In re of Proving the Last Will & Testament of Campbell

This was a proceeding for the probate of a will and of a codicil of Ellen Campbell, deceased, and it therein appeared that she had executed, at different times, and there were existent, two wills and a codicil. On July 6, 1897, one will was executed: on July 19, 1899, another will was exe_ cuted and on December 7, 1900, an instrument was executed by the testatrix, which declared itself to be a “ codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897.” The Avill of 1899 modified, or changed, the provisions of the will of July, 1897, in respects relating to legacies given and in giving new legacies. Each of these wills was executed with the requisite statutory formalities and contained the usual revocation clause. The codicil of 1900 modified some provisions of the will of 1897, *86 expressly revoked others and added some legacies. It made no reference to the will of 1899. The will of 1897 and the codicil thereto of 1900 were admitted by the surrogate to probate, as constituting the last will and testament of the deceased; while the will of 1899 was refused probate, as having been revoked. The conclusions of the surrogate in those respects were unanimously affirmed by the Appellate Division and the Home for Aged Men, a legatee under the will of 1899, appeals to this court from the decision below.

Although it is found as a fact by the learned surrogate that the testatrix, by the execution of the codicil in 1900, republished her will of July, 1897; nevertheless, the finding is, in its nature, a legal conclusion from the facts and the question of law is in the case. It is contended, on the part of the appellant, that the statutory provisions with respect to .the destruction, cancellation and revocation of a will, are applicable to the present case. (1 R. S. chap. 6, tit. 1, art. 3, sec. 53.) They, clearly, are not. Whether the earlier will was revived by the destruction of a later will is not the question; nor does the validity of testatrix’s action with respect to the prior will depend upon verbal declarations, as in the Matter of Stickney (161 N. Y. 42). The question is whether the execution by the testatrix of the codicil revived and republished the earlier will of 1897, a completely executed and existent instrument, so that the two instruments, together, constituted the final testamentary disposition of her estate. That such is, generally, the effect of a codicil and that the will thereby republished speaks from the date of the codicil is a proposition settled upon authority. (Van Cortlandt v. Kip, 1 Hill, 590; Brown v. Clark, 77 N. Y. 369; Matter of Conway, 124 ib. 455.) That there intervenes, between the will referred to in the codicil and the codicil itself, another will, executed by the testatrix and, in terms, revoking other wills, does not affect the result; because the codicil to the earlier will implies its existence and effects, impliedly, if not expressly, the revocation of the intermediate will. Of course, there can be no question that the purpose of the testatrix was to re-establish her earlier *87 will; for the title given to the instrument, its subject-matter and the circumstances of its preparation, with the will before her, clearly indicate it. Equally clear, too, should it be that the testatrix purposed the abandonment of her second will. There is no reason in the law why her manifest purpose should not be given effect. The object of the Statute of Wills is to effectuate that which is proved to be the last will of a deeeased person. To that end, it prescribes certain formalities of execution, whereby the possibility of imposition, or of fraud,. is minimized. When a codicil is executed with those formalities, it is a final testamentary disposition and the will, to which it is shown to be the codicil, if itself an existent and a completed instrument, according to the statute, is taken up and incorporated; so that the two taken together are deemed to, and necessarily do, express the final testamentary intentions. In such a case, it must, logically and manifestly, follow that any other will, or codicil, prior in date to the codicil in probate, is revoked and the presence of express words to that effect, in the codicil, is unnecessary. (See 1 Williams on Executors, [6tli Am. ed.] pp. 251-252; 1 Jarm. on Wills, [5th Am. ed.] *pp. 114-191; Brown v. Clark, supra; In the Goods of Reynolds, L. R. [3 Probate & Divorce] 35.)

In Brown v. Clark, a married woman executed a codicil, which, in terms, referred to and republished a will executed by her before her marriage, and it was held that it effected a re-establishment and a valid publication of the will, which had been revoked as the effect, under the statute, of the marriage. In the English case cited, In the Goods of Reynolds, a will had been executed in 1866, and a codicil to it in 1871. Later, in 1871, another will was executed, revoking all previous wills and codicils. In 1872, a codicil was executed, entitled: “ This is a codicil to the will of B. R., dated May, 1866.” Probate was decreed of the will of 1866 and of the codicil of 1872, by which it had been revived. The codicil of May, 1871, was held not to be revived, as there was nothing to show such an intention.

*88 I think the judgment below is right and that it should be affirmed, with costs to the respondents, the Albany Historical and Art Society and the executors, to be paid out of the estate.

Parker, Ch. J., Bartlett, Haight, Cullen and Werner, JJ., concur; O’Brien, J., not voting.

Judgment affirmed.