In re Campbell's Will

• Decision Date: 25 February 1902
• Citation: 170 N.Y. 84,62 N.E. 1070
• Parties: In re CAMPBELL'S WILL.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 84

62 N.E. 1070

In re CAMPBELL'S WILL.

Court of Appeals of New York.

Feb. 25, 1902.

Appeal from supreme court, appellate division, First department.

Application of Archibald Campbell and others to admit to probate the will of Ellen Campbell, deceased. From a judgment of the appellate division (73 N. Y. Supp. 290) affirming a decree admitting the will to probate, the Home for Aged Men appeals. Affirmed.

A. Page Smith, for appellant.

Arthur L. Andrews, for respondents Archibald Campbell and others.

William L. Learned and John De Witt Peltz, for respondent.

Albany Historical and Art Society.

GRAY, J.

This was a proceeding for the probate of a will and of a codicil of Ellen Campbell, deceased, and it therein appeared that she had executed at different times, and there were existent, two wills and a codicil. On July 6, 1897, one will was executed; on July 19, 1899, another will was executed; ond on December 7, 1900, an instrument was executed by the testatrix which declared itself to be a ‘codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897.’ The will of 1899 modified or changed the provisions of the will of July 1897, in respects relating to legacies given, and in giving new legacies. Each of these wills was executed with the requisite statutory formalities, and contained the usual revocation clause. The codicil of 1900 modified some provisions of the will of 1897, expressly revoked others, and added some legacies. It made no reference to the will of 1899. The will of 1897 and the codicil thereto of 1900 were admitted by the surrogate to probate, as constituting the last will and testament of the deceased, while the will of 1899, was refused probate, as having been revoked. The conclusions of the surrogate in those respects were unanimously affirmed by the appellate division, and the Home for Aged Men, a legatee under the will of 1899, appeals to this court from the decision below.

Although it is found as a fact by the learned surrogate that the testatrix, by the execution of the codicil in 1900, republished her will of July, 1897, nevertheless the finding is, in its nature, a legal conclusion from the facts, and the question of law is in the case. It is contended on the part of the appellant that the statutory provisions with respect to the destruction, cancellation, and revocation of a will are applicable to the present case. 2 Rev. St. pt. 2, c. 6, tit. 1, art. 3, § 53. They clearly are not. Whether the earlier will was revived by the destruction of a later will is not the question; nor does the validity of testatrix's action with respect to the prior will depend upon verbal declarations, as in Re Stickney's Will, 161 N. Y. 42, 55 N. E. 396,76 Am. St. Rep. 246. The question is whether the execution by the testatrix of the codicil revived and republished the earlier will of 1897,-a completely executed and existent instrument,-so that the two instrument, together, constituted the final testamentary disposition of her estate. That such is generally the effect of a codicil, and that the will thereby republished speaks from the date of the codicil, is a proposition settled upon authority. Van Cortlandt v. Kip, 1 Hill, 590;Brown v. Clark, 77 N. Y. 369;In re Conway, 124 N. Y. 455, 26 N. E. 1028,11 L. R. A. 796. That there intervenes, between the will referred to in the codicil and the codicil itself, another will, executed by the testatrix, and in terms revoking other wills, does not affect the result, because the codicil to the earlier will implies its existence, and effects, impliedly, if not expressly, the revocation of the intermediate will. Of course, there can be...