2 Mills Surr. 285 | N.Y. Sur. Ct. | 1901
The testatrix died at the city of Albany, N. Y., on the 11th day of December, 1900. The petitioners herein presented for probate a paper alleged by them to be her last will and testament, bearing date the 6th day of July, 1897, together with a codicil thereto executed on the 7th day of December, 1900, four days before her death. After taking the depositions of the subscribing witnesses to the paper executed in 1897 and the codicil thereto, and before the entry of the decree admitting the will to probate, the petitioners filed in this court another paper purporting to have been executed by the testatrix on the 19th day of July, 1899, by the express terms of which she assumed to devise and bequeath all of her estate, and to revoke all previous wills by her made. A supplemental citation wasi thereupon issued to all parties in interest, and the depositions of the subscribing witnesses to said instrument were taken. The matter for me, now, to determine is, which is the last will and testament of said deceased. The estate involved aggregates about $135,000. I find that, at the time of the execution of these different instruments, they were executed with all the formalities prescribed by law, and that, iat the time of the execution of each, the testatrix had sufficient testamentary capacity, and was not under any undue influence. The different instruments are all in the handwriting of Mr. David A. Thompson, of the firm of Thompson & Andrews. It appears, from the testimony, that,
“ Codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897.”
By the first item of her codicil, she authorizes the Albany Hospital to use the sum of $50,000 theretofore bequeathed to it in any way to secure the maintenance of a separate ward in said hospital for the treatment of cripples, and revoked the provision for the erection of a separate and suitable building contained in her former will. By the second item of the codicil, she revoked the sixth clause thereof with reference to the erection of a monument to the memory of Sir Walter Scott, and then proceeded to make a number of pecuniary bequests to her relatives and friends. The will executed in 1899, by its provisions, revoked the will of 1897; the will of 1897 also contains a clause revoking all existing wills, but there is no revocation clause in the codicil. By the will of 1897, The Albany Historical & Art Society was bequeathed the sum of $5,000, and, in addition thereto, certain curios and valuable books; by
The will of 1897 was revoked by the will of 1899, and the question now to be considered is whether the execution of the codicil to the will of 1897 revives it and makes it speak as of the date of the publication of the codicil of December 7, 1900. I have reached the conclusion that the rule of law determining this matter is set forth in the case of Brown v. Clark, 77 N. Y. 369. In that case the testatrix, while unmarried, executed a will, and after her marriage executed a codicil to it, and by its ■ terms reaffirmed the will, and the court there held that the codicil, having been executed with all the formalities required
And tbe court, further commenting upon tbe case in Van Cortlandt v. Kip, says: “ This case seems to be a direct authority that tbe due execution and publication of a codicil is, under tbe Revised Statutes as it was prior thereto,' a republication of tbe will to which it refers. Tbe codicil in this case refers to tbe will and expressly adopts and reaffirms it. Tbe testatrix by publishing tbe codicil, published the will, wbicb was clearly identified by tbe reference in tbe codicil and tbe extrinsic proof. It is established by a long line of authorities that
And again it was held, in Matter of Miller, 11 App. Div. 337, that, “ It is a well settled principle that a will and codicil are to be considered together as one instrument; that a codicil duly executed referring to a will is a republication thereof, and the effect of such republieation thereof is to bring down the will to the date of the codicil.”
Again, in Brown v. Clark, quoting from 1 Jarman, 78, I find the following: “ ‘ A codicil duly attested communicates the efficacy of its attestation to an unattested will or previous codicil so as to render effectual any devise of a freehold estate which may be continued in such prior unattested instrument/ And further on, speaking of the incorporation of documents by reference in the will, he says that this is permitted, ‘ without violating the principle of the enactment, which requires an attestation by witnesses, the testator’s intention to adopt the contents of such instrument being manifested by a will duly attested/ ”
So that, in accordance with the authorities above cited, in my judgment, the will of 1897 and the codicil of 1900 constitute one instrument, and speak of the date of the execution of the codicil on December 7, 1900, and such being the case, and the will of 1897 containing a clause revoking all former wills by her, I hold that its effect is to revoke the will executed in 1899. I have reached a conclusion in this matter contrary to what I anticipated at the time the matter was submitted to me, but, after a close reading of the case of Brown v. Clark, I am unable to arrive at any other result. Findings can, there
Decreed accordingly.