32 Misc. 2d 808 | N.Y. Sur. Ct. | 1962
This is a proceeding for an adjudication that decedent physically revoked his last will, that a codicil to this will he deemed revoked by reason of the cancellation and revocation of the will and for a decree granting letters of administration to the decedent’s widow.
Upon all the evidence adduced herein on behalf of the petitioner, the court is satisfied that the will in question was physically revoked by the decedent himself by cutting his signature therefrom with a scissors; that the cancellation by the decedent was accompanied by an intention to revoke and that at the time of recovation the decedent was imbued with the degree of capacity that is required for testamentation (Matter of Davis, 6 Misc 2d 10, affd. 5 A D 2d 811; Matter of Thompson, 190 Misc. 760; Matter of Ascheim, 75 Misc. 434).
It having been determined that the will was revoked, the court must now consider whether such revocation had the legal effect of revoking the codicil. There can be no doubt that under certain conditions even though a will has been revoked, a codicil to such will may be probated as an independent testamentary instrument (Matter of Francis, 73 Misc. 148). This is especially true in a situation where the codicil is entirely complete as a separate entity, and the carrying out of its provisions in no way depends upon the will to which it attempts to refer (Matter of Emmons, 110 App. Div. 701; Matter of Steiner, 142 Misc. 710).
This leaves for determination whether the codicil herein is so independent, complete and self-sufficient as to be capable of separate existence without the revoked will. An examination of the provisions of the will and codicil herein leads the court to the inescapable conclusion that these two instruments are so closely interwoven and interrelated that the codicil is unable to
Accordingly, the court holds that this testator cancelled his will with intent to revoke it, that the codicil herein was revoked by the cancellation of the will and that both papers must be denied probate. Letters of administration will issue to the petitioner upon filing an affidavit setting forth the assets in this estate to enable the court to fix the bond.
