84 N.J. Eq. 135 | N.J. Super. Ct. App. Div. | 1915
This is an appeal from a decree of the orphans court of Cumberland county admitting to probate three certain instruments in writing; the first as the' last will and testament of Charles G. Diament, deceased, and the others as codicils thereto. The will bears date November 12th, 1902, the first codicil February 1st, 1911, the second codicil December 19th, 1912.
A third codicil was executed by testator in the latter part of August or the forepart of September, 1913, and its provisions and proper execution have been adequately established by the evidence taken before the orphans court, but the instrument has not been found and was refused probate as a lost will.
The present appeal is based on the contentions — first, that the third codicil should have been admitted to probate as a lost codicil, and second, that assuming the evidence adequate to support the finding of the orphans court that it was destroyed by testator animo revocandi, its execution and subsequent destruction were operative to revoke the former will and two codicils.
The conclusion of the orphans court, to the effect that testator destroyed the third codicil mimo revocandi, is clearly supported by the evidence. After its execution it was left with John S.
The well-recognized rule in cases of this nature is that when a will is proved to have been executed, and it cannot be found at testator’s death, if the will remained in his custody, or after its execution he had ready access to it, the fact that it cannot be found after his death raises a presumption that he had destroyed it animo revocandi. 30 Am. & Eng. Encycl. L. (2d ed.) 635; Jarm. Wills 133; see, also, In re Cunnion, 201 N. Y. 123. This rule has been expressly adopted by this court. In re Willett’s Estate (Vice-Ordinary Reed), 46 Atl. Rep. 519. This presumption may be rebutted, but there is in this case no, circumstance sufficient to rebut it; the testimony of testator’s two sons, touching conversations with their father, is clearly insufficient for that purpose, and the testimony already referred to substantially supports the presumption.
The remaining question is whether the destruction of the third codicil by testator with intention to revoke its provisions is operative to deny probate to tire will and two codicils already referred to.
At common law the revocation of a subsequent will which revoked, either expressly or impliedly, an earlier will, left the earlier will unimpaired. The reason for the rule appears to
In the present case, the will'of testator, dated November 12th, 1909, makes detailed disposition of his entire estate. By the eighth, ninth and tenth items of that will a life estate in certain real and personal property is given to Mrs. Eva M. Ewan, who. was housekeeper for testator, on condition that she remained with him until his decease; at her decease the property was given to testator’s heirs-at-law. The will also contains a re-' siduary clause in favor of the heirs-at-law of testator. Neither the first nor second codicil were designed to wholly revoke the will; the provisions of each are modifications of specific portions of the will and are designed to stand with the will as specific, modifications thereof. The third codicil, which was destroyed, was of like nature; it revoked the provisions of the will which are in favor of the housekeeper, but in no way revoked or superseded the will except as to the specific items referred to in the codicil. The situation thus presented prior to the destruction of the third codicil was that of an existing will making detailed disposition of all of testator’s estate with three successive codicils, each making specific modifications of the will, and each designed to confirm the will as modified by the codicils. It may be that the effect of the destruction of a codicil, so far as the specific provisions of the will to which the codicil relates are concerned, cannot be logically distinguished in principle from the destruction of a subsequent will which expressly or by necessary implication wholly revokes a former will; but when a codicil is regarded as a mere modifying instrument intended only to modify or change specific provisions of a will and designed to stand with the will as a mere amendment to or modification of its provisions, it is difficult to conceive the destruction of the codicil and retention of the will by the testator as other than the adoption of a convenient method of withdrawing or nullifying the amendment, even though no force be given to the underlying principle of the common law rule that a provision for revocation, express or implied, is purely testamentary in its inherent
But should inquiry be made into the intent of testator, the evidence in this case adequately establishes that intent. The will, and the three successive codicils, were deposited with a trust company by testator for safe keeping. Subsequently, testator withdrew from the depository the last codicil and destroyed it and permitted the will and two preceding codicils to remain with tire depository until his death. That circumstance appears to be uniformly treated as satisfactory evidence of an intention upon the part of testator to revive a former will which has been preserved by him in that manner. The evidence also disclosed that shortly before the death of testator he requested the officer of the trust company, already referred to, who had drawn the second and third codicils, to draw another codicil, to make specific disposition of some cash which had come to the hands of testator by reason of a security referred to in the original will having been turned into' cash. This proposed codicil was not executed by reason of the death of testator on the very day it was to be drawn.
I will advise a decree affirming the decree of the orphans court.