In re the Estate of Poorman
27 Misc.2d 375, 211 N.Y.S.2d 440, 1960 N.Y. Misc. LEXIS 1987 (1960)
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Rule of Law:
A codicil can only revive and republish an earlier will if that earlier will was an existing, completed instrument at the time the codicil was executed; a codicil cannot revive a will that has been destroyed and is therefore no longer in existence.
Facts:
- On May 10, 1950, the testatrix executed a will, bequeathing her entire estate to her husband, with a substitutionary gift of one-half to her mother and one-half to her mother-in-law if her husband predeceased her.
- On October 22, 1953, the testatrix executed a second will, also bequeathing her estate to her husband, but providing different specific legacies and a different division of the balance to her mother and mother-in-law if her husband predeceased her.
- At the time the testatrix executed the 1953 will, she revoked the 1950 will by destroying it.
- On April 1, 1957, the testatrix executed a codicil, which stated it was 'a First Codicil to my Last Will and Testament dated May 10th, 1950' and contained a clause ratifying and republishing the 1950 will in all other respects.
- The testatrix subsequently died.
- The testatrix's husband survived her.
Procedural Posture:
- The instrument executed on October 22, 1953 (the 1953 will) and the codicil dated April 1, 1957, were offered for probate in Surrogate's Court.
- A hearing was conducted in Surrogate's Court to establish facts, specifically that the 1950 will had been revoked by destruction at the time the 1953 will was executed.
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Issue:
Does a codicil that expressly refers to and ratifies an earlier will effectively revive that earlier will and revoke an intermediate will, when the earlier will had been previously destroyed and was not in existence at the time the codicil was executed?
Opinions:
Majority - Joseph A. Cox, S.
No, a codicil that expressly refers to and ratifies an earlier will does not effectively revive that earlier will and revoke an intermediate will if the earlier will had been previously destroyed and was not in existence at the time the codicil was executed. The court distinguished this case from Matter of Campbell, which held that a codicil could revive an earlier will even if an intermediate will had been executed. The critical distinction here is that in Campbell, the earlier will was still in existence when the codicil was executed, whereas in the present case, the 1950 will had been revoked by destruction prior to the execution of the 1957 codicil. The court emphasized that a codicil's ability to incorporate and republish a will is premised upon that will being an 'existent and a completed instrument.' Since the 1950 will was not in existence, there could be no 'implication from the codicil that the will of first date was in existence.' Without the revival of the 1950 will, there was no basis to infer that the intermediate 1953 will was necessarily revoked. Therefore, the 1953 will and the 1957 codicil are deemed the effective testamentary instruments. The court noted that the fact that the codicil referred to the destroyed 1950 will presented no problems of construction in this specific case because the husband survived, making him the sole legatee under any combination of the wills, and thus the alternative dispositions in the codicil (conditioned on the husband's death) would not take effect.
Analysis:
This case significantly clarifies the doctrine of revival of wills by codicil, establishing a crucial prerequisite: the earlier will must be in actual existence at the time the codicil is executed for it to be revived. It prevents the unintended consequence of bringing back a destroyed testamentary instrument through a mere reference in a later codicil, thereby preventing potential fraud or imposition. This ruling emphasizes the importance of physical existence for a will to be revived, providing a check on the potentially broad implications of the 'republication by codicil' doctrine, particularly in situations where a testatrix might inadvertently try to revive a will she believed to be valid but had, in fact, destroyed. This ensures that the court effectuates what is truly the last will of a deceased person.
