Whether or not Eugene Wormell is entitled to relief in this proceeding is dependent upon the discovery of the intent of the testatrix as expressed in her will and codicils or deduced therefrom by process of construction as matter of law.

To understand the question the instruments should be presented in full, and they are as follows:

The general scheme of testatrix in the will was preserved in the codicil, which declares that she desired to preserve the general features of her former will, making new distributions made necessary by deaths occurring, since its execution ; that she preferred to do this by way of another codicil of her former will instead of executing a new will, but in any respect in which the last executed document should conflict with the first she declared her intent that the codicil should control, but otherwise the former should stand unaffected.

Now the question is, Are the provisions of this codicil which omit any allusion to Eugene Wormell consistent with *375 the claim upon his part that she did not design to revoke her bequest to him? This codicil is, in effect, a new will. Testatrix declared that for reasons she preferred to make a new will in the form of a codicil, and we should construe it in that view.

The general features of the old instrument are preserved, but the dispositions are somewhat, varied.

In each case she divided the residuum into fractions, but in the original will the parts were not symmetrically segregated, while in the codicil they were divided into fiftieths. This plan is perfectly plain, and by keeping it in mind any difficulty in divining her design will disappear. It does not require an express revocation to make the intent to revoke clear; it is sufficient that the intent to make a disposition of the estate in the new instrument which is inconsistent with the prior gifts is made as clear as the original.

Counsel for petitioners quote the decision in Re Ladd, 94 Cal. 674 , that a codicil is never construed to disturb the dispositions of the will further than is absolutely necessary to give effect to the codicil, and that a clear disposition made by the will is not revoked by a doubtful expression or inconsistent disposition in a codicil, and, taking this expression of the court in connection with section 1321 of the Civil Code, counsel deduces this truth.

In order to revoke a clear disposition in a will, the codicil must contain a provision that is not simply inconsistent, but one that is absolutely irreconcilable, with the disposition in the will.

Such a condition, counsel contend, is not presented by the case at bar, for the dispositions are not even inconsistent let alone irreconcilable.

Is it evident, as counsel contend, even upon the most casual consideration, that in this case there is no absolute necessity, nor any necessity, to disturb the bequest in the will to petitioner, in order to give effect to the codicil, and that, therefore, it must stand?

If this were as patent to the court as to the counsel, there would be no hesitancy in determining the issue in their favor, but that there is some lingering doubt in the mind of counsel as to the validity of their position is suggested *376 by their appeal to equity in one of their earlier briefs, in which they claim that there is no difficulty in carrying out the provisions of the will and codicil, for it is only necessary to ascertain the value of the estate after the payment of debts, expenses of administration and providing for the unrevoked general and specific bequest of the will, then deduct two-fiftieths, one for the .petitioner and the other for the children of Lettie Wormell Byron, and the, remainder constitutes the residue disposed of by the codicil and makes the petitioner substantially a general legatee under the will of an amount equaling one-fiftieth of the estate after the payment of debts, expenses of administration, and the payment of the other unrevoked general and specific legacies under the will, there being no reason why, in this manner, the petitioner may not receive the share given in the original will; “but if this cannot' be done, it is certainly within the equitable powers of the court to let the petitioner in to share equitably in the residue under the codicil, it being clear that it was the intention of the testatrix not to annul or impair the legacy given in the will.” All the grounds urged for Eugene Wormell apply with equal force to the Byron children. This court has no equitable power in the premises, and it is not clear that the omission of this Eugene Wormell and the children of Lettie Wormell Byron was an oversight of testatrix.

There is no room for the suggestion of an alternative. It is no case of equity. It is a matter for interpretation and construction; it is for the court to find out the sense in which the testatrix employed certain words; that is, the idea which she intended to convey by the use of certain expressions or terms, and to draw from the whole text a conclusion which shall construe the intent of the maker of the instrument. The object is not to make or mar or modify the testament, but to discover its sense; hence, the whole document is to be construed integrally. There is no case here for extrinsic evidence; and, consequently, the intimation of oversight must be resolved without recourse to that species of proof.

In their final brief counsel for Eugene Wormell repeat their suggestion of an alternative, but rely upon their primary proposition that petitioner has a clear right to the *377 legacy in the will, and that in her readjustment of the bequests in the codicil his name was omitted through oversight.

Counsel do not persist in the contention that there may be two residues, one for one purpose and another for another, but insist that they have consistently adhered to the position that there is only one residue to deal with; but they assert that the language of the codicil shows clearly that the testatrix used the word “residue” without understanding its exact meaning; that evidently the testatrix, in using this term in the codicil, had in mind not a residue in its technical, legal sense, but simply the remainder of her estate after the payment of debts and expenses of administration.

Residue or residuum, technically, is the remainder or that which remains after taking away a part; in a will, such portion of the estate as is left after paying the charges, debts, devises, and legacies, and the presumption is that the testatrix used it in this sense, and a contrary intention must clearly appear.

Considering the circumstances in which the codicil came into existence, it is hardly just to impute ignorance of the meaning of the word or lack of understanding of its legal import to testatrix. It was drawn, according to the record in the contest, by one of the counsel for respondent here (Mr. Galpin) from the instruction given to him by her; she gave the details of the devises and legacies, and he prepared the paper at her direction. If it were an instrument written by herself without legal assistance, there might be some reason in which to intimate her ignorance of the technical term, but that may not be done with impunity where there was a skilled draughtsman and expert lawyer.

The word “residue,” therefore, is to be taken technically, and no resort can be had to artificial aid in its interpretation when natural reason and the circumstances of its insertion make clear its meaning.

Counsel for Eugene Wormell argued that the purpose of testatrix clearly was to have paid out of that remainder all unrevoked legacies and bequests of her will and general legacies and bequests of the codicil, to which, in terms, the so-called “residue” in the mind of the testatrix was made *378 subject; then to have two-fiftieths of the remainder paid to Eugene Wormell and Lettie Wormell Byron, and then to dispose of the remainder, which would constitute the real residue, in fiftieths; and, counsel continue in this strain, that if all of this estate were reduced to cash, and all debts and expenses of administration paid, it would be in exact conformity with the codicil to pay, out of what remained, the unrevoked legacies and bequests of the will, and the general and specific legacies of the codicil, then to pay two-fiftieths of what remained, one to the petitioner and one to the children of Lettie Wormell Byron, and to distribute the remainder, which would constitute the actual residue of the codicil, in fiftieths; and counsel confess their entire inability to see how this simple course of carrying out what strikes them as the unmistakable intention and purpose of the testatrix would make two residues, which, it appears to be admitted, are repugnant to the law, if possible to mathematics.

This simple device would also, it is said, eliminate the need of the assumption of any equitable authority by the court, as such division would be plainly in pursuance of the plan adopted by the testatrix.

If it were the intent of the testatrix to cut Wormell off from her bounty, would she not have done the same with his interest as she did with some others, and expressly revoke her bequest to him, is the query of counsel, to which they return response that undoubtedly she would have so done, if that had been her deliberate design; but it will be asked in turn, Why did she not, then, carry him into the codicil? To this self-propounded interrogatory, counsel answer, that he may have been omitted from the codicil by oversight.

If mention were unnecessary, omission should be harmless, and conjecture useless.

Counsel aver their belief that it may have been the intention of testatrix to carry him into the codicil and to thus make him a sharer in her bounty in equal proportion with the other residuary legatees. If such were her intention, she never executed it, and how can he benefit by her failure to execute such fancied purpose? But is her omission, caused by an oversight, to be construed as an intention to deprive him entirely from sharing in her bounty? Or, con *379 tinue counsel, it may have been her actual intention to give Eugene Wormell and Lettie Wormell Byron two-fiftieths of the residue, and to divide the remaining forty-eight—fiftieths among the residuary legatees of the codicil; but all this is indulging the imagination to no practical benefit, for, as counsel finally admit, in any ■ event we must take her will as she made it and not as we fancy she might, could, would, or should have made it.

All of these speculations are, in a manner, interesting and some of them abstruse, but to this complexion do we come at last: Was there any intent at the time of making the codicil in the mind of the testatrix that Eugene Wormell should receive any part of the residue of her estate?

To resolve this problem we must resort to the will and codicils and confine ourselves to their terms.

By the former will one-fiftieth of the residue was bequeathed to Eugene Wormell of Livermore, Maine, and another fiftieth to Eugene Wormell of Seattle, Washington; by the latter every fiftieth is given to some person other than Eugene Wormell of Livermore, Maine, and in regard to the other Eugene, it is explained that he died in the interval between the dates of the two transactions. No mention is made in the codicil of Eugene Wormell of Livermore, Maiile, nor of Lettie Wormell, of Colorado, who had died on the 6th of October, 1892, five years prior to the date of the latter instrument. An inspection of the two papers shows that in preparing the codicil the order of the will was closely pursued; the variations serve to indicate an adherence to the text of the original; and in going down the line she passed over the names of “Eugene Wormell of Livermore, Maine, and Lettie Wormell of Colorado,” to whom she had given each one-fiftieth of the will, in nominal juxtaposition, and the necessary inference is that this departure from the sequence of names was designed and that she meant to omit them from her bounty.

It is manifest that the distribution of the codicil was intended to be a new one and a substitute for the old, while retaining the general form of the original, but the division was; different in fractions, names of donees, and amounts allotted to each and the quantity of residue distributed.

*380 The intent to make a disposition of the residue in fiftieths is clear to the court, and such an intent is inconsistent with the prior bequests made in the will to those whose names were not found in the codicil. The court has no authority to divide the residue under the codicil into fifty-two parts, and assign one part to Eugene Wormell and one part to the -children of Lettie Wormell Byron, for to do this would be to alter the disposition of testatrix and make for her a new will, which is beyond judicial power.

The claim of petitioner is inconsistent, in my judgment, with the plan of the testatrix, as outlined in the codicil, and no reasonable construction can reconcile the two propositions where the repugnance is so evident, and she herself has said that in any respect in which this codicil, should conflict with the provisions of her former will, she fully intended that the codicil should control, and this court is, finally, of opinion that it is executing her intention in letter and spirit by denying the prayer of petitioner, and it is so ordered.

The Principal Case was affirmed by the supreme court in 141 Cal. 485 , 75 Pac. 44 . The general rule is, that a codicil does not disturb the will, except so far as inconsistent with it or in terms or by necessary intendment revokes it: Estate of McCauley, 138 Cal. 432 , 71 Pac. 512 .