McCann, J.
Plaintiffs brought an action to set aside a conveyance of certain real property in Sullivan county from one Philopena Wind to the defendant Wilhelmina Volke on the ground that the same was obtained under duress and while said Philopena Wind was mentally incompetent to convey. The complaint shows that prior to his death George Wind was the owner of the real property described in the complaint, which consisted of a house and lot situate in the village of Jeffersonville, N. Y. He died in 1904 leaving a last will and testament and codicil thereto, both of which have been admitted to probate. He left him surviving his widow, Philopena Wind, who died on the 14th of February, 1926. Said will and codicil read as follows:
“ In the Name of God, Amen.
“ I, George Wind, of the Town of Callicoon, Sullivan County and State of New York, do. hereby make, publish and declare this my last Will and Testament in manner and form following:
“ First. I direct that all my just debts and funeral expenses be paid as soon after my deceased as can conveniently be done.
“ Second. I give, and devise unto my wife, Philopena Wind, the dwelling house and lot in which I now reside in Jeffersonville, Sullivan County, New York.
“ I hereby give and bequeath unto my said wife Philopena Wind, all household furniture plate, printed books, pictures and other works of art, chattels and effects which shall be in the house.
“ Also all mortgages, money and effects, owned and possed by me at my deceased.
“ Dated July 20, 1896.
“ Jeffersonville, Sullivan County, State of New York
“ GEO. WIND (l. s.) ”
Attestation clause follows.
[381]*381“ This is a codicil to my last will and testament bearing date the 20th day of July, 1896 as follows: I do hereby ratify, republish and confirm all the provisions of said will hereby giving and granting unto my said wife, Philopena Wind, all my property and effects both real and personal of every name, nature and kind whatsoever for her sole use and benefit with full power and authority to dispose of sell and convey the same.
“ Second. On the demise of my said wife, Philopena all the rest residue and remainder of my property, both real and personal of every name, nature and kind whatsoever I give, bequeath and devise to my niece, Margie Colaban, of the city of Philadelphia, Pa. to her sole use and benefit absolutely.
“Lastly I do hereby depute, constitute and appoint my said wife and Edwin A. Brand the sole executors of this my last will and testament hereby revoking all other and former wills by me made.
“ In Witness Whereof, I have hereunto set my hand and affixed my seal this 15th day of December, 1904.
On the 14th day of October, 1920, an instrument purporting to be a deed of the real property referred to, was recorded in the Sullivan county clerk’s office and by this deed Philopena Wind was named as the grantor and the defendant Wilhelmina Volke as the grantee. The instrument excepted and reserved to the first party the use and enjoyment of the premises during her natural life and was made on the further condition that the party of the second part should pay to the party of the first part during her lifetime a certain amount in cash, which payment should cease and terminate at the death of the party of the first part. Margie Callahan (named in the codicil as Margie Colahan) was the mother of the plaintiffs herein and the grandmother of the defendants Arthur C. and James E. Stull, who were the children of a deceased daughter of said Margie Callahan. Said Margie Callahan died in January, 1918, leaving the two plaintiffs and the defendants Stull as her heirs at law and next of kin.
The plaintiffs claim that the" deed above mentioned was procured by defendant Volke through undue influence and fraud and without consideration and that for several years last past the said grantor Philopena Wind was of unsound mind and incompetent to convey. The complaint asks judgment that the defendant Wilhelmina Volke be barred from any claim or interest in the said premises and that the said deed be canceled of record.
A motion was made for judgment dismissing the complaint on [382]*382the ground that it did not state facts sufficient to constitute a cause of action and on the further ground that the plaintiffs did not have legal capacity to sue.
The question herein involved depends upon the construction of the will and'codicil of George Wind, deceased. Plaintiffs contend that the said will and codicil gave to the widow the life use of the property in question with power to dispose of the property; that on account of her mental incapacity, she was not able to make any legal disposition thereof; therefore, the deed in .question was not in law or in fact a deed and that thereupon the plaintiffs became entitled to an interest in the property at the death of the widow. Defendant Volke claims that the plaintiffs and the defendants Stull would in no event have any interest in the real estate described, even if the widow had not executed any deed thereof. The trial court granted an order that the plaintiff’s complaint be dismissed and held the devise to Philopena Wind as specific and as giving no interest to Margie Callahan or her heirs. (127 Misc. 735.)
We cannot agree with this conclusion. The will itself is dated July 20, 1896, and the codicil is dated December 15, 1904. Both, however, were executed and published on the latter date and before the same witnesses. Whatever the circumstances, and whatever may have been the reason for not executing and publishing the original will until the codicil was also drafted and published, the meaning of the two, when read together, is clear. By the 1st paragraph of the codicil it is evident that the testator considered that the will gave to his wife all of his real and personal property of every kind whatsoever and without any limitation. It can hardly be claimed, therefore, that to this point the devise of the real estate was specific any more than the bequest of his personal property. The will gave all to the widow. The testator by the codicil, after ratifying, republishing and confirming this devise and bequest to his wife of “ all my property and effects both real and personal of every name, nature and kind whatsoever for her sole use and benefit,” states “ with full power and authority to dispose of sell and convey the same.” Without reference to the 2d paragraph this clause would be meaningless. In the 2d paragraph he states: “ On the demise of my said wife, Philopena all the rest residue and remainder of my property, both real and personal of every name, nature and kind whatsoever, I give, bequeath and devise to my niece, Margie Colaban * * * ” The respondent claims “ rest residue and remainder ” refers to all property not specifically given to the wife by the will. Such a construction is forced and untenable. As has been pointed out, the testator clearly indicates in the 1st paragraph of the codicil that he con[383]*383sidered the will as bequeathing and devising all of Ms property without restriction to the wife; also that the 1st paragraph of the codicil does not grant to the wife any more than he gave or intended to give by the original will. Furthermore, such a construction would make meaningless the phrase already quoted, i. e.,
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McCann, J.
Plaintiffs brought an action to set aside a conveyance of certain real property in Sullivan county from one Philopena Wind to the defendant Wilhelmina Volke on the ground that the same was obtained under duress and while said Philopena Wind was mentally incompetent to convey. The complaint shows that prior to his death George Wind was the owner of the real property described in the complaint, which consisted of a house and lot situate in the village of Jeffersonville, N. Y. He died in 1904 leaving a last will and testament and codicil thereto, both of which have been admitted to probate. He left him surviving his widow, Philopena Wind, who died on the 14th of February, 1926. Said will and codicil read as follows:
“ In the Name of God, Amen.
“ I, George Wind, of the Town of Callicoon, Sullivan County and State of New York, do. hereby make, publish and declare this my last Will and Testament in manner and form following:
“ First. I direct that all my just debts and funeral expenses be paid as soon after my deceased as can conveniently be done.
“ Second. I give, and devise unto my wife, Philopena Wind, the dwelling house and lot in which I now reside in Jeffersonville, Sullivan County, New York.
“ I hereby give and bequeath unto my said wife Philopena Wind, all household furniture plate, printed books, pictures and other works of art, chattels and effects which shall be in the house.
“ Also all mortgages, money and effects, owned and possed by me at my deceased.
“ Dated July 20, 1896.
“ Jeffersonville, Sullivan County, State of New York
“ GEO. WIND (l. s.) ”
Attestation clause follows.
[381]*381“ This is a codicil to my last will and testament bearing date the 20th day of July, 1896 as follows: I do hereby ratify, republish and confirm all the provisions of said will hereby giving and granting unto my said wife, Philopena Wind, all my property and effects both real and personal of every name, nature and kind whatsoever for her sole use and benefit with full power and authority to dispose of sell and convey the same.
“ Second. On the demise of my said wife, Philopena all the rest residue and remainder of my property, both real and personal of every name, nature and kind whatsoever I give, bequeath and devise to my niece, Margie Colaban, of the city of Philadelphia, Pa. to her sole use and benefit absolutely.
“Lastly I do hereby depute, constitute and appoint my said wife and Edwin A. Brand the sole executors of this my last will and testament hereby revoking all other and former wills by me made.
“ In Witness Whereof, I have hereunto set my hand and affixed my seal this 15th day of December, 1904.
On the 14th day of October, 1920, an instrument purporting to be a deed of the real property referred to, was recorded in the Sullivan county clerk’s office and by this deed Philopena Wind was named as the grantor and the defendant Wilhelmina Volke as the grantee. The instrument excepted and reserved to the first party the use and enjoyment of the premises during her natural life and was made on the further condition that the party of the second part should pay to the party of the first part during her lifetime a certain amount in cash, which payment should cease and terminate at the death of the party of the first part. Margie Callahan (named in the codicil as Margie Colahan) was the mother of the plaintiffs herein and the grandmother of the defendants Arthur C. and James E. Stull, who were the children of a deceased daughter of said Margie Callahan. Said Margie Callahan died in January, 1918, leaving the two plaintiffs and the defendants Stull as her heirs at law and next of kin.
The plaintiffs claim that the" deed above mentioned was procured by defendant Volke through undue influence and fraud and without consideration and that for several years last past the said grantor Philopena Wind was of unsound mind and incompetent to convey. The complaint asks judgment that the defendant Wilhelmina Volke be barred from any claim or interest in the said premises and that the said deed be canceled of record.
A motion was made for judgment dismissing the complaint on [382]*382the ground that it did not state facts sufficient to constitute a cause of action and on the further ground that the plaintiffs did not have legal capacity to sue.
The question herein involved depends upon the construction of the will and'codicil of George Wind, deceased. Plaintiffs contend that the said will and codicil gave to the widow the life use of the property in question with power to dispose of the property; that on account of her mental incapacity, she was not able to make any legal disposition thereof; therefore, the deed in .question was not in law or in fact a deed and that thereupon the plaintiffs became entitled to an interest in the property at the death of the widow. Defendant Volke claims that the plaintiffs and the defendants Stull would in no event have any interest in the real estate described, even if the widow had not executed any deed thereof. The trial court granted an order that the plaintiff’s complaint be dismissed and held the devise to Philopena Wind as specific and as giving no interest to Margie Callahan or her heirs. (127 Misc. 735.)
We cannot agree with this conclusion. The will itself is dated July 20, 1896, and the codicil is dated December 15, 1904. Both, however, were executed and published on the latter date and before the same witnesses. Whatever the circumstances, and whatever may have been the reason for not executing and publishing the original will until the codicil was also drafted and published, the meaning of the two, when read together, is clear. By the 1st paragraph of the codicil it is evident that the testator considered that the will gave to his wife all of his real and personal property of every kind whatsoever and without any limitation. It can hardly be claimed, therefore, that to this point the devise of the real estate was specific any more than the bequest of his personal property. The will gave all to the widow. The testator by the codicil, after ratifying, republishing and confirming this devise and bequest to his wife of “ all my property and effects both real and personal of every name, nature and kind whatsoever for her sole use and benefit,” states “ with full power and authority to dispose of sell and convey the same.” Without reference to the 2d paragraph this clause would be meaningless. In the 2d paragraph he states: “ On the demise of my said wife, Philopena all the rest residue and remainder of my property, both real and personal of every name, nature and kind whatsoever, I give, bequeath and devise to my niece, Margie Colaban * * * ” The respondent claims “ rest residue and remainder ” refers to all property not specifically given to the wife by the will. Such a construction is forced and untenable. As has been pointed out, the testator clearly indicates in the 1st paragraph of the codicil that he con[383]*383sidered the will as bequeathing and devising all of Ms property without restriction to the wife; also that the 1st paragraph of the codicil does not grant to the wife any more than he gave or intended to give by the original will. Furthermore, such a construction would make meaningless the phrase already quoted, i. e., giving to the wife the power and authority to dispose of this property, as such power and authority are inherent in one receiving an outright and complete gift. The natural and only possible meaning is that the testator intended his wife to have the use of all of his property during her lifetime, without restriction upon her use of the principal or power to convey any part of it, but that upon her death the niece Margie Callahan should receive such of his property as had not been otherwise disposed of by the widow. (Matter of Ithaca Trust Co., 220 N. Y. 437.)
This being the case, the plaintiffs and the defendants Stull took title to the property described in the complaint upon the death of Philopena Wind, if the conveyance by her to the defendant Wilhelmina Volke was void.
The intent of the testator must be gathered from the whole will. (Matter of Evans, 234 N. Y. 42.) Many cases are cited laying down rules of construction. In the last analysis the intent of the testator must be ascertained. The trial court believed that the codicil limited the absolute title granted in the will, but not as to the alleged specific devise of the real estate. There is no reason for such an interpretation. There was but one devise, which in eluded all of the real estate, and there was but one legacy, which included all of the personal property. The limitation coupled with the power of disposition extended to the whole estate and was included in the 1st paragraph of the codicil wherein the testator ratified, republished and confirmed all of the provisions of his will “ giving and granting unto my said wife, Philopena Wind, all my property and effects both real and personal of every name, nature and kind "whatsoever for her sole use and benefit with full power and authority to dispose of sell and convey the same.” Here is a comprehensive statement, covering property of every kind. This is followed by a provision granting the sole use and benefit of the said property to the wife and included in this sentence is the language “ with full power and authority to dispose of sell and convey the same.” Next follows the provision: “ On the demise of my said wife, Philopena all the rest residue and remainder of my property, both real and personal of every name, nature and hind whatsoever I give, bequeath and devise to my niece, Margie Colaban, of the city of Philadelphia, Pa. to her sole use and benefit absolutely.” This can only refer to the rest, residue and remainder of testator’s [384]*384property not disposed of by the widow. It had all been devised to her for her use and benefit. The codicil shows the understanding of the testator, of the difference between the limitation in paragraph 1 of the codicil to the sole use and benefit of the property with power of disposition, and the provision in paragraph 2 where the sole use and benefit is devised and bequeathed absolutely and without disposition. A gift to one subject to a gift to another is valid under such circumstances. (Tillman v. Ogren, 227 N. Y. 495, 502, where the following language is found: “A gift to one followed by a gift to another of such part thereof as may remain at the decease of the first taker, can be enforced when the intention of the giver is clear and definite to limit the gift to the first taker to a fife estate with power to dispose of the principal or any part thereof during his lifetime and to give to another such part of the principal as is not disposed of in the lifetime of the first taker. [Seward v. Davis, 198 N. Y. 415.] The gift over after a gift that is apparently absolute is sustained because it is ascertained that it was not the giver’s intention to make an absolute gift, but one qualified and limited by the subsequent or other provisions of the will or instrument creating the gifts.”)
We agree with the trial court (127 Misc. 735, 742) that “ the purpose should be to adopt an interpretation which will give every part of the will and codicil some effect. If such purpose can be carried out, it should be done. (Eidt v. Eidt, 203 N. Y. 325.)” We cannot agree, however, with the interpretation of the trial court as to the limitation imposed by the codicil. We cannot distinguish between the specific and the general legacies. We think no such distinction exists for such limitation. We do not find, as stated in the opinion of the trial court, that “ the last portion of the will was separate and distinct, and consisted of a clause which was set apart as a sentence, and was not, in fact, a complete expression or direction but would have to be added to and read in connection with the previous sentence. The words ‘ rest residue and remainder ’ in the 2d paragraph of the codicil have a well-defined meaning, and would not reasonably mean the specifically devised real property, with which we are concerned.”
Herein we differ with the conclusion reached by the trial court. We hold: (1) That the effect of the codicil was to reaffirm a conveyance of all the real and personal property of the testator to his widow, the same to be limited, however, to “ her sole use and benefit with full power and authority to dispose of sell and convey the same; ” (2) that the 2d paragraph of the codicil provides that in case the wife' should leave undisposed of at the time of her death any of the real or personal property which was granted to her by [385]*385her husband, under either his will or the codicil, it should pass to Margie Callahan, and Margie Callahan having died subsequent to the death of the testator said property passed to her heirs at law and next of kin.
Having determined that the heirs of Maggie Callahan were entitled to the property described in the complaint after the death of the widow of the testator, we consequently hold that they have the right to maintain this action to recover the property procured from the widow of testator during her lifetime, -under the allegations as set forth in the complaint.
The order appealed "from should be reversed, with costs and disbursements against the respondent, and the motion denied, with ten dollars costs, with leave to defendants to answer within twenty days upon payment of such costs.
Van Kirk, Acting P. J., Hinman and Whitmyer, JJ., concur; Davis, J., dissents, with an opinion.