Hyperlawhypertext legal database In re the Probate of the Last Will & Testament of Trost 38 Misc. 404

← Cases

In re the Probate of the Last Will & Testament of Trost

38 Misc. 404 Court N.Y. Sur. Ct. English

Contents

Majority

p. 404
Matter of the Probate of the Last Will and Testament of Louisa Trost, Deceased.
(Surrogate’s Court, Kings County,
July, 1902.)

Headnote

Will — When not republished by a codicil as of the date of the codicil.
. Where a testatrix executes a will in March, 1897, and another in September, 1897, and in April, 1900, executes, on a separate sheet an
p. 405
nexed to the March will, a codicil, not referring to either will, and containing nothing more than appointment of a guardian for her grandchildren, invalid because their parents were living and controlled the appointment, the codicil does not republish the March will as of the date of the codicil.
Proceedings upon the probate of a will.
William P. Martin, for proponent.
John J. Clancy, special guardian.

Upon the offer for probate of the last will and testament of the deceased the following facts appear:

The last will bears date September 2, 1897.

That the deceased executed a previous will in March, 1897.

Each of these papers appears to he executed with the requisite statutory formalities.

There is also a codicil, written on the back of the last sheet of the March will, which was executed on the 12th of April, 1900. The codicil does not, by its specific terms, state which will it refers to, nor does it, by- its terms, republish either of such wills.

The question advanced by the contestants here is that the fact of the execution of such codicil upon the back of the first will amounts to the republication of that will, as of the date of the execution of the codicil; the last will is revoked, and consequently, therefore, the first will should be admitted to probate as the last will and testament of the deceased.

By a recent decision of the Court of Appeals in Matter of Campbell, 170 N. Y. 84 , it has been definitely settled that a codicil to a will, which, in its terms, refers to such will, operates as a republication of the same, so that such will should lie deemed to date from the date of the execution of the codicil. In the Campbell case, above quoted, the codicil, by express terms, stated that it was intended as a codicil to the earlier will. In Kip v. Van Cortland, 7 Hill, 346 , the court states as follows (p. 349): “It is perfectly well settled that a republication of a will, by a codicil annexed to the will, or endorsed thereon, or referring to the will in such a way that there cannot he any doubt

p. 406
as to the identity of the instrument to which the codicil relates, as in this case, makes the will speak from the date of the codicil.” (At p. 350) “ The cases in England since the revolution show that the law remains unaltered there; and that a codicil duly attested, annexed to or referring to the will, though such codicil relates to personal estate only, and expresses no intention as to republication, is in fact a republication of the will.” •

The special guardian herein, under the above decision, contends that the language in Kip v. Van Cortland (that a codicil annexed to a will is a republication of it) controls and governs in this case, but, from the peculiar facts in that case, it is apparent that there was no doubt as to the identity of the instrument to which the codicil related, and it is this very uncertainty which, it seems to me, does not bring this case within the case above quoted.

The codicil in question is not written immediately following the will, on the same page, but is written on an adjoining sheet. It simply states that it is a codicil to her will, and its sole, provisions provide for the appointment of a guardian of her infant grandchildren. This was an absolutely ineffective and invalid provision, as, being the grandparent, and their parents being still alive, she had no authority to direct who should be their guardian. To say therefore that a codicil which, standing by itself, is absolutely valueless, can have the effect of a republication of an earlier will does not seem to me to be reasonable. ETor is there anything surrounding the execution of the codicil from which there can be gathered anything showing an intention to republish her first will and revoke the last. The notary who drew it states that she wanted a codicil made to her will; that she had this paper, and that he wrote the codicil upon it in the manner described.

At that time this earlier will was simply a valueless piece of paper, which had been revoked by a subsequent will. It does not seem that the mere writing upon it, without showing any intention of republishing it, and revoking the second will is sufficient to accomplish that purpose.

The will dated September 2, 1897 is therefor© admitted to probate.

Probate of will dated September 2, 1897, decreed.

Cases cited