In re the Estate of Klein
177 Misc. 555, 31 N.Y.S.2d 70, 1941 N.Y. Misc. LEXIS 2362 (1941)
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Rule of Law:
A validly executed codicil that specifically refers to and modifies an earlier will effectively republishes that earlier will, making the two instruments the final testamentary disposition, and thereby implicitly revokes any intervening will executed between the earlier will and the codicil, even if the codicil does not explicitly mention the intervening will.
Facts:
- On October 31, 1940, a testatrix executed a will (referred to as the 'earlier will').
- On February 27, 1941, the testatrix executed another will (referred to as the 'intervening will') which made a complete distribution of her estate; this intervening will was drafted by a different attorney.
- On April 8, 1941, the testatrix executed a codicil.
- The codicil explicitly declared itself to be 'a codicil to my last will and testament, dated October 31, 1940.'
- The attorney who drafted the codicil and supervised its execution had also drafted the earlier will, and they discussed the earlier will with the testatrix.
- The existence of the intervening will was unknown to the codicil's draftsman and was not mentioned during the codicil's preparation or execution.
- The codicil modified the earlier will by revoking a $500 legacy to Robert Gerecht and changing the appointment of an executor, making the executrix named in the earlier will the sole executrix.
- The testatrix was of sound mind and free from undue influence at the time of executing the codicil and both wills.
Procedural Posture:
- Two petitions for probate were presented to the Surrogate's Court, New York County, regarding the testatrix's three separate testamentary instruments: an earlier will (October 31, 1940), an intervening will (February 27, 1941), and a codicil (April 8, 1941).
- Answers were filed to the petitions, outlining issues for the Surrogate's Court to determine regarding the validity and effect of the instruments.
- The Surrogate's Court conducted a contested proceeding to resolve the issues presented by the petitions and answers.
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Issue:
Does a validly executed codicil that specifically refers to and modifies an earlier will effectively republish that earlier will and thereby revoke an intervening will that was executed between the earlier will and the codicil, even when the codicil does not explicitly mention the intervening will?
Opinions:
Majority - Foley, S.
Yes, a validly executed codicil that explicitly refers to and modifies an earlier will effectively republishes that earlier will and implicitly revokes any intervening will. The court found that the codicil was duly executed and the testatrix was of sound mind and free from undue influence. The disposition of this question is squarely controlled by Matter of Campbell (170 N.Y. 84), where the general facts were identical. Campbell held that when a codicil is executed with proper formalities and refers to an earlier will, it revives and republishes that earlier will as a completely executed and existent instrument. The two documents, taken together, then constitute the final testamentary disposition of the estate. In such a scenario, any other will executed prior to the codicil but after the republished will is revoked, and express words of revocation in the codicil are not necessary. The testatrix's explicit declaration in the codicil, identifying it as a codicil to the October 31, 1940 will, along with discussions with her attorney regarding that specific will, demonstrated her purpose and intent to re-establish her earlier will. The court concluded that the codicil and the earlier will dated October 31, 1940, together constitute the testatrix's final testamentary disposition, and therefore, the intervening will of February 27, 1941, must be denied probate.
Analysis:
This case reaffirms the legal doctrine of republication by codicil, providing clear guidance on how conflicts between multiple testamentary instruments are resolved. It establishes that a codicil's specific reference to an earlier will, rather than a general reference to 'my last will and testament,' is a strong indicator of the testator's intent to republish that specific earlier will. The decision highlights that explicit words of revocation for an intervening will are not required if the intent to republish an older will is clear, streamlining the probate process in such circumstances. This ruling serves as an important precedent for future cases involving similar testamentary arrangements, emphasizing the power of a codicil to alter the sequence and validity of wills.
