effect of the codicil was to revoke the be-
quest and devise of the residuum in favor of
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. Spald-
ing 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 Ameri-
can Security & Trust Company.

[888] *Mr. Justice White, after making the
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 pre-

sented.

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

give the sum intended, but the entire remainder of the estate besides.

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. Randfield, 8 H. L. Cas. 225, Lord Campbell (p. 235) stated the rule as follows:

"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 clear,' appears to me to be insufficient. If anything subsequent, unless it is equally there be a clear gift, it is not to be cut down by anything subsequent which does not with reasonable certainty indicate the intention of the testator to cut it down, but the maxim cannot mean that you are to institute a comparison between the two clauses as to lucidity."

And in the same case, Lord Wensleydale, at page 238, said:

respondents is capable of a construction confining its effect to the real estates only."

doubt on this subject could not reasonably be made in view of the explicit terms of the codicil. The uncertainty which, it is alleged, exists in the codicil, is solely as to which one of the beneficiaries named in the will is to be affected by the payment of the sum given by the codicil. Each of those benefited by "The gift, being in terms absolute, cannot the will in substance asserts that the codicil be cut down unless there is a sufficiently is certain in so far as it manifests the inten- clear indication of an interest (intent?) to tion of the testatrix to give, and that it is defeat it by the subsequent clause. I quite equally certain as to the fund from which the agree with the Lord Chancellor in the con payment is to be made, provided such fund struction of those words to which he referred.[390] is found to be the provision made by the will that you need not have a clause equally clear in favor of the other. The arguments hence but it must be reasonably clear, and the at once resolve themselves into the single as-clause to which that effect is attributed by the sertion 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 "We ought not, without absolute necessity, testatrix as expressed in the codicil to give to let ourselves embrace the alternative of a specific sum to Mrs. Colville, but claim that holding a devise void for uncertainty. in the execution of this defined purpose the Where it is possible to give a meaning, we [889]testatrix *brought about uncertainty as to the should give it, that the will of the testator entire residuum of her estate, since intestacy, may be operative; and where two or more it is claimed, was created in that regard. The meanings are presented for consideration, we second (Mrs. Colville) while equally grant- must be well assured that there is no sort of ing the clear purpose of the testatrix, by the argument in favor of one view rather than codicil. to give her only the sum of five another, before we reject the whole. It is thousand dollars, yet argues that this pur-true the heir at law shall only be disinherited pose has been sc expressed as not only to by clear intention; but if there be ever so

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:

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

that the designation by name found in the codicil must be held as dominant, and must be construed as obliterating the clear and legally precise indication of the thing intended to be revoked, which the codicil itself affords, does not commend itself to our approval. That reasoning thus proceeds: The codicil contains a revocation and a gift. The two are wholly distinct, the one from the other. As, therefore, the revocation refers by name to the bequest made to the Home for Incurables, and revokes it, therefore the provision made by the will for testacy as to the entire remainder is destroyed, ever although the gift made by the codicil is only of five thousand dollars, and despite the fact that it plainly, by its terms, refers solely to a bequest of that amount made in the will. But to adopt this view compels a distortion of the language of the codicil, a mutilation of its context, and a division of its provisions into two distinct and substantive matters, when in fact on the face of the codicil it contains but one provision, a revocation and a gift, the one dependent upon the other, the one caused by the other; that is to say, a revocation made in order to give and a gift made solely of the thing revoked. Indeed, to support the view that because the name of the Home for Incurables is stated in the codicil, that instrument had reference to the bequest and devise of the remainder of the estate made by the will, requires not only the arbitrary division of a single sentence in the codicil into two parts, although they are indissolubly connected, but also necessitates a misconstruction of another portion of the will. This follows from the fact that even although the revoking part of the sentence be alone taken into view, dissevered from that with which it is connected in the codicil by a union of thoughts and of words which cannot be disassociated, the codicil cannot be said to apply to the gift of the remainder without destroying the signification of its language. The thing annulled and re-ary thereof, as "the bequest" voked by the codicil is not the bequest and devise of the remainder, but the bequest by the will made. The language of the codicil [397]*is: "I hereby revoke and annul the bequest therein made by me." But only one "bequest," that is, the one for five thousand dollars, existed in the will. To cause the word "bequest" to refer to the remainder is to enlarge its scope and significance beyond its legal import. True, to justify the construction that the word "bequest" is synonymous with a bequest and devise of the remainder, it is said that the testatrix by her will "directed" the trustee to sell the real property and to convert all the estate into personal property, and therefore that it might well have been contemplated by her that when the time arrived for a distribution of the estate that the remainder would consist solely of personal property, and therefore, in mental contemplation, the testatrix may naturally have assumed that the transmission of the remainder would be but a bequest exclusively of personal property. This overlooks the fact that the will and codicil were written on the same day; that the period when the

life estate was to cease and the gifts made by the will were to become operative was necessarily wholly uncertain, and, that the terms of the will and codicil evidently relate to the condition of the estate at the time that they were made, and not to that which might exist at a subsequent and uncertain period. The reasoning, moreover, must rest on a selfevident disregard of the terms of the will, which does not, as is expressly asserted to be the case, "direct" the trustee to convert the real estate into personal property, but simply "authorized" it to so do.

And this analysis, which demonstrates that the terms of the codicil do not apply to the bequest and devise of the remainder so as to bring about intestacy, also with equal conclusiveness shows that the codicil cannot be construed as reducing the bequest and devise of the remainder to the extent of the five thousand dollars which the codicil gives. To so construe would be to obliterate the words "the five thousand dollars heretofore in my will bequeathed." It would be to assume that a revocation of a gift in the will had been made by the codicil when there was no necessity for so doing, for if the testatrix had intended simply to give five thousand dollars out of the residue, the mere expression of an intention to give *five thousand[398] dollars would have been entirely sufficient in law to effect such purpose without the slightest necessity of any revocatory clause whatever. This is but to state in another form the abounding reason we have already mentioned, that the express result of the words of the codicil was not alone to revoke a provision of the will, but to do so solely to the extent and for the purpose of executing the new intention conceived by the testatrix by dedicating a particular and named bequest made by the will to the new purpose, and, hence, that the thing selected for revocation and substitution was accurately described in the codicil, omitting the name of the benefici

"of

five thousand dollars heretofore in my will bequeathed." Considered in its ultimate aspect, the proposition that the codicil gave five thousand dollars to the legatee named therein out of the remainder necessarily affirms that the codicil relates to the remainder, and therefore asserts that the testatrix intended, not simply to revoke in order to substitute the new beneficiary to the specific sum revoked, but to create an independent provision wholly disconnected from the bequest made by the will. But this cannot be maintained without striking out the major part of the codicil, and thus frustrating the plain intention of the testatrix unambigu ously expressed in the letter and obviously within the spirit of the instrument.

As, then, the codicil does not, in whole or in part, refer to the bequest and devise of all the residue and remainder made by the will in favor of the Home for Incurables, it remains only to consider whether it operates upon the bequest of five thousand dollars made by the will in favor of the Hospital of the University of Pennsylvania. If it does, it substituted the legatee named in the codi

without denying the reason of things, be successfully asserted that although the testatrix specifically pointed out the clause in her will which she revoked, nevertheless by the mere mistaken use of the name of the person she destroyed or intended to destroy the plain and specific description which she vividly embodied in the very sentence where the name was inadvertently stated.

From the foregoing it results that the use of the name Home for Incurables, in the codicil, was but a mere mistaken designation, dominated and controlled by the description of the character of thing to be affected by the codicil stated therein. Guidel by the principles enunciated in the authorities to which reference at the outset was made, such mere mistake may be corrected, in construing the will, by disregarding the error and following the full and accurate description which will then be contained in the instrument; and hence that the effect of the codicil was to revoke the bequest of five thousand dollars made by the will in favor of the Hospital of the University of Pennsylvania, and to substitute therefor the legatee named in the codicil.

The decree of the Court of Appeals of the District of Columbia must be reversed, and the cause remanded to that court, with directions to affirm the decree of the Supreme Court of the District, the costs of all parties to be paid out of the estate. And it is so ordered.

cil for the institution in question. If it does not, the codicil is void for uncertainty, since there is no other source from which the sum to execute the gift which it makes can be taken. Conversely it results that all the reasoning by which it has become manifest that the codicil did not apply either to the gift or the remainder, establishes that it does so apply to the gift made by the will in favor of the Hospital of the University of Pennsyl [399]vania. In the first place, the gift to that corporation is the only specific bequest found in the will, and, in the second place, it is of the same amount as that named in the codicil. It is therefore embraced within the strictest letter of the description given by that instrument, "the bequest therein (in the will) made by me," and "the five thousand dollars heretofore in my will bequeathed." And a consideration of the whole scope of the will strengthens the force of the language of the codicil. The bequest of five thousand dollars given by the will to the Hospital of the University of Pennsylvania was to be used by it "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 Malanethon Love Ruth." The bequest and devise of "all the residue and remainder of my said estate of whatever kind" in favor of the Home for Incurables was "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 purpose, then, of both gifts was the same. Now, the declared motive generating the making of the codicil in favor of Mrs. Colville was "on account of her kindness to my son and myself during his and my illness and my distress." The natural interpretation of the intention upon which the three provisions rest is reasonably as follows: Having provided CHRISTIAN MOERLEIN BREWING COMfor the perpetuation of the memory of the son by the execution of works of charity of substantially the same nature by two different institutions, the one by the use of five thousand dollars to support one bed, and the other and more important by the application of all the residue and remainder of the estate to support one or more beds, when the mind of the testatrix came to the conclusion that her tenderness to the memory of her son should be manifested by a gift to one who had befriended him, the means of executing this thought which she selected was this, not the revocation or impairment of the greater provision made by the will for honoring the memory of the son, but the transfer of the previous and lesser provision of five thousand dollars to the new legatee. By this means the general plan expressed by the will [400]was unaltered, despite the execution of the

conception which the codicil embodied. It may, in consonance with reason, be considered that the testatrix, whose mind, as the codicil shows, was charged with the recollection of the purposes expressed in her will, should have inadvertently used a wrong name, especially as each of the beneficiaries under the will was to apply the thing given to a like good work. It cannot, however,

Mr. Justice Gray, not having heard the argument, took no part in the decision of this case.

JACOB SONNENTHEIL, Plff. in Err., [401]

v.

PANY et al.

(See S. C. Reporter's ed. 401-416.)

Suit against a United States marshal-suit

1.

2.

3.

against him and attachment creditorsacceptance of deed of trust by creditors, when question for the jury-knowledge of fraud-declarations of grantors, when evi

dence.

A suit against a marshal of the United States for acts done in his official capacity is a sult arising under the laws of the United States.

A suit against a marshal of the United States and his sureties, and also attachment creditors for whom he has seized goods, is not one in which the judgment of the circuit court of appeals is final, under the act of Congress of March 3, 1891, § 6, as the jurisdiction does not depend entirely upon citizenship, although a separate sult against the attachment creditors would have come within that section.

Under the laws of Texas the question of the acceptance of a deed of trust by creditors may be left to the jury, notwithstanding their positive oral testimony to the acceptance, where this question is closely connected with a question of their participation with the debtor in defrauding other creditors.