is not admissible to vary or control the terms of the will, although it is admissible to remove a latent ambiguity.

"Sec. 180. But the mistake, in order to lead to relief, must be a clear mistake, or a clear omission, demonstrable from the structure and scope of the will. Thus, if in a will there is a mistake in the computation of a legacy, it will be rectified in equity. So, if there is a mistake in a name, or description, or number of the legatees intended to take, or in the property intended to be bequeathed, equity will correct it."

In Hardenbergh v. Ray, 151 U. S. 112, at page 126 [38: 93, 97], the court, through Mr. Justice Jackson, thus stated the doctrine:

"The cardinal rule for the construction of wills, to which all other rules must bend, as stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, 75 [8: 322, 325], is, that 'the intention of the testator expressed in

We come, then, to the text of the will and codicil, in order to consider, first, whether the bequest and devise of the remainder, which the will makes, is in whole or in part affected by the codicil; and, second, if not, whether the codicil substitutes Mrs. Colville to the bequest in favor of the Hospital of the University of Pennsylvania, thereby revoking the gift of five thousand dollars made to the said hospital and conferring that sum upon Mrs. Colville.

The language of that portion of the will with which we are now concerned is as follows:

"Third. In the event of the death of my said granddaughter Sophia Yuengling Huston, or of the occurrence of the prior contingency for the determination of said trust hereinbefore provided in item two, then the trust hereinbefore created and vested in the American Security & Trust Company shall cease and be determined, and so much of my said estate shall thereupon be conveyed and delivered over by said American Security & Trust Company to the Hospital of the University of Pennsylvania as amounts to five thousand dollars, said five thousand dollars to be used by said hospital to endow and forever maintain a first-class perpetual bed in said hospital, in the city of Philadelphia, said bed to be in the name and memory of my beloved son Malancthon Love Ruth.

"All the residue and remainder of my said estate of whatever kind, after the payment of said five thousand dollars for the establishment of said perpetual bed in said hospital, I give, devise, and bequeath to the Home for Incurables at Fordham, New York city, in the state of New York, its successors and assigns forever, to be used by said Home for Incurables, to endow and forever maintain one or more beds in said home in the name and memory of my beloved son Malancthon Love Ruth."

The codicil says:

*"I, Mary Eleanor Ruth, being of sound and[393] disposing mind and memory and understanding, do make and publish this codicil to my last will and testament-I hereby revoke and annul the bequest therein made by me to the Home for Incurables at Fordham, New York city, in the state of New York and I hereby give and bequeath the five thousand dollars (heretofore in my will bequeathed to said Home for Incurables) to my friend Emeline Colville, the widow of Samuel Colville, now living in New York city, said bequest being on account of her kindness to my son and myself during his and my illness and my distress.

1