
    In the Matter of Proving the Last Will and Testament and Codicil Thereto of Frederick L. Emmons, Deceased, as a Will of Real and Personal Property. Frank Emmons, Appellant ; Emanuel Baruch, Individually and as Administrator, etc., of Mabel Shaw Baruch, Deceased, and Others, Respondents.
    First Department,
    January 26, 1906.
    Will — unattested will not made valid by properly attested codicil referring thereto — such codicil entitled to probate.
    A will which is invalid because attested by one subscribing witness only iá not given validity by a subsequent codicil referring thereto, although the latter be properly executed. •
    
      In. this State the rule obtains that no testamentary provision in other unexecuted or nnattested papers can be incorporated into a will. This rule does not apply to a properly executed will rendered invalid by operation 'o£ law or to one executed while the person is insane, nor does it infringe upon the rule of reviving-a former will by a subsequently executed codicil.
    Sucli'duly executed codicil is, however, entitled to probate if co’mplete in itself and capable of execution as by naming executors only or by making a single bequest. . -( , -
    • Appeal by Frank Emmons from-, a decree of the Surrogate’s Court of Hew York county, entered in said Surrogate’s Court on the 3d day of May, 1905-, admitting to probate as the last will and testament and roodiciV thereto of Frederick L. Emmons, deceased, two certain papers bearing date. respectively December 30, 1902, and May 16, 1904.' ' '
    
      Henry Meyer, for the appellant.
    
      William M. Beard, for the respondent Baruch.
    
      Andrew S. Hamersley, for the respondents, executors.
   Houghton, J.:

Frederick L. Emihons attempted, on the 30th day of December,-1902, to execute his holographic will. The paper is very informal and makes his mother the sole legatee and devisee, no executor being appointed. It was signed by him, and published and declared'' as 1ns last will and testament, in-the presence, however, of only one witness, whose signature is the only one appearing thereto. On the death of the allegecbtestator this instrument was found in his safety . deposit box with other papers belonging to him. On the 16th day of May, 1904, the decedent properly executed what is stated therein to be a “ codicil to my last will and- testament, hearing date-, 191K” The only .provision of‘this last instrument, in-addition to-the naming bf executors of it and the former alleged will, is a bequest of $10,000 'to "the intestate of respondent Baruch. The attestation clause^and the testimony of the subscribing witnesses.sho.w that it was published as a codicil to the alleged last will and testament.

The executors named presented both instruments for probate. The appellant filed contesting allegations to the effect that the former paper should not be admitted to probate because it was not attested in conformity with the statute (2 B. S..63, § 40) as a last will and testament, and that the latter paper should not be admitted to -probate because it w.as not complete in itself, and only purported to be a codicil to a will which was invalid.

The learned surrogate felt constrained to admit both papers to probate, and from such decree this appeal is taken.

The theory of the respondents is that the properly probated and executed codicil referring to the defectively executed will validated it and incorporated it in the latter instrument, so that both were entitled to probate. Many English decisions and those of many of our sister States give support to the proposition that' extraneous unattested documents may be incorporated into a will by proper reference thereto. In this State, however, that doctrine does not prevail, and the rule is that no testamentary provision in other unexecuted or unattested papers can be incorporated into a will. (Cook v. White, 43 App. Div. 388 ; affd., 167 N. Y. 588 ; Matter of O'Neil, 91 N. Y. 516 ; Matter of Conway, 124 id. 455, 460.) In Matter of Andrews (43 App. Div. 394) the question was elaborately discussed, opinions being written by four of the justices taking part in the decision, and one of the dissenting opinions was written in the ' expressed hope that the Court of Appeals might be attracted to a renewed, consideration of the question and a modification of the rule. Such was not the result, however, for that decision-was unanimously affirmed (162 N. Y. 1), and on review of the authorities the doctrine was reiterated.

The rule, however; does not extend to a will properly executed and which has been rendered inoperative by law, as by marriage of a woman (Brown v. Clark, 77 N. Y. 369), or to one which was executed while the testator was of unsound rhind or under restraint. (Cook v. White, supra.) In such case the instrument properly executed in form may be revived and validated by the proper execution of a codicil referring to such instruihent, or made for that purpose. •

Eor does the rule infringe upon the doctrine of revivor and republication of a validly executed will by the due execution and publication- of a valid codicil. (Matter of Campbell, 170 N. Y. 84.)

The prior instrument executed by the decedent was not a will, for it lacked the attestation of the two witnesses required by statute, and being, therefore, unexecuted and nnattested, it could neither be revived by nor incorporated into the subsequently validly executed testamentary instrument denominated a codicil. x

It is unfortunate that próbate must be denied this instrument. The deceased desired and attempted to give all his property to ,his mother. He was perfectly competent to decide to- whom he would give his property, and there is no suggestion that there -was any other will, or that the paper produced was not the one to which he referred in his codicil, notwithstanding the fact it .is not identified i by exact date. ' .

' The remarks of the court in Matter of Andrews (162 N. Y. supra) are peculiarly applicable to the present situation“ It is undoubtedly true that from time to time an honest attempt to execute a last will and testament is defeated by failure to observe some one or more of the statutory requirements. It is better this should happen under a proper construction of the statute than that the individual •case should be permitted-to weaken those provisions calculated to protect testators generally from fraudulent alterations of their wills.” The question remains to be considered whether the instrument denominated a 'codicil - should also be denied probate. It was undoubtedly the intention of the testator that this instrument .should operate in connection with the will which he supposed lie had- executed, and, that it should be an addition thereto. That his intention failed in this respect, -however, doés not defeat the instrument. The distinguishing • feature of a will is that it' shall take effect upon death, and the name -by which it is' called is immaterial. (Matter of Diez, 50 N. Y. 88.)

A codicil may modify the provisions of a -will Or supersede them entirely, gr simply add to the disposition by introducing new benéficiaries. A validly executed will may have been lost and be incapable of proof, and yet the codicil, so far as it. goes, is operative. (Newcomb v. Webster, 113 N. Y. 191.) A codicil executed according to the formalities of the statute is a final testamentary disposition, and if there be an existent and comjfiete will, it takes it up and incorporates it. (Matter of Campbell, 170 N. Y. 84.) If; hoxvever, there -be no such existónt and . validly executed will, ' and if the codicil be so complete in itself as to be capable of execution, then it must necessarily stand and be given the force of valid testamentary disposition.

The codicil in question, so far as it goes, is entirely complete. The carrying out of its provisions in no sense depends upon the will to which it attempts to refer. It simply carves out of the estate a legacy and bequeaths it to an individual capable of taking. Besides, the instrument appoints executors of the testator’s estate. If it contained no other provision, this would alone entitle it to probate. (Matter of Davis, 105 App. Div. 221 ; 182 N. Y. 468.)

The decree appealed from, in so far as it admits to probate the paper dated December 30, 1902, must be reversed, and in all other respects affirmed, without costs to either party as against the other.

O’Brien, P. J., McLaughlin and Laughlin, JJ., concurred; Ingraham, J., concurred in result.

Decree reversed to the extent stated in opinion and in other respects affirmed, without costs.  