Shapiro v. Greenberg (In re Greenberg's Estate)

• Decision Date: 18 April 1933
• Parties: In re GREENBERG'S ESTATE. SHAPIRO et al. v. GREENBERG.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 474

185 N.E. 704

In re GREENBERG'S ESTATE.SHAPIRO et al.

v.GREENBERG.

Court of Appeals of New York.

April 18, 1933.

Proceedings by Lena Greenberg for determination of her right to elect to take an intestate share against the provisions of the last will and testament of Ancil Greenberg, opposed by George Shapiro, as executor, and others. From an order of the Appellate Division (236 App. Div. 733,257 N. Y. S. 1078), affirming a decree of the surrogate (141 Misc. 874, 253 N. Y. S. 667), which granted the application, defendants appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Charles F. Hulseman, of Brooklyn, William G. Chambers, of New York City, Bessie Goldstein, of Brooklyn, and William Stanley Miller, of New York City, for appellant George Shapiro as executor of Ancil Greenberg.

Frederick A. Keck, of Brooklyn, special guardian for appellants Milldred Greenberg et al.

Abraham L. Bienstock and Max D. Steuer, both of New York City, for respondent.

POUND, Chief Judge.

Ancil Greenberg, the testator, died in Kings county February 16, 1931. He left a widow and five children. He also left a will, dated December 21, 1927, a codicil thereto dated October 30, 1930, and another codicil dated January 3, 1931. The will and codicils were admitted to probate. No provision was made in the will for the widow except a legacy of $1, coupled with an expression of disappointment in her failure to establish for testator ‘a blissful and contented home.’ The widow gave notice of election to take her share of the estate as in intestacy, as provided by section 18 of the Decedent Estate Law (Consol. Laws, c. 13). The Surrogate's Court sustained her contention. The Appellate Division affirmed.

The Decedent Estate Law (Laws 1929, c. 229, § 18, par. 1) provides: ‘Where a testator dies after August thirty-first, nineteen hundred and thirty, and leaves a will thereafter executed and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy,’ subject to limitations not bearing on this question.

It also provides (section 2): ‘The term ‘will,’ as used in this chapter, shall include all codicils.'

The appellant contends that, as the ‘will’ herein was executed prior to August 31, 1930, section 18 of the Decedent Estate Law does not apply, for the reason that the codicils executed after the effective date of the statute did not re-execute the will. In Osburn v. Rochester Trust & Safe Deposit Co., 209 N. Y. 54, 56,102 N. E. 571, it was held that, while a will and existing codicil are to be regarded as a single and entire instrument for the purpose of determining testamentary intention and disposition, the destruction and revocation of a codicil to the will does not necessarily or ordinarily operate as a revocation of the will. It may be conceded that the will and the codicils are separate papers, so that one may stand although the others fall, but, when all are admitted to probate as the last will and testament of the testator, the effect of the codicils is to republish the will and make it speak from the new date in so far as it is not altered or revoked by the codicil. Matter of Campbell's Will, 170 N. Y. 84, 87,62 N. E. 1070,Matter of Brann, 219 N. Y. 263, 268,114 N. E. 404, L. R. A. 1918B, 663. This principle is well established. In section 18 of the Decedent Estate Law the word ‘will’ is used in that sense. The ‘will’ here probated includes the codicils. The will was thereforere-executed as to the date of the latest codicil and the widow's right of election exists. The execution of a codicil is tantamount to the execution of a will. Such was the meaning of the commission on revision of the law of estates as appears by their explanatory notes.

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