will, Miss Barnard delivered to Mr. Richards a note stating that she wanted to give certain of her personal effects to specified relatives, and instructing him to see that her wishes were carried out.

On this résumé of the proofs it will be seen that there is not a scintilla of evidence upon which to base a claim of any influence of any kind being exerted by Miss Douglass upon Miss Barnard in respect to making a will in her favor. There is not an iota of proof that Miss Douglass, either directly or through any third party, ever so much as suggested to Miss Barnard that a new will be made. The most, and all, that Miss Douglass said was that she was unwilling to keep Miss Barnard under the present arrangement. In making this statement she was well within her rights, and the sentiment expressed in it was by no means unreasonable. The circumstance of its utterance shortly after the making of the earlier will cannot be regarded as changing a natural and reasonable statement into a threat or an instrument of coercion.

I am satisfied that the recitals in the agreement of March 14, 1911, are a true statement of the considerations which influenced Miss Barnard in entering into the arrangement in question, and are a correct picture of her mental attitude at the time. It appears from them that she was more concerned with making proper provision for maintenance and care during the sunset of her life than in hoarding her slender resources for the enrichment of those who, while professing solicitude for her welfare, lacked either the disposition or the ability to provide her with those creature comforts which her necessities so imperatively demanded. I am also satisfied that Mrs. Eddy and Mr. Richards, in expressing to Miss Barnard their approval of the proposed arrangement, were actuated by the worthiest motives. They were anxious that Miss Barnard should discharge her primary duty of insuring to herself a home for the balance of her days, and her secondary duty, if her resources survived her, to requite in some measure Miss Douglass for the services she had previously rendered, and for which she had not been adequately compensated.

[2] In conclusion, I can discover no reason for denying probate, and a decree should be entered admitting the will to probate, with costs to the proponent payable out of the estate. The suggestion that has been made that costs should be awarded personally against the contestants I cannot agree to. I do not question that the contest was initiated in good faith.

[3] The fact that this will was executed so soon after another will of a different character justified the next of kin in a searching investigation into the circumstances, and my desire not to hamper in any way such an inquiry is the reason for permitting what might seem from an inspection of the record as an overwide latitude to the able counsel for the contestants in the examination of witnesses.

(77 Misc. Rep. 41.)

In re RANDALL'S WILL.

May, 1912.)

(Surrogate's Court, Cayuga County.

1. WILLS (8 471*)-CONSTRUCTION-CONFLICTING CLAUSES.

Where there are inconsistencies in a will, the court must, if possible, so construe it as to give effect to every provision; but, where two clauses or parts are so irreconcilable that they cannot possibly stand together, the later clause will prevail.

[Ed. Note. For other cases, see Wills, Cent. Dig. § 989; Dec. Dig. § 471.*]

2. WILLS (8 732*)-CONSTRUCTION-CONFLICTING CLAUSES.

Where a will left to testator's wife all his personal estate and the life use of his real estate, with remainder to nephews and nieces, the personal estate must satisfy legacies by subsequent clauses of the will.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1732-1737, 18011818; Dec. Dig. § 732.*]

Proceeding for probate of the will of George Randall, deceased. Probate decreed.

C. G. Blaine, of Lyons, for proponent.

Arthur E. Blauvelt, of Auburn, for certain legatees.

WOODIN, S. The construction and effect of the last will and testament of George Randall, deceased, which has been filed for probate, has been put in issue, and the surrogate is asked to determine the question, pursuant to the provisions of section 2624 of the Code of Civil Procedure.

The decedent was 64 years of age at the time of his death, which occurred in June, 1911. The will is dated June 12, 1905, and was drawn by an attorney, who superintended its execution and is one of the subscribing witnesses. The decedent was survived by his widow, Frances Randall, one son, George Randall, also several brothers and sisters, who are named as legatees in the will. The widow was the decedent's second wife, and the will was executed soon after their marriage. The material portion of the will reads as follows:

"Second. I give and bequeath to my wife Frances Randall, all of my personal property to have and to hold forever.

"Third. I give, devise and beneath to my wife, Frances Randall, all my real estate to have and to hold for and during her natural life and at her death to go to the children of William Randall, Thomas Randall, Jane Purser and Sarah Warne.

"Fourth. I give, devise and bequeath to William Randall and Thomas Randall the sum of one thousand dollars each.

"Fifth. I give, devise and bequeath to my two sisters, Jane Purser and Sarah Warne, to each the sum of one thousand dollars.

"Sixth. I give and bequeath to George Randall the sum of twenty-five dollars."

It will be noted that by the second and third clauses the testator apparently disposes of his entire estate; the second clause giving the wife all the personal estate, and the third clause giving her the life use of the real estate, with the remainder over to the children of his brothers and sisters. Then follow the three clauses disposing of $4,

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

025 in legacies to his brothers and sisters and son. This creates an apparent inconsistency, and full force and effect cannot be given literally to all the provisions of the will.

The widow asserts that under the second and third clauses she is entitled absolutely to all the personal estate and the life use of the real estate, and that the legacies given in the later clauses are either void or should be paid out of the real estate after her death and urges the application of the rule that, whenever a will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention in that direction as the prior part does to make it. This is controverted by the legatees, who maintain that their several legacies are first payable out of the personal estate; the widow taking the balance. The decedent left an estate of the estimated value of $13,000, of which $7,500 is personal and $6,000 real estate.

[1] The underlying principle in the construction of a will is that the intention of the testator, as expressed in the will, shall control, if not inconsistent with rules of law; and all other rules are subservient to this. In reading this will, it cannot be urged seriously that the testator did not intend to give his brothers and sisters $1,000 each and his son $25; and in making these bequests it would be doing him an injustice to assume that he was aware or understood that he had already effectually disposed of all his property. The construction of the will which would nullify three clauses is to be avoided, if possible to do so. Where there are inconsistencies in a will, it is the duty of the court, if possible, to so construe the will as to give effect to every provision; but the rule seems to be clear that, where two clauses or parts are so irreconcilable that they cannot possibly stand together, the later clause will prevail as indicating the subsequent intention. Van Nostrand v. Moore, 52 N. Y. 12; Kurtz v. Weichman, 75 App. Div. 26, 77 N. Y. Supp. 964.

[2] Although the will may begin with a bequest of all the personal estate to the widow, yet that bequest may be qualified by subsequent provisions. The bequest to her of the personal estate is in general terms. The bequests in clauses 4, 5, and 6 are in distinct terms, specifying definite amounts. The personal estate is the primary fund out of which the debts, funeral expenses, and general legacies are payable, unless a contrary intent is to be gathered from the will.

It seems to me that a fair and reasonable interpretation of the will is that the second clause should be taken to mean a gift to the wife of all the personal estate, subject, however, to the payment of the debts and the general legacies. This construction still leaves a liberal provision for the widow, namely, upwards of $3,500 of personal property and the life use of the farm. I believe it also appears that she has a farm of her own in Seneca county, on which she and the decedent resided part of the time. This construction gives some effect to all parts of the will, and is in harmony with the rule stated in Van Nostrand v. Moore, supra.

A decree of probate may be entered, construing the will accordingly.

Probate decreed.

(77 Misc. Rep. 592.)

BOSSERT et al. v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA et al.

(Supreme Court, Special Term, Kings County. September 25, 1912.)

1. INJUNCTION (8 223*)-VIOLATION-ACTS CONSTITUTING.

An injunction restraining the representatives of a carpenters' union from conspiring to interfere with the good will and business of a firm employing nonunion men, and to coerce the firm into employing union labor, is not violated by a representative of the union informing union employés engaged in the construction of a building for a third person that they are handling nonunion material, but leaving to the men the voluntary determination to remain at work or leave as they see fit.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. 223.*]

2. TRADE UNIONS (§§ 1, 4*)-RIGHT TO FORM UNIONS.

Laborers may form a union and agree that they will not work with nonunion material, and it is not illegal to expel a member for his refusal to abide by the rules of the union; and it is only when a labor organization seeks to injure a nonunion manufacturer that the law is violated. [Ed. Note. For other cases, see Trade Unions, Cent. Dig. §§ 1, 3; Dec. Dig. §§ 1, 4.*]

3. INJUNCTION (§ 223*)-VIOLATION-ACTS CONSTITUTING.

An injunction restraining representatives of a labor union from interfering with the business of a firm employing nonunion labor, to coerce the firm into employing union labor, is not violated by a representative of the union informing the union men employed by a third person that they are working on nonunion material, and that by continuing to work on such material they violate the rules of the union, for which they will be fined, since such act does not amount to force, threats, or intimidation, though the men quit work on such material, provided the act is done for the purpose of advancing the interests of the union and its members, and not for the purpose of interfering with the good will and business of the firm.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. 223.*]

4. TRADE UNIONS (§ 1*)-STATUS-RIGHTS OF LABORERS.

Where the object of a labor union or the purpose of its action under its rules is principally the malicious injury of another or his property, the agreement forming the union is a common-law conspiracy; but where the purpose is only to advance the interests of the members of the union, the union is not illegal, and its rules may legally be enforced, provided the members are left free to leave the union and work as they please.

[Ed. Note.-For other cases, see Trade Unions, Cent. Dig. § 1; Dec. Dig. 1.*]

Action by Louis Bossert and another against the United Brotherhood of Carpenters and Joiners of America and John Rice. On motion to punish defendant John Rice for contempt for violating an injunction. Denied.

Walter Gordon Merritt, of New York City, for plaintiffs.

Charles Maitland Beattie and William P. Maloney, both of New York City, for defendant.

CRANE, J. The firm of Goldberg & Smith were constructing under contract with the owners a building at the junction of Monroe and

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 137 N.Y.S.-21

Grand streets, in the borough of Manhattan. Louis Bossert & Son were furnishing, under contract with Goldberg & Smith, all the woodwork for said building, such as doors, sashes, window frames, and trim. John Rice was the agent and organizer of the United Brotherhood of Carpenters and Joiners of America, a labor union consisting of about 200,000 members, of whom about 40,000 worked in union mills and the others on buildings installing trim. Said Rice is now an agent and officer of this Brotherhood, which has a joint district council in New York and vicinity. It is a rule of the Brotherhood or union that the members who work on buildings will only work on the trim made by their own members in union mills. If members violate this rule or mutual agreement, they are subject to a fine of $10. The carpenter mill of Louis Bossert & Son did not employ union men or members of the Brotherhood of Carpenters. Consequently the members of the Brotherhood engaged to work upon the building heretofore mentioned refused to work upon learning that the trim and woodwork to be furnished them was nonunion work. An injunction has been obtained in an action brought by Louis Bossert & Son against John Rice and others, representing the Brotherhood of Carpenters, enjoining each and all of them

"from conspiring, combining, or acting in concert in any manner to injure or interfere with the good will, trade, or business of the plaintiff's copartnership, for the purpose of coercing plaintiffs to employ union labor either, first, by sending to any customer or prospective customer of the plaintiffs any letter, circular or communication, printed, written, or oral, which in terms or by inference suggests that labor trouble will follow the use of materials purchased from plaintiffs, or from any person, firm, or corporation declared unfair, or whose material does not bear the union label, meaning plaintiffs thereby; or second, by ordering, directing, requiring, or by compelling by any by-law, rule, or regulation, or any act thereunder, any person whatever to refrain from or cease working for any person, firm, or corporation because they used material purchased of or furnished by plaintiffs, or by any person, firm, or corporation declared unfair, or whose materials [sic] does not bear the union label, meaning plaintiff thereby. But nothing herein contained is to be construed to prevent peaceable strikes, except those directed against customers or prospective customers of the plaintiffs, for the purpose of interfering with the good will, trade, or business of the plaintiff's copartnership."

Subsequently to the obtaining and service of this injunction the defendant John Rice went to the building in question and spoke to members of his Brotherhood at work on the nonunion trim, who thereupon ceased work. This motion is made to punish the said John Rice for contempt in having violated the injunction and illegally interfered with the plaintiff's business.

[1] If these carpenters to whom Rice spoke voluntarily left their work, without any compulsion from Rice or his organization, there was nothing wrongful in his acts. The courts cannot compel men to work, and they can leave for any reason they see fit, or without reason; and if it be that the carpenters in this case desired to comply with the rules and regulations of their Brotherhood, there is no law that can prevent them, or could prevent Rice from informing them that the trim was nonunion material. The injunction quoted from does not restrain such deeds, as the act prohibited must be under some compelling or directing by-law, rule, or regulation of the union. This