and 122 New York State Reporter FORBES, J. This is an action brought under section 1819, Code Civ. Proc., to recover two legacies. The controversy arises over certain bequests made in the last will and testament of Dwight McIntyre, deceased. The clause to be construed reads as follows: "After all my lawful debts are paid and discharged, I give and bequeath the income of One Thousand Dollars to Mrs. H. E. Ward, for and during her natural life and leave to my executors that amount to be well and securely invested, in good and permanent securities, and the income thereof paid to her annually, and at and after her death, I give, devise and bequeath the said sum of $1,000.00 to the Old Ladies Home of Ithaca. I give, devise and bequeath the income of One Thousand Dollars to Mrs. E. Plummer of Ithaca for and during her natural life and I leave to my executors that sum to be invested as above directed and the income thereof to be paid to her annually and at and after her death, I give, devise and bequeath the said sum of One Thousand Dollars to the Old Ladies Home of Ithaca." After a specific devise to his sister Ann E. Van Netta of the homestead, and a bequest of $1,000 to his friend Perry C. Elsworth, the deceased gives the rest, residue, and remainder of his real and personal property to Ann E. Van Netta and John E. Van Netta, or the survivor of them. Then follows this clause: "And I request them and the survivor of them, at their death, to remember that worthy and benevolent institution, the Old Ladies Home of Ithaca, as one worthy of their bounty and one in which I feel an especial and kindly interest." The will is dated the 8th day of September, 1886. On the 15th day of May, 1888, the testator executed a codicil. The codicil reads as follows: "Codicil to my Will dated September 8th, 1886. I revoke the legacy bequeathed to Mrs. H. E. Ward and the legacy to Mrs. E. Plummer and give and bequeath to Mary A. Holman the sum of One Thousand Dollars." The plaintiff claims that this provision of the codicil does not revoke the legacies to the Old Ladies' Home, which is a part of the organization of the plaintiff corporation, to which, unless a revocation is intended by the testator, the sum of $2,000 must be paid. The question arises, first, whether by the terms of the codicil it was the intention of the testator to cancel and revoke these legacies and the vested remainders after the life estate of the individuals to whose use the income of each bequest was to have been devoted. If there is no ambiguity nor any inconsistency in or conflict between the provisions of the will and the codicil, then the construction of these provisions, read together, must be determined by the court, without the aid of any circumstance or evidence aliunde to explain the intention of the testator. Van Nostrand v. Moore, 52 N. Y. 12; Pierpont v. Patrick, 53 N. Y. 591; Newcomb v. Webster, 113 N. Y. 191, 21 N. E. 77; Redfield v. Redfield, 126 N. Y. 466, 27 N. E. 1032; Viele v. Keeler, 129 N. Y. 190, 29 N. E. 78; Kinkele v. Wilson, 151 N. Y. 269, 45 N. E. 869; Goodwin v. Coddington, 154 N. Y. 286, 48 N. E. 729; O'Donoghue v. Boies, 159 N. Y. 96, 53 N. E. 537. It follows, if, taking the whole will, and reading that with the codicil, the intention of the testator is left obscure and uncertain, then it is competent to resort to extrinsic evidence for the purpose of finding the real intention of the testator. Upon this theory a letter was introduced and received in evidence upon the trial. The letter does not attempt to make a new will. It does, however, explain the intention of an obscure provision of the codicil subsequently made. The intention may properly, in part, at least, be drawn from the provisions of the will and the codicil read together. The deceased was an unmarried man living in the city. of Ithaca, no doubt deeply interested in the charitable institution governed and managed by the plaintiff corporation. The Old Ladies' Home then existed and was largely made possible through the charities of Jane B. McGraw, who deeded to the plaintiff society the real estate now used for that purpose. After giving the residue and remainder of his real and personal property to his sister and her husband, the testator called their attention to his interest in the home, and, by a very strong suggestion, made a request in his will that at least a portion of his property might well be devoted to that charitable use. By the first provision in his will, it is true, he gave a life interest to Mrs. Ward and to Mrs. Plummer, with the remainder over to this branch of the plaintiff corporation. But by the provision in his codicil he seems to have confounded the bequest of the income of the $2,000 provided for in his will with the bequest of these legacies in remainder. over to the plaintiff corporation, first, by revoking the legacies instead of the income; then. bequeathing in the same clause $1,000 to Mary Holman, absolute. The provisions of the will and the codicil are certainly inconsistent, and it is doubtful whether taken together they express the true intention of the testator. The defendant is the survivor of Ann E. Van Netta, the deceased sister of the testator. He produced upon the trial a letter purporting to have been written by the deceased on the 12th day of May, 1888, three days before the execution of the codicil in question. The letter reads as follows: "Ithaca, New York, May 12, 1888. "To my sister, Ann E. Van Netta and her husband J. E. Van Netta: I made a will and left it in the care of Judge Elsworth. I intend to change it before going on my trip west. The bequest I gave to Mrs. H. E. Ward and to Mrs. E. Plummer I shall cancel and both bequests will come back to the estate. I will give to Mary Holman $1,000.00 and at any time you think best you can give the Old Ladies Home a bequest, but I request you not to give the Chamberlains one dollar. Dwight McIntyre." Without this explanation, the intention of the testator is very doubtful. If the letter produced is competent evidence, as a declaration of the deceased's intention, then that provision in the codicil is made plain. It certainly looks as though it was the intention of the deceased to revoke both legacies, as well as the use and income from the same, to the beneficiaries named in the first clause of the will. It can hardly be supposed that this intention was not in his mind when he speaks of those legacies, and then proceeds to give one-half of the whole amount so bequeathed to Mary Holman, an entirely different person. This intention on the part of the testator is further disclosed by another clause in the produced letter, in which he again refers to his interest in the Old Ladies' Home, and leaves it discretionary with his residuary legatees to carry out his object, by the following reminder: "I will give to Mary Holman $1,000.00, and at any time you think best you can give the Old Ladies Home a bequest." I am forced to the conclusion that it was the and 122 New York State Reporter intention of the testator to revoke the legacies and the remainders given in his will, leaving it to the discretion of his residuary legatees to act for him in case they, or either of them, should survive him. While this court would be only too glad to give an interpretation to the will and the codicil aiding this very worthy charitable institution to hold the benefit of these bequests, still, from the evidence, I am forced to the conclusion that it was the intention of the testator, disclosed by the circumstances and the instruments themselves, to place these bequests in the residuary clause, and give Mrs. Holman a legacy of $1,000 instead. The complaint must therefore be dismissed. Judgment accordingly. MOREL et al. v. STEARNS et al. (Supreme Court, Appellate Term. May 19, 1904.) 1. SALES DELIVERY-TENDER-SUFFICIENCY. Tender of goods on June 1st is not a delivery, within the terms of a contract providing for delivery in May, in the absence of proof that delivery was prevented by some act or omission on the part of the buyer. 2. SAME-ARRIVAL IN PORT. The mere arrival of goods at a wharf within the limits of a city, where delivery was to be made at a place therein to be designated by the buyers, does not constitute a delivery to the buyers, where they had designated a different place of delivery. Appeal from City Court of New York, Trial Term. Action by Marie J. E. Morel and others against John N. Stearns and others. From a judgment for plaintiffs, and from an order denying a motion for a new trial, defendants appeal. Reversed. See 84 N. Y. Supp. 521; 75 N. Y. Supp. 1082. Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ. SCOTT, J. This action arises out of the alleged failure of plaintiffs to deliver six bales of silk to defendants within the time specified in the contract between the parties. Plaintiffs are residents of France. Defendants are manufacturers having a place of business in the city of New York, and factories at Petersburg, Va., Williamsport, Pa., and Elmira, N. Y. The plaintiffs were represented in New York by the firm of Jardine, Matheson & Co., as their agents. The contract, which was in writing, was made in the city of New York, and provided for the sale of a quantity of Italian silk, "deliverable April & May 1900." The contract was entirely silent as to the place and method of delivery. The silk came to this country packed in bales, and all of it, except so much as was comprised in the six bales in controversy, duly arrived, and was delivered and accepted. The shipments, prior to this one, had been made in small lots, and the practice had grown up between the parties that, when plaintiffs' agents received the shipping documents, they notified defendants of their receipt, and asked for shipping instructions "so that we can deliver on arrival," and in each previous instance defendants had responded by directing that the bales be shipped to one of defendants' factories by the Old Dominion Steamship Line. Plaintiffs' agents would thereupon, at their own expense, and by truckmen of their own selection, deliver the bales to the steamship company in the city of New York. As all of these deliveries were well within the time fixed by the contract, the particular question involved in this action did not arise. It seems to be conceded by both parties, and is undoubtedly true, as a matter of law, that the contract was one calling for strict fulfillment as to the time of delivery, and that the defendants were justified in refusing to accept delivery after May, 1900, unless they had, by some act or omission, prevented the delivery within the time specified. On the first appeal to this court (75 N. Y. Supp. 1082) a judgment in favor of defendants, entered upon the direction of a verdict, was reversed because it did not sufficiently appear from the evidence that defendants had not rendered strict delivery impossible by delay in answering the request of plaintiffs' agents for the designation of a place of delivery. Upon the next trial a verdict was directed in favor of plaintiffs, and the judgment entered thereon was reversed (84 N. Y. Supp. 521) because the court had undertaken to decide questions of fact which should have been left to the jury. Upon the record now presented, there is really no controverted question of fact. Before considering the circumstances attending the attempted delivery of the goods in controversy, it will be useful to consider the situation of the parties, and their respective rights and obligations. As has been said, the contract called for delivery during April and May. The market price of silk had materially declined since the contract was made, and it was therefore to plaintiffs' interest to make delivery, and to defendants' interest that delivery should not be made. If the six bales should be tendered before the end of May, defendants would be bound to receive them, but they were under no moral or legal obligation to accept a tender of delivery after the end of that month. The goods were of a portable character, easily handled, and, in the absence of any designation in the contract as to the place of delivery, it was plaintiffs' duty to make such delivery at the defendants' place of business in the city of New York, or at such other place, not less accessible, as defendants might designate. La Farge v. Rickert, 5 Wend. 189, 21 Am. Dec. 209. The mere arrival of the goods at a wharf within the limits of the port of New York certainly did not constitute delivery to defendants. The course of business between the parties respecting prior shipments is chiefly significant as evidencing a recognition by plaintiffs' agents that their duty to make delivery was not fully performed when the goods arrived in port, but that it still remained incumbent upon them to make an actual, physical delivery at some place designated by defendants. This was no concession on their part, but merely an acquiescence in the obligation cast upon them by the law. The last six bales, over which this controversy has arisen, were shipped from Genoa, Italy, on May 17th, by the steamship Trave, which arrived at her dock at Hoboken, N. J., on May 29th. The invoice appears, by a stamp upon it, to have been received by Jardine, Matheson & Co., plaintiffs' agents, on May 28th. On the following day, May 29th, at 6:55 o'clock in the evening, the latter firm mailed a letter to defendants, advising them of the re88 N.Y.S.-27 and 122 New York State Reporter ceipt of the documents for the six bales of silk, and asking shipping instructions, stating that the bales were on the steamship Trave, “due today or to-morrow" (May 29th or 30th). May 30th, known as "Decoration Day," was at that time, by law, a dies non only so far as concerned the maturity of negotiable paper, and the transaction of business in the public offices of the state and county. It was, however, generally observed as a holiday by business houses, and partially observed by the post office, which undertook to make but one delivery on that day. The places of business both of Jardine, Matheson & Co. and of defendants were closed, as well as the offices of the steamship company, and the ship was unable to make her entry at the customhouse until May 31st; no deliveries of cargo being made until after such entry. In consequence of the observance of May 30th as a holiday, defendants did not receive the notification from Jardine, Matheson & Co. until 9 or half past 9 o'clock on the morning of May 31st, the last day allowed by the contract for the delivery of the silk. They at once replied, sending by a special messenger a notification that they wished the silk delivered on that day at their warehouse on Greene street, in this city. Some hours afterwards, Jardine, Matheson & Co. employed a public truckman, and instructed him to get the goods from the ship and deliver them to defendants. In anticipation of a possible delivery, defendants kept their warehouse open later than usual; but no tender of delivery was made until June ist, when defendants refused to receive the goods on the specific ground that the time for delivery under the contract had expired. Clearly the plaintiffs were in default, and it is equally clear that they were placed in default by no act or omission to act on the part of defendants. It was the defendants' right to demand delivery at their warehouse, and the fact that they had directed prior deliveries to be made at the dock of the Old Dominion Steamship Company did not bind them to receive this particular silk at the same place. Even if it had so bound them, there is nothing to show that the change in the place of delivery affected in any way the time of delivery. The same causes which prevented delivery at defendants' warehouse on May 31st would have equally prevented delivery at the Old Dominion Dock, and these causes were not of defendants' making. Nor are the defendants chargeable with having caused the delay because they failed to keep their office open on May 30th, so as to receive the letter of Jardine, Matheson & Co. on that day. Nothing would have been gained if they had kept open and had received the letter. The office of Jardine, Matheson & Co. was also closed, so that no reply could be given to them. The ship had not entered at the customhouse, and no deliveries were made on May 30th. On the other hand, it is not easy to acquit plaintiffs' agents of negligence. They must have known the terms of the contract, the fall in the price of silk, and the consequent importance of strictly performing the contract; and they must have been aware of the general observance of Decoration Day as a holiday, because they closed their own office on that day. If they received the invoice on May 28th, why did they delay notifying the defendants until late in the afternoon of May 29th? And after they had received delivery instructions early on the morning of May 31st, why did they delay several hours in sending a truckman for the goods? To these questions no |
