M. A. BAIRD, Sen. vs. W. R. BAIRD & AL.

Where two clauses in a will are entirely inconsistent, one with another, the-latter must prevail; but, to produce this effect, the-two clauses-must be entirely inconsistent and incapable of reconciliation.

Where a testator, in one clause of his will, directed!that his wife- should’ “ have a decent and comfortable support to be derived from all his lands - and tenements,” and, in a subsequent clause devised to his sdn A. in fee simple a part of his lands, and the clause proceeded, ‘‘ subject nevertheless,. to a charge of five hundred dollars, to be paid by him, his heirs, §-c., to his brother James M. Baird, as soon as he, the said Jamos M. Baird, shall., have completed his studies, <j-c.; a good and sufficient voucher for the-payment of the said sum of five-hundred dollars, &c., shall vest in him, his -. heirs or assigns forever, a good„pure and absolute estate of inheritance in the said lands and tenements ; Held, that, notwithstanding this charge in favor of James R. Baird, the land so devised was also subject to its proportionate share of the charge in favor of the wife.

Appeal from the Court of Equity of Buncombe County,, Spring Term, 1851, his Honor Judge Settlb presiding.

*266 J. W. Woodfm and J. Baxter, for the plaintiff.

N. W. Woodfm, for the defendants.

. In 1839, Bedient Baird died, having previously duly made and published his last will and testament, in which he devises as follows:

“2ndly. I give and bequeath unto my beloved wife, Mary Ann, in case she survive me, a decent and comfortable support to be derived from all my lands-aud tenements for and during the term of her natural life; and that the full and absolute right of all my househould and kitchen furniture vest in her, together with one horse, saddle and bridle of good quality ; and also that she have .the full, free.and unlimited control of my negroes, Edward, Nancy-, Adelia, and Eliza, and their issue, during her natural life-; alter v, Inch it is my will and desire, that said negroes and such issues as they may have from this time forward, be equally and fairly divide/i between my sons Israel Baird and William R. Baird, share and share alike, except the said girl Eliza, who then with her' issue goes to the said William R. Baird exclusively.

“ 3rdly. I give and bequeath to my son Israel Baird, my five tracts of land, situate, lying and being in the State and County aforesaid, on Beaver Dam Creek, and the waters thereof, including the place where he now lives, containing in all eight hundred acres, more or less, to have and to hold to him and his heirs forever; subject, nevertheless, to a charge of five hundred dollars to be paid by him, his heirs, executors or administrators, to his brother James M. Baird, so soon as he, the said James M. Baird, shall have completed his studies and obtained a diploma, or in a reasonable time thereafter; a good and sufficient voucher for the payment of the said sum of five hundred dollars to the said James M. Baird by the said Israel Baird according to this my will and desire, shall vest in him, his heirs or assigns forever,a good, pure and absolute estate of inheritance in the *267said lands and tenements. I also give and bequeath unto my said son Israel Baird and his heirs, the following ne-groes, to wit: one-man named Perry, one named Mingo, and one girl named Clara,- together with all and singular the issue of her, the said girl Clara, which may be hereafter born, to have and to hold all and singular the said three negroes to him and his heirs forever.

‘'5thly. I give and bequeath to my son William R. Baird and his heirs or assigns forever, all that tract of land, vvhére-' on I now live, containing five hundred and thirty one acres, more or less, together with my negroes Joe, Henry, and' Mary, with all the issue of the said Mary from this time forward, to have and to hold the said negroes, with the issue of the said Mary, to him, the said .William R. Baird, and his heirs forever.

“ Gthly. I will and bequeath to my son James M. Baird one negro boy named Lawson, and one horse, saddle arid " bridle worth at least sixty dollars, with the payment of which five hundred dollars I have and do hereby charge the lands herein devised to my son Israel Baird, making the' same payable so soon as he, the said James M. Baird, shall have completed his studies and obtained a diploma, or within a reasonable time thereafter.”

The land devised to the two sons, Israel and William R. Baird, constituted the whole of. the real estate of the testator. The bill is filed to procure an exposition of the clauses in the will, that are herein set forth. The plaintiff is the' widow and devisee mentioned in the second clause. The-bill charges, that she is entitled to a comfortable and decent support out of the whole of the lands so devised during h.er natural life: That she has never heretofore made any request of her two sons to make any such provision for her, as she is entitled to, and her son Israel having died intestate, and without having made any such provision, his representatives and heirs refuse to do so, or to aid and assist in so doing, alleging, •' that no provision was intended to *268be made, so far as concerned the lands and tenements devised to the said Israel Baird, but that the same was intended solely to be a charge on the real estate devised to William.” The bill prays a decree may be made securing to her such a provision as was devised to her, out oí the lands' of William Baird, and that descended to the heirs of Israel Baird, and which are held by them through their father under the will of Bedient Baird, their grandfather. All the-parties interested in the controversy are before the Court-The answers of the heirs at law of Israel Baird allege, that by the will of Bedient Baird the devise to their father, Israel Baird, was not charged with the maintenance of the-widow, but that the only charge upon it was the sum of five hundred dollars to his son James, which, they allege,. has been paid.

The case was set for hearing, and transferred to the Su¡~ preme Court.

Nash, J.

The governing rule in the construction oí will»! is the intent of the testator. We must endeavor to get into his mind, and, from what he has written- in his will, ascertain, as well as we can, what were his parpóse and wishes in the matter. If not inconsistent with law, and it be sufficiently certain, that purpose must be carried out. No one can be in doubt as to the intention ©f the testator, as expressed in the second clause. He theaein makes provision “ for the decent and comfortable support of his wife during her lifetime.” This was a high moral, as well as- legal obligation on him. She had been his companion and fniend, and with him may have toiled through many a weary day, in accumulating the property lie was about to dispose of; and surely no higher earthly duty could rest upon him, than to provide for her comfort during the remainder of her pilgrimage, when deprived of his protection and. care. But it is a duty, which the law enforces, and which, a husband can, by no testamentary provision, so far as, his.Eeai *269estate is concerned, deprive her of. The testator in this case was aware of his duty, and it appears to have been with him a paramount motive. According, then, to the second clause of the will, her maintainance is made a charge upon all his lands. The words are, “ to be derived from all my lands and tenements.” The difficulty is created by the third clause, in which the testator gives to his son Israel five tracts of land, containing eight hundred acres, “to have and to hold to him and his heirs forever.” This, if it had stopt there, was the devise of a fee simple absolute, simply charged as in the second item. The testator goes on to say, “subject, nevertheless, to a charge of five hundred dollars, to be paid by him, his heirs, executors or administrators, to his brother, James M. Baird,” &c., “a good and sufficient voucher for the payment of the said sum of five hundred dollars to the said James M. Baird, by the said Israel Baird, according to this will and devise,- shall vest in him, his heirs and assigns forever, a good, pure, and absolute estate of inheritance in the said lands and tenements.” That this devise creates a charge upon the land, of 'five hundred dollars, there can be no doubt; and by the heirs of Israel Baird it is contended, that it is inconsistent with that contained in the second clause, and abrogates and makes it void. It is said, that where two clauses in a will are entirely inconsistent, one with the other, that the latter must prevail — upon the principle, that the first deed and last will must stand. To produce this effect, however, the two clauses must be totally inconsistent, and incapable of reconciliation. 1 Roper on Legacies, 328. If they can be reconciled, they shall both stand — upon the principle, that eyery part of a will shall have some effect given to it. Thus, if property be given to A, by one clause of a will, and by a subsequent one, the same property is given to B, they shall hold as joint tenants, or tenants in common; and thereby, each takes benefit under the will. The inconsistency between the clauses we are considering, consists, it *270is said, not in the double charge upon the land, but in the peculiar phraseology of that portion of the third item, which devises the land to Israel Baird. The obtaining a receipt from James, of the payment of the five hundred dollars, shall vest in him “ a good, pure, and absolute estate of inheritance.” The effect and purpose of this clause is to me obvious. He did not mean, that, upon the performance of that condition, he should hold the land discharged of the maintenance, charged upon it in the clause immediately preceding. In the first place, he charges the whole of his real estate with the widow’s maintenance. He does not choose to make her comfort dependent upon any particular part or portion of it. His desire is, that she should bo maintained in that style, and in that abundance she had been accustomed to. And it is not perceived with what propriety the Court can restrict it to a part. Again, the whole of his land, all that he actually owned, is devised to his two sons, Israel and William II. Baird. We are not informed of the value of the respective devises, but we are told in the will, that Israel’s share contains eight hundred acres, and William’s five. But he has another son, James, to provide for, and instead of making his legacy a charge upon all the land, he confined it to the portion given to Israel. Why is this ? It is fair to presume that the testator intended thereby, to equalise the two devises. But this intention is utterly destroyed, if it is held, that the payment of the legacy to James by Israel discharges the claim of the widow upon his land, whereby the whole burthen will be thrown upon William. By such a construction, the widow’s security will be greatly diminished, and the charge upon William greatly increased. Let us suppose, however, that, instead of making the five hundred dollar legacy to James, a charge upon Israel’s devise, he had subjected William’s, also, to it, and annexed the same condition to the whole. Could it be supposed, for a moment, it was the intention of the testator, that, upon the payment of the five *271hundred dollar legacy, the provision made for his widow should cease. To provide for his widow, appears to be a primary object with him — he was not disposed to throw her upon the measured bounty of the law. There is another rule-of construction applicable to this will, or the clause we are considering — if a devise be so worded, that no meaning can be affixed to it, and the will furnish no clue to ascertain the meaning, the bequest must necessarily be void for uncertainty. 2 Roper on Legacies, 329. Now, in the first part of the third item, an estate in fee simple is given to Israel in the land mentioned in it — which is an estate of inheritance — by the performance of the condition annexed in the after part, no greater estate is created. This latter clause, then, is insensible, and can have no operation in enlarging the estate of Israel, or freeing it from an incumbrance, from which it was not freed by the preceding part. But it is preferred to give to the words, “ a good, free, and absolute estate/’ the exposition hereinbefore attached to them. That exposition is aided by the consideration, that, by it, each clause in the will has a practical effect given to it. We cannot consent, that the provision made for the widow in the first clause, which is certain, shall be controlled by a subsequent disposition, which is doubtful and uncertain in its meaning — to say the least of it, it would be the reversal of the rule, id cerium est, quod cerium reddi potest.

It must be declared, that the plaintiff, Mrs. Baird, is, under the will of her husband, Bedient Baird, entitled to a maintenance; and that it is a charge upon the real estate of the testator, of which he died seised and possessed. There being no evidence that the testator had, at the time of his death, any other real estate but that devised to Israel Baird and William R. Baird, it is referred to the Master, to enquire, what will be a proper annual allowance, over and above her estate, which will be a decent and comfortable support for the plaintiff regard being first had to her’ *272situation and condition, and manner of life, during the life of her husband; which, so ascertained, will be declared a charge upon the land devised to Israel and William R. Baird — to be paid by them, on or out of their estates devised, in just proportion to the respective values of the devises, after deducting from Israel’s the legacy to J ames; and the Clerk and Master will report the value' of said devises, upon the principle designated.

• The plaintiff- does not claim any allowance prior to the filing of the bill.

Per Curtam. Decree accordingly.