
    Gelbke v. Gelbke.
    
      Statutory Action in nature of Ejechnent.
    
    1. Codioil as part of will, or revoking it. — A codicil, written three days after a will, and annexed to it, declaring, “As codicil to the foregoing last will and testament, and to be taken as a part thereof, 1 hereby declare that I hereby revoke and annul all wills by me heretofore made, and especially that executed in New Orleans in 1860, or 1861, wherein my brother Charles was named as sole legatee — the same_ are hereby all cancelled,” — is not a revocation of the will to which it is annexed, but is part and parcel thereof.
    Appeal from the Circuit Court of Mobile.
    Tried before the Hon. ¥i. E. Clarke.
    This action was brought by Louisa Gelbke, an infant, suing by next friend, against Mrs. Maria Gelbke, tó recover the possession of a house and lot in Mobile; and was commenced on the 6th May, 1889. The house and lot had belonged to Frederick L. Gelbke, deceased, who was the father of the plaintiff, and the husband of the defendant; and the only question in the case was, whether the property passed to the defendant under his will, or descended to the plaintiff as his sole heir at law. By the terms of the will, which was dated March 27th, 1885, the testator devised and bequeathed all of his property, after payment of his debts, to his widow, the defendant; but a codicil was annexed to it, which was dated March 80th, 1885, and both the will and the codicil were duly admitted to probate. The case being submitted to the court without a jury, the court held that the will was not revoked by the codicil, and that the property passed to the widow under its terms. The plaintiff excepted to this ruling and judgment, and she here assigns it as error.
    J. E. Burgett, for appellant.
    F. G. Bromberg, contra.
    
   SOMEEVILLE, J.

We fully concur with the Circuit Court in the view, that the codicil to the will in question did not operate to revoke the testator’s will bearing date March 27th, 1885. This codicil .was dated March 30th, 1885 — three days after the will — and was in the following words: “As codicil to the foregoing last will and testament, and to be taken as a part thereof, I, Frederick Louis Gelbke, hereby declare that I hereby revoke and annul all wills by me heretofore made, and especially that executed in New Orleans, State of Louisiana, whilst temporarily there during the late civil war, in 1860 or 1861, wherein my brother, Charles W. Gelbke, was named as sole legatee — the same are hereby all cancelled.”

The will and codicil are to be construed together as one instrument, speaking from the date of the codicil. It rather republishes than revokes the will of which it forms a part. Its clear intention was to expressly revoke all former wills bearing date prior to March 27th, 1885, but not the one of which it forms a part, and to which it gives fresh affirmation and vitality.

Affirmed.  