Delafield agt. Holbrook. There is no more authority for making the agreement to purchase predominate over and absorb the contract of guaranty, than for making the latter, which comes first, control the former. The " value received" was stated to be for the guaranty, and not for the agreement to purchase. If the order had been inverted, placing the contract for purchase first, so as to have read, "I will buy such a bond at such a price, on such a day, if offered to me, whose value I guaranty shall be such a price," would the last part be rejected as surplusage? Did any one ever before draw a simple agreement to buy in the form in which this instrument is drawn, placing the main idea last, and thrusting in a guaranty before it? I cannot doubt that the legal effect of every word of the instrument expressed the intention of the parties, and was necessary to do so. Interpreted as a double agreement, the object is very plain. It is not to be assumed that the defendants' testator believed or expected the bond mentioned would be entirely worthless. He wished the plaintiff to retain it in his possession for two years; he therefore guarantied that the value should be a certain sum at the end of that time. This would, however, give the plaintiff the right to recover only the difference between the actual and claimed value, retaining the bond; but he intended to give the plaintiff the option to recover the whole of the sum named on giving up the bond, if he preferred it. A mere agreement to sell and buy would deprive the plaintiff of the right of retaining the bond, being indemnified against loss. Besides, such an agreement would require the plaintiff to tender on the day, which he might not be able to do, (see Howard agt. Holbrook, ubi sup.,) whereby the defendants' testator would escape all liability; whereas the liability on a contract of guaranty would be fixed on the day named, and could not be increased or diminished afterward. I do not consider it very hard that the bond, on being Delafield agt. Holbrook. paid its inferiority of value to the sum named, should be retained by the plaintiff. What the value received was that induced the defendants' testator to agree thereto does not appear; he may have sold the bond to the plaintiff at the price at which he agreed to take it back, and in such case he ran the risk of its falling in value, instead of the plaintiff. It is sufficient that the defendants' testator agreed that the plaintiff might so retain such bond, receiving the difference of its value. I am opinion, therefore, that the plaintiff should retain his verdict for the amount which has been given in his favor, and have judgment for the amount, with costs. WHITE, J., Concurred. BARBOUR, J., dissenting. The words "for value received," in an instrument of this kind, undoubtedly express a sufficient consideration to support it. (Howard agt. Holbrook, 23 How. Pr. R., 64.) The sole question for consideration, therefore, is, whether the offer of the note to Holbrook for purchase, at the time, in that regard mentioned in the contract, was a condition precedent to a recovery under the guaranty. The counsel for the plaintiff claims that two distinct and several undertakings on the part of the obligee are embraced in the contract in this case; one being purely a warranty that the bond shall be worth $960 upon a certain day, and the other, an undertaking by Holbrook that on the day designated he will buy it for that sum, if offered to him; and that the defendants had a right, either to present the bond and require Holbrook to purchase it, or to proceed against him upon the guaranty without such presentation. Upon an examination, however, it will be found that the contract signed by Holbrook consists of one continuous sentence, not susceptible of a division, and it appears to me to contain but a single proposition or undertaking, to wit, a guaranty on the part of Holbrook that the bond shall be worth $960 to the plaintiff and his then part Delafield agt. Holbrook. ner, at the end of two years from that date; which undertaking he agreed to perform so as to render the same effective in a particular manner, that is, by purchasing the bond if presented to him for that purpose, on the day mentioned in the agreement, and paying therefor the amount he had covenanted it should be then worth. This construction, I think, is perfectly consistent with the probable design and intention of both parties. The obligors, clearly, designed nothing further than to receive $960 for their bond; for that is all they would be entitled to under either construction. The mere guaranty secured to them that, and the provision for the purchase of the instrument was therefore worthless to them. But it is quite reasonable to suppose that Holbrook designed, at the time he signed the guaranty, to provide for his own safety against loss by selling the bond to some one else conditionally during the two years which were to elapse before he was to pay for it, or that he hoped to realize something on the sale of the bond at some future time, in case he should be compelled to purchase it, and it is difficult to believe that the parties designed to permit the obligees to deprive him of this very equitable right, at their option, by retaining the bond in their own hands after they had received from him its full value. I am of opinion, therefore, that the contract signed by Holbrook, must be considered as simply an agreement to purchase the bond at the price fixed, provided it should be presented to him for that purpose, on the 7th of March, 1855, and that such presentation was necessary to entitle the plaintiff to recover against Holbrook or his personal representatives upon the contract. In this view of the case it is unnecessary to consider what would have been the duty of the plaintiff as obligee in a mere covenant of guaranty. The verdict should therefore be set aside as contrary to evidence, and a new trial granted, with costs, and costs of appeal. Myres agt. Myres. SUPREME COURT. THOMAS M. MYRES and another, executors, &c. agt. DUDLEY MYRES and others. Construction of a clause in a will.-The testator, Isaac Myres, in the seventh clause of his will, made a bequest in these words: "Seventh. I give, devise and bequeath unto my son Thomas M. Myres, and the heirs of my son Melancthon W. Myres, and their heirs forever, all the rest and residue of my real and personal property of whatever name, to be equally divided between my son Thomas M. Myres and the heirs of my son Melancthon W. Myres:" Held, that there being nothing in any other portions of the will suggesting any different understanding of this clause than must be given to it in a separate reading, it gives the property to Thomas M. Myres and the five children of Melancthon W. Myres in six equal parts; that is, the beneficiaries under this clause of the will take per capita and not per stirpes. Saratoga Special Term, March, 1862. THIS action is brought to obtain construction of the will of Isaac Myres, deceased. W. A. BEACH, for plaintiffs. L. B. PIKE, for defendants. BOCKES, Justice. The question arises under the seventh clause of the will, which reads as follows: "Seventh.-I give, devise and bequeath unto my son Thomas M. Myres, and the heirs of my son Melancthon W. Myres, and their heirs forever, all the rest and residue of my real and per-. sonal property of whatever name, to be equally divided between my son Thomas M. Myres and the heirs of my son Melancthon W. Myres." The heirs of Melancthon W. Myres, alluded to in the will, are his children Henry W. Myres, John Myres, William O. Myres, Dudley Myres and Dorcas Myres. The defendant, Abigail Myres, is the widow of Melancthon, who, by the will, was to have "her support out of the legacies bequeathed" to Melancthon's children, so long as she should remain his widow. Myres agt. Myres. Under the clause of the will above set out, Thomas claims that he is entitled to one-half of the residue and remainder of the property of which the testator died seized, after satisfying all other legacies and bequests, and that the heirs of Melancthon take the other half-whereas such heirs claim and insist that the entire residue and remainder should be divided into six equal parts, of which Thomas is entitled to one part, and they to the other five. The question is, therefore, whether, by the true construction of the will, the beneficiaries under the seventh clause take per stirpes or per capita. On the trial an offer was made by the plaintiff to show by parol, that the testator intended that they should take per stirpes, which offer was rejected. This ruling was manifestly correct. The will is in no respect ambiguous. It must receive construction according to the fair import of its terms. It was held, in Arthur agt. Arthur, (10 Barb., 9,) that parol evidence was inadmissible to control or explain the intention of the testator, or to vary the legal construction of the will. The cases on this point are collected in Arthur agt. Arthur, (see p. 16,) and are entirely conclusive. (See also Mann agt. Mann, 1 John. Ch., 231; Baum agt. Stone, 1 Sand. Ch., 357.) The will must therefore be taken to express the intention of the testator, and his intention is to be collected. from the words of the will. What, then, was his intention, under a fair construction of the language employed to express his purpose? It is sometimes the case that other portions of a will throw light on the particular clause to be construed; in which case the whole instrument must be read together, and the will must be so rendered as to carry out the scheme of the testator, in the disposition of his property, in all its parts. By this mode of examination the intention is determined. But I am unable to discover anything in the other portions of this will which suggests any different understanding of the seventh clause than must |