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ering it, certain rules are to be recalled. A codicil does not usually supersede the will as would an after-made will. Its purpose is to alter, explain, qualify, or revoke the will in the respects it defines. It is a part of the will, and the two are to be read and executed as one entire instrument. It may revoke a prior gift, either expressly or by an inconsistent and repugnant disposition.

[3] An express revocation in one particular negatives, by implication, an intention to alter it in any other respect, and an indubitable disposition in the will is not impliedly revoked by the codicil, unless its repugnant provision is likewise indubitable, and then only in the precise degree and to the precise extent of its repugnancy. Taggart v. Murray, 53 N. Y. 233; Pierpont v. Patrick, 53 N. Y. 591; Austin v. Oakes, 117 N. Y. 577, 23 N. E. 193; Wetmore v. Parker, 52 N. Y. 450; Redfield v. Redfield, 126 N. Y. 466, 27 N. E. 1032; Viele v. Keeler, 129 N. Y. 190, 29 N. E. 78; Crozier v. Bray, 120 N. Y. 366, 24 N. E. 712.

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to each of the children, but with the qualifi-
cation or limitation upon the payment to
Mary that the trustees shall pay over to Ro-
setta in their discretion "so much of the in-
come of said trust for my daughter Mary
Elizabeth as may be required for her com-
fortable care and support," so long as they
judge Mary incompetent. This provision of
the codicil is not so inconsistent with the
disposing one of the wlll that the two cannot
stand together. Under it the trustees, instead
of Rosetta, were to judge Mary's mental con-
dition and determine the sum of the income
to be paid Rosetta for her comfortable care
and support. It did not empower the trus-
tees to determine, in their discretion, what
her share of the residue income should be, or
how much was bequeathed to her.
It em-
powered them, rather, to determine, in their
discretion, how much of the one-fourth equal
part bequeathed to her should be expended
for her benefit, and made them custodians
and conservators of the unexpended balance,
as was Rosetta under the will. In fine, it
is the qualification or restriction upon the
disposition to Mary expressed in the will,
with the trustees substituted for Rosetta, ex-
cept that Rosetta still is to apply the requir-
ed moneys to the care of Mary. It was not
intended to and did not revoke or abrogate
the disposition to Mary. It left the donee
and the gift unchanged.

[5] The conclusion already stated makes unnecessary a discussion of the assertion of the appellant that the question here presented is res adjudicata in its favor under the judgment of 1894, in an action between the trustees as plaintiffs and the children of Thomas Lewis as defendants. The assertion is based upon the provisions in that judgment, to the effect that the trustees were bound to determine from time to time the mental condition of Mary, and during her incompetency to pay over to Rosetta as directed, and in such case to retain and safely keep all the balance of the income of such trust. Two reasons refute appellant's assertion: The one, the question as to whom the balance retained and safely kept belonged was not expressly litigated and determined nor comprehended and involved in the things expressly stated and decided in the action; the other, the provision itself is not more favorable to the appellant than the respondents. Under it the latter could claim the balance with as much authority and justification as the former.

[4] The codicil states by way of recital, with unmistakable clearness, the effect of the eighth provision of the will in the particular of the bequest to Mary; that it made Rosetta sole judge as to the mental incapacity of Mary, directed the payment to Rosetta, during the incapacity, of the share which would otherwise be payable to Mary, to be applied to the care and comfort of Mary, and declares an unwillingness to impose upon Rosetta, by reason of her feeble health, "the duty of judgment in regard to the mental condition of her sister," and following thereupon the testator did "revoke and annul so much and such parts of my will as impose the said duty upon the said Rosetta, and (it proceeded) in place thereof I do hereby provide that the said duty of judgment shall be exercised by the trustees, who, in case the said Mary Elizabeth shall, in their judgment, be at any time of unsound mind, or incapable of managing her own affairs, shall pay over, in their discretion, so much of the income of said trust for my daughter Mary Elizabeth as may be required for her comfortable care and support to my said daughter Rosetta, whom I request to assume the duty of the application of such moneys received by her to the use of the said Mary Elizabeth for the purpose of insuring her comfortable care and support." There is, it will be observed, an express revocation of the qualification or restriction attached in the original will to the disposition to Mary, but there is no express revocation of the interlocutory judgment of the Special the bequest. There is a new qualification or restriction substituted for that imposed by the will. The expressed revocation negatives, by implication, an intention to revoke the bequest. Moreover, the qualification or restriction substituted is not repugnant to the bequest. The trustees are still to divide and

The order of Appellate Division reversing

Term should be reversed, and interlocutory judgment of the Special Term affirmed. Final judgment of the Appellate Division and the Special Term modified so as to award the sum found distributable under said judgment to the appellant the Kings County Trust Company, to be held upon the trust in ac

Mary Elizabeth Lewis, with costs in all courts | said lots. Thereafter F. became the owner of payable to all parties appearing and filing lot 3 and an undivided one-third part of lot 5 briefs in this court.

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and HOGAN, JJ., concur.

Ordered accordingly.

(209 N. Y. 186)

WILSON et al. v. FORD et al. (Court of Appeals of New York. June 20, 1913.)

1. EASEMENTS (§ 12*) -CREATION - AGREEMENT BY TENANTS IN COMMON.

Where tenants in common of a lot made an agreement describing by metes and bounds certain adjoining lots owned by them in fee and covenanted with each other and for and

on behalf of the heirs and assigns of each that they and their respective heirs and assigns should forever have and enjoy the use of the lot held in common, exclusive of all other persons, for the purposes mentioned in the agreement, such agreement when executed and recorded was effectual as a grant to establish a perpetual easement in the lot owned in common which attached as an appurtenance only to the remaining premises, specified in the

agreement.

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TION OF GRANTOR.

A deed also attempting to convey an easement over other property must be so construed as to give effect to the intent of the parties manifested by the language used, subject to the rule that, if the language is susceptible of more than one interpretation, the courts will look to the surrounding circumstances existing when the deed was made, the situation of the parties, and the subject-matter of the instrument to determine the intent.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 239; Dec. Dig. § 100.*]

4. DEEDS (§ 99*)—INTENTION OF GRANTORDETERMINATION.

The intention of the grantor, so far as ascertainable, is to be determined from the various written instruments executed by him to express such intention in connection with the acts of all the parties.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. § 99.*]

5. EASEMENTS (§ 23*)-APPURTENANCE-EXTENT TRANSFER.

Several owners of lots 1, 2, and 3 in a plat also owned lot 5 in common, which extended across the rear of the others. Such owners made a written agreement that lot 5 should be an alley for the exclusive use of lots 1, 2, 3, 4, and 6 by the parties to the agreement, their heirs and assigns, as a passageway for themselves, their servants or other deputy, either on foot or with horses, carriages, or otherwise to and from their respective lots aforesaid and to and from the stables built and to be built for private use on their

and lot 7 which abutted lot 5, but which acquired no easement over lot 5 under the agreement. F. thereafter conveyed lot 7 and his undivided one-third of the alley; the deed reciting the grantor's intent to convey to the grantee all the grantor's rights, privileges, and immunities derived from the agreement creating the alley, he reserving to himself the right of using the alley in the manner provided by such agreement. Held, that the "rights and privileges" so referred to were the right and privilege to use lot 5 as a passageway in the manner and for the purposes therein mentioned, and the "immunity" was the right to the exclusion of all persons other than F., his heirs and assigns, and the remaining parties to the agreement, their heirs and assigns, from the use of such lot; his intent being not to sever and convey any interest in lot 5 appurtenant to lot 3 but rather an invalid attempt to grant to lot 7 an easement in lot 5 for all the purposes and with the immunity mentioned in the agreement.

Cent. Dig. § 63; Dec. Dig. § 23.*] [Ed. Note.-For other cases, see Easements,

6. EASEMENTS (§ 14*)—EXCEPTION OR RESER

VATION.

ing entered into a recorded agreement that it The owners of a city lot in common havshould be perpetually and exclusively used by themselves, their heirs and assigns, as an alley for the benefit of certain adjoining lots, including a lot numbered 3 but not including lot number 7 on the opposite side of the alley, the owner of lots 3 and 7 executed a deed purporting to convey the same, together with an undivided one-third interest in the alley, reserving to himself the right to use the alley in the manner provided in the recorded agreement; it being the grantor's intent to convey all his rights, privileges, and immunities created by such agreement. Held, that such reservation should be construed as an exception and could not be limited to the grantor because the term "heirs" was not used; the use of such term not being essential to create a fee as provided by Real Property Law (Consol. Laws 1909, c. 50) § 240.

[Ed. Note.-For other cases, see Easements, Cent. Dig. § 40; Dec. Dig. § 14.*]

7. EASEMENTS (§ 24*)-PROPERTY SUBJECTOWNERSHIP BY COTENANTS - EXTENSION

OF EASEMENT.

Where co-owners of a city lot set it apart specifically described land severally owned by as an alley for the benefit of other abutting them in fee, the owner of a part of such land by conveying the same together with his undivided interest in the alley property and certain other adjoining property as to which the alley was not appurtenant as an easement under the agreement could not extend such easement so as to make it subject to such additional property.

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 64-69; Dec. Dig. § 24.*]

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Where F., the owner of a lot, conveyed the same and a third of the fee in a rear alley in which he had a right of way, reserving to himself without words of inheritance the right to use such alley as before enjoyed, and plaintiffs and their descendants took title to the lot to which the alley was appurtenant and to the undivided interest of F. in the alley by deeds expressly reciting that they were subject to the rights of F., his heirs and assigns, and for years thereafter recognized such rights,

they were estopped to successfully deny the [sions thereof appear on the following diaright of F. and his heirs to use the alley.

gram:

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. 88 27-51; Dec. Dig. § 22.*]

Hiscock and Chase, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Marshall Orme Wilson and Richard T. Wilson, Jr., as executors and trustees of Richard T. Wilson, deceased, and others against James B. Ford and others. From a judgment of the Appellate Division, First Department (148 App. Div. 307, 133 N. Y. Supp. 33), affirming the judgment in favor of plaintiffs, defendants appeal. Reversed, and new trial ordered.

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On the 2d day of January, 1864, the par ties named entered into an agreement wherein they did "mutually covenant and agree that the said Peter H. Morss, his heirs and

The action was brought to procure a determination that plaintiff's testator and the devisees of one Thomas T. Sturgess, their heirs and assigns, are alone entitled to the use of certain premises mentioned in the complaint, and that defendants be forever enjoined from using said premises for any pur-assigns, being owners of said lot No. 1 and pose whatsoever, or, failing, that defendants be forever enjoined and restrained from using the premises for business purposes.

The material facts are as follows: Prior to 1862 Margaret Burr, Mary Burr, and Sarah Burr were owners as tenants in common of land in the city of New York lying between Fourtieth street and Forty-Third street, bounded by Fifth avenue and Madison avenue. In the years 1857 and 1861 the parties named made two separate agreements, reciting that as tenants in common they were owners of the different tracts of land mentioned in each agreement and covenanted that the same should be improved or otherwise disposed of only as sites for residences for private families, or for churches, and that all of the covenants, restrictions, and agreements in said two separate instruments so made should run with the land. The two agreements thus entered into were recorded, and in after conveyances of parcels of the property were referred to, but at the time of the commencement of this action all of the property involved in this action had been released from the provisions and restrictions of the Burrs' agreements of 1857 and 1861. In referring to the conveyances of the property, it will be unnecessary to call attention to the reservations made on account of the Burrs' agreements.

the said Thomas T. Sturgess, his heirs and assigns, being owners of lots Nos. 2 and 4, and the said James S. Sturgess, his heirs and assigns, being owners of said lot No. 3 shall forever hereafter have and enjoy the use in common exclusive of all other persons of said lot No. 5 as a passageway for themselves, their servants or other deputy, either on foot or with horses, carriages, or otherwise to and from their respective lots aforesaid and to and from the stables built and to be built for private use on their said lots."

August 11, 1868, one John R. Ford (defendants Fords' testator) became the owner in fee simple of lots Nos. 7 and 3 and the one equal undivided third part of lot No. 5, subject to the conditions and restrictions contained in the Burrs' agreements. February 26, 1879, John R. Ford conveyed to Benjamin K. Kissam, Peter Augustus Embury, and Clarence D. Embury, trustees of the estate of Augustus Embury, lot No. 7 and also one equal undivided one-third part of lot No. 5, subject to the same conditions and restrictions.

The deed from Ford to Kissam and others following the description of the one-third undivided interest in lot No. 5 contained the following language: "Reserving, however, to the said party of the first part [Ford] the right of using said alley [lot No. 5] in the manner provided in agreement recorded January 2, 1864, Peter H. Morss was the [agreement of 1864]; it being the intention owner in fee simple absolute of lot No. 1; of parties of the first part thereto [Ford] to Thomas T. Sturgess was owner in fee simple convey to the parties of the second part absolute of lots 2 and 4; and James S. Stur- hereto all the rights, privileges and immunigess was owner in fee simple absolute of lot ties contained in the agreement recorded No. 3; Peter H. Morss and Thomas T. Stur- [agreement of 1864] except as hereinbefore gess were owners as tenants in common of reserved." Subsequently an action in partilot No. 6; and Peter H. Morss, Thomas T. tion was had and lot No. 7 and the one equal Sturgess, and James S. Sturgess were own- undivided third part of lot No. 5 was sold ers as tenants in common of lot No. 5, called under the judgment in partition by one the "Alleyway." Said lots and the dimen- | Charles A. Jackson as referee on June 28,

1888, to John E. Ellison.

The deed from the referee to Ellison described lot No. 7 and the one equal undivided one-third part of lot No. 5, and then followed the language: "Reserving, however, to the said party of the first part the right of using the alley in the manner provided in the agreement [agreement of 1864], it being the intention of the parties of the first part hereto to convey to the parties of the second part hereto all the rights, privileges, and immunities contained in an agreement recorded [agreement of 1864] except as hereinbefore reserved."

On March 1, 1881, Melissa Clementine Wilson became the owner of lots Nos. 1 and 6 and the undivided one-third part of lot No. 5. John R. Ford died seised of lot No. 3 prior to January 26, 1897. May 3, 1897, John E. Ellison by deed, referring to the partition action, the interlocutory judgment therein, the sale by Jackson as referee, and confirmation of same by final judgment and the conveyance by Jackson as referee to Ellison, did convey to Richard T. Wilson, who was the husband of Melissa Clementine Wilson, lot No. 7 and the one equal undivided one-third part of lot No. 5. This deed contained the following language: "And subject also to the right by that certain deed made by John R. Ford and his wife, dated February 26, 1879 [from Ford to Kissam], reserving to the said John R. Ford, his heirs and assigns, of using the alley [lot No. 5] in said deed referred to in the manner provided in the agreement recorded [agreement of 1864]; it being the intention of the parties of the first part hereto to convey to the party of the second part hereto all the rights, privileges, and immunities mentioned in said agreement, recorded ** [agreement of 1864] except as reserved as aforesaid to the said John R. Ford." May 14, 1897, Richard T. Wilson and wife, Melissa Clementine Wilson, conveyed the same premises to one Montgomery. The deed from Wilson and wife to Montgomery described the property as lot No. 7, and after the description of the one equal undivided one-third part of lot No. 5, also conveyed, continued: "Subject also to the right by that certain deed made by John R. Ford and wife dated February 26, 1879 [Ford to Kissam], reserving to the said John R. Ford, his heirs and assigns of using the alley [lot No. 5] in said deed referred to in the manner provided by the agreement recorded [agreement of 1864]; it being the intention of the parties of the first part hereto to convey to the party of the second part hereto all the rights, privileges, and immunities mentioned in said agreement recorded [agreement of 1864] except as reserved aforesaid to the said John R. Ford." On the same day Montgomery conveyed the premises to Melissa Clementine Wilson under a deed containing the same language above quoted. Melissa Clementine Wilson thereupon was the owner of lots Nos. 1 and 6 and one undivided one-third part of

also of lot No. 7, and one equal undivided one-third part of lot No. 5, under the latter deed referred to, and continued the owner of said premises down to the time of her death, May 3, 1908. Mrs. Wilson left a last will and testament in which she devised her property to her husband, Richard T. Wilson, who was the original plaintiff in this action. Mr. Wilson died before the trial, and his representatives were substituted as plaintiffs herein.

Under the will of John R. Ford the defendants John B. Ford, John Howard Ford, and James B. Ford, as trustees, etc., succeeded to the interest of the testator, John R. Ford, in lot No. 3 and any interest which he had in lot No. 5.

In 1907 the defendants Ford gave a lease of the property, lot No. 3, to the Fleischmann Realty & Construction Company, together with the right, title, and interest of the Fords in and to lot No. 5; thereafter the Fleischmann Realty & Construction Company assigned to the defendant Five Hundred and Seven Fifth Avenue Company its rights under the lease; the first-named company having erected on lot No. 3 a 12-story building for business purposes which occupied the whole lot.

In connection with the construction of the building by the company named, the employés of the contractors used lot No. 5 as a passageway from Forty-Third street to and from lot No. 3, and after the completion of the building continued to use lot No. 5 as a passageway for the use of the tenants of the building for business purposes until it assigned the lease to Five Hundred and Seven Fifth Avenue Company. The latter-named company has occupied lot No. 3 and the building thereon for business purposes, and in connection therewith has used lot No. 5 as a passageway from Forty-Third street to the building for foot travel and for wagons with merchandise and other materials, etc.

The building upon lot No. 1 was a private dwelling house occupied by Richard T. Wilson until the time of his death, November 26, 1910, subsequent to the commencement of this action; on the rear of that lot is a private stable, the entrance to the stable being from Forty-Third street across lot No. 6; there being no entrance from lot No. 5 to the stable.

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The building on lot No. 2 was a dwelling house occupied by Thomas T. Sturgess as a residence, but for a number of years prior to the commencement of this action had been used by various tenants for business purposes. On lot No. 4 there is a building formerly used as a private stable in connection with lot No. 2, but for a number of years it has been used for business purposes. The building on lot No. 3 was used for business purposes until the block was erected, commencing in 1901; there never was a stable. erected on lot No. 3. Lot No. 7 has for many

residential purposes, the westerly windows of which overlook lot No. 5.

The referee found in this case as conclusions of law that lot No. 3 had no present easement in or over lot No. 5, and defendants, whether as owners, lessees, or tenants of lot No. 3, had no easement of any kind in lot No. 5. Judgment was entered upon the report of the referee, which was affirmed by the Appellate Division, and defendants appeal to this court.

John M. Bowers, of New York City, for appellants Ford. David B. Ogden, of New York City, for appellant Fleischmann Realty & Construction Co. John G. Milburn, of New York City, for respondents.

HOGAN, J. (after stating the facts as above). [1] The agreement of 1864 recited the ownership by Peter H. Morss of lot No. 1, by Thomas T. Sturgess of lots .Nos. 2 and 4, by James S. Sturgess of lot No. 3, the ownership in common by Peter H. Morss and Thomas T. Sturgess of lot No. 6, and the ownership by Peter H. Morss, Thomas T. Sturgess, and James S. Sturgess as tenants in common of lot No. 5. The several lots mentioned were described in the agreement by metes and bounds, and the parties thereto did covenant and agree with each other and for and on behalf of the heirs and assigns of each party that the parties thereto and their respective heirs and assigns should forever have and enjoy the use in common exclusive of all other persons of lot No. 5 for the purposes therein mentioned. The agreement thus executed was recorded as a conveyance and was effectual as a grant to establish a perpetual easement in lot No. 5, which attached as an appurtenance to the remaining premises specified in the agreement.

John R. Ford became the owner of lot No. 3 and of one equal undivided one-third interest in the fee of lot No. 5, formerly owned by James S. Sturgess, and subsequently obtained title to lot No. 7, which, though adjacent to lot No. 5, had no right of use therein as it was not referred to in the agreement of 1864. February 26, 1879, Mr. Ford conveyed to Benjamin K. Kissam, Peter Augustus Embury, and Clarence D. Embury, trustees of the estate of Augustus Embury, lot No. 7, together with one equal undivided one-third part of lot No. 5. Following the description of the premises of lot No. 5, the deed contained the following language: "Reserving, however, to the said party of the first part [Ford] the right of using said alley [lot No. 5] in the manner provided in agreement recorded, etc. [agreement of 1864], it being the intention of parties of the first part hereto [Ford] to convey to the parties of the second part hereto all the rights, privileges, and immunities contained in the agreement recorded [agreement of 1864] except as here

The referee held that John R. Ford by the deed or conveyance of his undivided equal one-third of the fee of lot No. 5 in 1879 extinguished the then existing easement in favor of lot No. 3 under the agreement of 1864, excepting the personal right reserved to himself to use said lot No. 5 in the manner provided in the agreement of 1864.

[2] It is a well-established principle of law. that an easement in gross will not be presumed where it can fairly be construed to be appurtenant to land.

[3] Having in mind this rule of law, we pass to a consideration of the conveyance of Mr. Ford to Kissam and others in 1879, which must be construed as to give effect to the intent of the parties manifested by the language used, subject to the further rule that, when the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and the subject-matter of the instrument. French v. Carhart, 1 N. Y. 96; Bridger v. Pierson, 45 N. Y. 601; Blackman v. Striker, 142 N. Y. 555, 563, 37 N. E. 484; 3 R. S. (7th Ed.) pt. 2, c. 1, tit. 5, § 2, now incorporated in Consol. Laws 1909, c. 50; Real Property Law, § 240. Upon the argument of the appeal counsel indulged in extended discussion as to the probable intention in the mind of Mr. Ford at the time of the execution of the deed. It would not be profitable to analyze the arguments presented or to speculate as to the mental operations of Mr. Ford at that time.

[4] His intention, so far as ascertainable, should be determined from the various written instruments in connection with the acts of all the parties.

[5] In the deed from Ford to Kissam, the intention expressed by Mr. Ford was "to convey to the parties of the second part hereto all the rights, privileges, and immunities contained in the agreement." The rights and privileges contained in the agreement of 1864 were the right and privilege to use lot No. 5 as a passageway in the manner and for the purposes therein mentioned. The "immunity" in the agreement was the exclusion of all persons other than Mr. Ford, his heirs and assigns, and the remaining parties thereto, their heirs and assigns, from the use of lot No. 5. The intention of Mr. Ford thus expressed was an attempt upon his part to grant to lot No. 7 an easement in lot No. 5 for all the purposes and with the immunity mentioned in the agreement of 1864. We fail to find language expressly or by implication indicating any intention on the part of Mr. Ford to sever and convey any interest in lot No. 5 appurtenant to lot No. 3.

[6] On the contrary, there was disclosed an intention to convey a less estate than Mr. Ford had in lot No. 5 appurtenant to lot No. 3, for the deed contained a reservation to

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