
    Sarah Cook, Plaintiff, v. Joseph White, Appellant, Impleaded with Andrew Kavanagh, as Executor of the Alleged Last Will and Testament of Jane Cunningham, Deceased, Respondent, and Others.
    
      Trial—■exceptions to rulings as to the jury are irrelevant where a verdict is directed'. — direction of a verdict in an action to establish a will—.notice that •¡yrdbate is-opposed — ratification of a will by a codicil.
    
    Exceptions taken to. the rulings of a trial judge on the formation of a jury-become irrelevant where the judge directs a verdict.
    A judge presiding at the trial of an action brought under section 2653a of the-Code of Civil Procedure to establish a will, has the same power to direct a. verdict therein that he has in other civil actions.
    Section 2617 of- the Code of Civil Procedure, providing that if an application for the probate of a will is opposed, notice of the hearing of the objections to the will shall be given “ to all persons in being, who would take any interest in. any property, under the provisions of the will, and to the executor or execu- - tors, trustee or trustees named therein, who have not appeared in the proceed- ■ ing, and any decree in the proceeding shall not affect the right Or interest of any such person unless he shall be so notified,” was not designed for the benefit of the heirs at law or next of kin of the testator, but to protect the rights of' a devisee or legatee in case of proceedings taken to contest the will.
    While unattested or insufficiently attested or published testamentary documents-are excluded from probate although referred to in a subsequent properly executed will or codic-il, yet such will or codicil may operate as a ratification or revival of a prior properly attested instrument which for any reason is inoperative.
    
      Appeal by the defendant, Joseph White, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the ■clerk of the county of Kings on the 30th day of December, 1898, upon the verdict of a jury rendered by direction of the court, with notice of an intention to bring up for review upon such appeal an ■order entered in said clerk’s office on the 3d day of January, 1899, ■denying the said defendant’s motion fot a new trial made upon the minutes.
    
      Francis A. McCloskey, for the appellant.
    
      Charles J. Belfer, guardian ad litem, for infant defendants.
    
      William N. Dykman, for the respondent.
   Cullen, J.:

The will of Jane Cunningham having been admitted to probate by a decree of the surrogate of the county of Kings, this action was brought by a legatee named in the will, under section 2653a, Code of Civil Procedure, to establish and affirm its validity. At the close of the evidence the court directed the jury, in answering the questions propounded to it, to sustain .the will. From the judgment entered on the verdict so directed, this appeal is taken.

On- the trial the appellant took a number of exceptions to the rulings of the court on the formation of the jury. These exceptions have been argued quite elaborately on this appeal. We cannot see their relevancy, for since the verdict was directed by the court it was not the result of the voluntary action of the jury, and the alleged bias of any juror would seem wholly immaterial. Every juror was obliged -to comply with the direction of the court, apart from his personal views on the questions before him.

The power and duty of the judge presiding at the trial of an action of the character of the one before us, to direct a verdict where there.is no substantial conflict of evidence, or the evidence is insufficient, t'o the same extent as in other civil actions, has been expressly decided by the Court of Appeals in Hawke v. Hawke (146 N, Y. 366), where that court affirmed the decision of the General Term of this court in the third department (82 Hun, 439). By the section of the Code cited, the decree of the surrogate admitting the will and codicil to probate is prima facie evidence of their due attestation, execution- and validity; and the question presented is whether the evidence of the contestants sufficiently rebutted this presumption- to raise an issue of fact to be -passed on by the jury.' Before discussing this question, however, there is to be noticed an objection raised by the appellant to the admission in evidence of the decree of the surrogate:

The testator’s only next of kin and heirs at law were her brother, the appellant Joseph White, and the children of a deceased sister. The will gives legacies to these parties, but disposes- of the bulk of the estate to other persons. The heirs at law and next of kin were-cited to appear on the probate of the will and codicil. White, appeared and opposed-the probate. No notice of the hearing of the objections to the will was given. Section 2617 of the Code, provides: “And in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the will shall be given, in such manner as the surrogate shall direct, to all persons in being, who would ta-lce any interest in any property;, under the provisions of tlie will, and to the. executor or executors,;, ■trustee or trustees named therein, if any, who have not appeared in the preceding) and any decree in the proceeding shall not affect the-right or interest of any such person unless he shall-be so notified.” The learned counsel for the appellant contends that, under the terras^ of this section, the surrogate’s decree was' not competent evidence to "any extent against Hr. White because of the failure to give him notice of the hearing. We think this claim is based on a misconception of the object and effect of the statute. The appellant White occupied- a. double relation in the probate proceedings. As-an heir at law and one' of the next of kin, his interest was adverse to the probate -of a will which would deprive him of - inheriting as in case of intestacy;; as. a legatee under the will, his, interest was to-support it. Ample provision is made in section 2615 of the Code for citing all the heirs at law and next of kin. The object of. section 261.7 is not. to protect the rights of the next of kin or heirs at law, but those of a legatee or devisee under the will who, but for the provisions-of this sectio'U, might have no knowledge of the pendency of a proceeding in which a decree might be made Rejecting a will in his favor. But in this -case the will was admitted to probate. The decree of the surrogate was "not- adverse to the appellant as -legatee, but to the appellant as heir at law and next of kin. If, by the failure to give the appellant notice of the hearing, a decree would not be binding against the appellant in his capacity as legatee, that fact cannot inure in any respect to his advantage in his capacity of heir at law and next of kin. The objection is wholly technical, for, as the appellant was tile principal contestant before the surrogate, he, of course^ not only had notice of the proceedings on the contest, but was a participant in them; and both the decree of the surrogate and that now before us are in his favor so far as he is a legatee. The objection discussed is not well taken.

The only evidence given by the contestants in their attack on the will, and codicil in suit tended to show that the testator was very intemperate, and at times became grossly intoxicated. The will was executed on Christmas day of 1895. The testator was a widow, and since the decease of her husband had lived without other family than a servant. Four days before the execution of the will she went to St. Mary’s Hospital (an institute for women), and continued to remain there until her decease on November 5, 1896. Her previous relations with the sisters who maintained the hospital were somewhat intimate, and from her declarations made to some of the contestants’ witnesses it seems she had, in earlier wills, made some provision in favor of either the hospital or the sisters. These wills do not appear in evidence. The brother and the plaintiff, Mrs. Cook, who had been a servant of the testator until she went to the hospital, visited her at that place during the afternoon of Christmas day. Their testimony tends to show that at the time of their visits the testator was stupid, as if under the influence of liquor, though they did not see her drink. The will was prepared and executed in the evening. The only witness who testified to that transaction was Mr. Kuhn, the lawyer, who drew the will, and who was called by the contestants. His testimony is to the effect that, at the time of his interview with the deceased, she was entirely competent and conscious; that he received from her all the directions for the disposition of her property, and that at the conversation he and the testator were entirely alone. The codicil was executed on the 16th day of October, 1896. This codicil refers to the previous will by date, revokes certain legacies and gives others, and concludes by ratifying and confirming the will as previously made, except as modified by the codicil. No evidence whatever was produced by the contestants as to the condition of the testator at the time of the , execution of the codicil. While the evidence shows that intermediate the execution of the will and the codicil the testator had. indulged iii the excessive use of liquor, yet she was competent to do business and was of sound mind. She drew checks; she went to the bank, though not unattended, and drew money. The law in this State is well settled as to the capacity of intoxicated persons to execute wills or deeds. “A drunkard is not incompetent like an idiot or one generally insane. He is simply incompetent upon proof that at the time of the act challenged his understanding was clouded or his reason dethroned by actual intoxication.” (Van Wyck v. Brasher, 81 N. Y. 260.) “Neither habitual intoxication nor the actual stimulus of intoxicating liquors, at the time of executing a will, incapacitates a testator, unless the excitement be such as to disorder his faculties and pervert his judgment.” (Peck v. Cary, 27 N. Y. 9.) If we assume that the evidence was sufficient to raise an issue as to the condition of the deceased and her competency to make a will on Christmas day, 1895, there is no testimony whatever to impeach the codicil in October, 1896, which in express terms ratified the original will, “The general doctrine is well settled that a codicil executed with the formalities required by statute for the execution of wills operates as a republication of a will so far as it is not changed by. the codicil.” (Brown v. Clark, 77 N. Y. 369.) “Constructive republication takes place where a testator, for some other purpose, makes a codicil to his will; in which case the effect of the codicil, if not neutralized by internal evidence of a contrary intention, is to republish the, will.” (1 Jarm. Wills, 174.). “Likewise, although if the testator made his wdll while non covypos and afterwards recover his understanding, the will does not thereby obtain any force or strength; yet if he should, after having regained a sound state of mind, republish the will made during his former insanity, it would doubtless become a valid will.” (1 Williams Exrs. [7th Am. ed.] 267.) So it has been Held that if a testator executes his will under undue influence, and afterwards, free from such influence, executes a codicil thereto, it is a repubíicatioñ and confirms the will. (O'Neall v. Farr, 1 Rich. Law [S. C.], 80.) We have had occasion to recently consider the effect of some late decisions of the Court of Appeals on the rule which has always prevailed in England and generally in this country, that extraneous nnattested documents may he incorporated into a will by proper reference. (See Matter of Andrews, post, p. 394.) We have expressed our opinion that since the decisions by the Court of Appeals in the O'Neil Case (91 N. Y. 516); the Conway Case (124 id. 455) and the Whitney Case (153 id. 259), no testamentary provisions in other "unexecuted or unattested papers can in this State be incorporated into a will. Therefore, the old doctrine that the execution and publication of a codicil operates as a publication of an earlier inoperative or insufficiently executed or attested will, does not now prevail with us in its entirety. Still, the rule is not wholly abrogated. In Brown v. Clark (supra) the original will was properly executed by a single woman. She married, her husband died, and thereafter she made a codicil to the will. It was held that under ouf statute marriage per se revoked the will, but it was also held that the publication of the codicil operated as the publication of a will which, but for the codicil, had no legal effect whatever. In commenting on that case the court, in Matter of Conway (supra), distinguished it from the one then before it, in that the will was executed in conformity with the statute. So we think that the rule of this 1 State, while it excludes unattested or insufficiently attested or published testamentary documents from probate, though referred to in a subsequent properly executed will or codicil, does not prevent such a will or codicil from ratifying or reviving a properly attested instrument which, for any reason, might be inoperative. It follows that the execution of the codicil in this case confirmed the original will.

The judgment appealed from should be affirmed, with costs.

All concurred, except Bartlett, J., not sitting.

Judgment affirmed, with costs.  