
    Matter of Proving the Last Will and Testament of Ellen Campbell, Deceased.
    
      (Surrogate’s Court, Albany County,
    
    
      Filed July, 1901.)
    Will — Codicil as a Republi cation.
    A testatrix named Ellen Campbell made a will on July 6, 1897, revoking all former wills, and this she specifically revoked by a will made in 1899. On December 7, 1900, she executed a paper, beaded “ Codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897,” and this contained no revocation clause whatever.
    
      Held, that the will of 1899 was not her last will.
    That the codicil amounted to a republication of the will of 1897 and made it speak, as modified by the codicil, as of the date of the codicil.
    Affirmed, 67 App. Div. 627, 170 N. Y. 84.
    
    The proceeding was commenced on the 21st day of January, 1901, by the filing of a petition with the surrogate of Albany county, for the probate of an instrument bearing date July 6, 1897, and a codicil thereto bearing date December 7, 1900, as the last will and testament of said Ellen Campbell, all the heirs-at-law and next of kin of said deceased having waived the issuance and service of a citation therein.
    On the 1st day of February, 1901, an order was granted by the surrogate of Albaany county that a citation issue to the Albany Art & Historical Society and the Home for Aged men, beneficiaries, respectively, under the instrument already named, and another instrument bearing date July 19, 1899.
    
      On April 8, 1901, an order was granted by tbe Albany county surrogate admitting tbe instrument of July 6, 1897, and tbe codicil bearing date December 7, 1900, to probate as tbe last will and testament of tbe deceased.
    Arthur L. Andrews, for Archibald Campbell and David A. Thompson, executors; A. Page Smith, for The Home for Aged Men; William L. Learned, for Tbe Albany Historical & Art Society; Rosendale & Hessberg, for The Albany Hospital; Hun, Johnston _& Hand, for Charles IT. Campbell.
   Eitts, S.—

The testatrix died at the city of Albany, N. Y., on the 11th day of December, 1900. The petitioners herein presented for probate a paper alleged by them to be her last will and testament, bearing date the 6th day of July, 1897, together with a codicil thereto executed on the 7th day of December, 1900, four days before her death. After taking the depositions of the subscribing witnesses to the paper executed in 1897 and the codicil thereto, and before the entry of the decree admitting the will to probate, the petitioners filed in this court another paper purporting to have been executed by the testatrix on the 19th day of July, 1899, by the express terms of which she assumed to devise and bequeath all of her estate, and to revoke all previous wills by her made. A supplemental citation wasi thereupon issued to all parties in interest, and the depositions of the subscribing witnesses to said instrument were taken. The matter for me, now, to determine is, which is the last will and testament of said deceased. The estate involved aggregates about $135,000. I find that, at the time of the execution of these different instruments, they were executed with all the formalities prescribed by law, and that, iat the time of the execution of each, the testatrix had sufficient testamentary capacity, and was not under any undue influence. The different instruments are all in the handwriting of Mr. David A. Thompson, of the firm of Thompson & Andrews. It appears, from the testimony, that, on. the 7th day of December, 1900, at the request of Miss Campbell, Mr. Thompson called at her residence, and was there informed that she desired to make some alterations to her will; he then requested its production; she thereupon asked Miss Henderson, who was performing the duties of a nurse, she then being ill, to produce a certain bag, and from; that bag she obtained the will executed by her in 1897, and handed it to Mr. Thompson. Mr. Thompson then read to her the provisions of the will, and she made such suggestions as to alterations and changes as she desired to be made, he making a memorandum of the sam'e upon the back of the will. The paper now offered as a codicil to the will was then drawn, embodying and carrying into effect her desires' with reference to the disposition of her property, and such alterations and modifications as she wished to have made to her former will, and the same was thereupon executed with all the formalities required by law. The paper, as to its heading, is as follows:

“ Codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897.”

By the first item of her codicil, she authorizes the Albany Hospital to use the sum of $50,000 theretofore bequeathed to it in any way to secure the maintenance of a separate ward in said hospital for the treatment of cripples, and revoked the provision for the erection of a separate and suitable building contained in her former will. By the second item of the codicil, she revoked the sixth clause thereof with reference to the erection of a monument to the memory of Sir Walter Scott, and then proceeded to make a number of pecuniary bequests to her relatives and friends. The will executed in 1899, by its provisions, revoked the will of 1897; the will of 1897 also contains a clause revoking all existing wills, but there is no revocation clause in the codicil. By the will of 1897, The Albany Historical & Art Society was bequeathed the sum of $5,000, and, in addition thereto, certain curios and valuable books; by tbe will of 1899, the pecuniary bequest to said society was revoked, and by said will the testatrix bequeathed to the Home for Aged Men the sum of $5,000, which bequest was not contained in the will of 1897 or the codicil thereto. The counsel for the Home for Aged Men contends that the will executed by the testatrix in 1899 is her last will and testament, while the counsel for the Albany Historical & Art Society contends that the will of 1897 and the codicil thereto, taken together, represents and constitutes the last will and testament of said deceased. The statutes of the State govern and determine the manner in which wills may be revoked, and are found in 2 Revised Statutes (64, §' 42), and are as follows: “No will in writing, except in cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise than by some other will in writing or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence by his direction and consent; and when so done by another person, the direction and consent of' the testator, and the act- of such injury or destruction, shall be proved by at least two witnesses.”

The will of 1897 was revoked by the will of 1899, and the question now to be considered is whether the execution of the codicil to the will of 1897 revives it and makes it speak as of the date of the publication of the codicil of December 7, 1900. I have reached the conclusion that the rule of law determining this matter is set forth in the case of Brown v. Clark, 77 N. Y. 369. In that case the testatrix, while unmarried, executed a will, and after her marriage executed a codicil to it, and by its ■ terms reaffirmed the will, and the court there held that the codicil, having been executed with all the formalities required by statute for tbe execution of a will, operated as a republication of tbe will to wbicb it referred so far as not changed by tbe codicil. And, in commenting upon it, at page 376, tbe court says: “ Upon tbe authorities cited, it is clear that under tbe law in this State as it stood prior to 1830, here was a valid republication of tbe will in question by tbe execution of tbe codicil of December 7, 1876. Tbe Revised Statutes changed in several respects tbe ceremonies to be observed in execution of wills, and among other things it is expressly required that tbe testator shall at tbe time of making or acknowledging bis subscription to tbe will, declare tbe instrument to be bis last will and testament. (2 Rev. Stat. 63, § 40, subd. 3.) There is nothing in this statute indicating that it was intended to change tbe rule that a codicil duly executed was a republication of the will. Tbe codicil in tbe case of Van Cortlandt v. Kip (1 Hill, 590) was executed after tbe present statute was enacted. It referred to tbe will executed in 1824, but did not in terms republish it, and made no reference to tbe lands acquired by the testator after tbe will was made, but tbe court.held, in accordance with tbe law wbicb existed before tbe Revised Statutes were passed, that tbe codicil was a republication of tbe devise in tbe will, and that tbe after-acquired lands passed to tbe surviving devisee. Tbe Revised Statutes did not affect tbe construction of wills made before the chapter relating to wills took effect. (2 Rev. Stat. 68, § 75.)”

And tbe court, further commenting upon tbe case in Van Cortlandt v. Kip, says: This case seems to be a direct authority that tbe due execution and publication of a codicil is, under tbe Revised Statutes as it was prior thereto,' a republication of tbe will to which it refers. Tbe codicil in this case refers to tbe will and expressly adopts and reaffirms it. Tbe testatrix by publishing tbe codicil, published the will, wbicb was clearly identified by tbe reference in tbe codicil and tbe extrinsic proof. It is established by a long line of authorities that any written testamentary document in existence at the execution of a will may, by reference, be incorporated into and become a part of the will, provided the reference in the will is distinct and clearly identifies, or renders capable of identification, by the aid of extrinsic proof, the document to which reference is made.”

And again it was held, in Matter of Miller, 11 App. Div. 337, that, It is a well settled principle that a will and codicil are to be considered together as one instrument; that a codicil duly executed referring to a will is a republication thereof, and the effect of such republieation thereof is to bring down the will to the date of the codicil.”

Again, in Brown v. Clark, quoting from 1 Jarman, 78, I find the following: “ A codicil duly attested communicates the efficacy of its attestation to an unattested will or previous codicil so as to render effectual any devise of a freehold estate which may be continued in such prior unattested instrument/ And further on, speaking of the incorporation of documents by reference in the will, he says that this is permitted, without violating the principle of the enactment, which requires an attestation by witnesses, the testator’s intention to adopt the contents of such instrument being manifested by a will duly attested/ ”

So that, in accordance with the authorities above cited, in my judgment, the will of 1897 and the codicil of 1900 constitute one instrument, and speak of the date of the execution of the codicil on December 7, 1900, and such being the case, and the will of 1897 containing a clause revoking all former wills by her, I hold that its effect is to revoke the will executed in 1899. I have reached a conclusion in this matter contrary to what I anticipated at the time the matter was submitted to me, but, after a close reading of the case of Brown v. Clark, I am unable to arrive at any other result. Findings can, therefore, be prepared declaring that tbe will of 1897 and tbe codicil of 1900, referring to tbe same, is tbe last will and testament of said deceased, and revoking by its terms tbe will executed by ber in 1899.

Decreed accordingly.  