App. Div.] Fourth Department, December, 1920. the alleged will in his presence and in the presence of Mr. Rice, whose name appears as the other witness and who was dead. The witness testified that the only paper he saw was one sheet upon which was the attestation clause. Other evidence was offered which tended to establish that the will was executed in accordance with the provisions of the statute, and that question was fairly one for the jury. The learned surrogate, however, held, as a matter of law, that the will had been properly executed with all the formalities required by the statute, and refused to submit that question to the jury. Counsel for the contestants duly objected and excepted to the court's ruling. The conflicting evidence upon the question of the execution of the alleged will raised a clear question of fact which should have been determined by the jury and not by the court as a question of law. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 68; Hagan v. Sone, 174 id. 317.) It is urged by the respondent that the decree should be sustained even though such ruling was erroneous, for the reason, as stated in respondent's brief, that " a duly executed codicil will take up and vivify a defectively executed will." The codicil in question was dated and executed over six months after the will. It is not questioned but what it was executed with all the formalities required by statute, and it is contended that the proof of the due execution of the codicil authorized the admission to probate of both the will and the codicil. There are expressions in cases which sustain such contention, but, in view of the clear and unequivocal position of the Court of Appeals, it does not seem necessary or advisable to discuss those cases in detail. In the case of Booth v. Baptist Church (126 N. Y. 215) Judge FINCH, writing for the unanimous court, said: "It is unquestionably the law of this State that an unattested paper which is of a testamentary nature cannot be taken as a part of the will even though referred to by that instrument." The principle was reaffirmed in Matter of Fowles (222 N. Y. 222, 232). (See, also, Cook v. White, 43 App. Div. 388; affd., 167 N. Y. 588; Matter of Andrews, 43 App. Div. 394; affd., 162 N. Y. 1.) In so far as the respondent's position on this question is concerned, the question stands as though the Fourth Department, December, 1920. [Vol. 195. alleged will had been attested by only one witness, and the respondent is in the position of contending that a properly executed codicil which refers to a will attested by only one witness constitutes a republication of such will and, by reference, incorporates such defectively executed will into the validly executed codicil, and entitles both to probate. That was the situation in Matter of Emmons (110 App. Div. 701) where it was held that an invalid will was not given validity by a subsequent codicil referring thereto, although the codicil was properly executed. A will which was properly executed but has been rendered inoperative by law, or a will executed while the testator was of unsound mind or under restraint, may be revived and validated by the execution of a codicil. So a validly executed will which has been revoked by a subsequently executed will may be revived and republished by the execution of a codicil referring to such will. (Brown v. Clark, 77 N. Y. 369; Cook v. White, supra; Matter of Campbell, 170 N. Y. 84.) It will be noted, however, that in each of those cases the will was a valid will when executed and that its validity had been lost or suspended, and all that the codicil did was to revive and give life and vitality to the will which was executed in accordance with the terms of the statute. A codicil can give validity to a will only where the will was executed in accordance with the provisions of the statute and has, for some reason, become inoperative. The will in question did not fall within such class, and the due execution of the codicil did not entitle the will to probate. It is suggested that the will in question became in fact a part of the codicil because it was physically attached to it when it was executed, and that when the codicil was executed, published and witnessed, the will was again executed, published and witnessed, and that the will and the codicil together constituted a new will, duly signed and witnessed at the end, as required by the statute. The trouble with that suggestion is that there is no evidence in the record to sustain it. Assuming that a testator could use an old will, in making a new one, by attaching to the back of the old will a new codicil, signing at the end of the codicil, and acknowledging the papers attached together to be his last will, that was not done App. Div.] Fourth Department, December, 1920. in this case. The evidence is clear that the only paper declared in this case, and the only paper intended to be executed and witnessed was the codicil, and the fact that the will to which the codicil referred was physicially present was a mere incident. It was not referred to in any way and the testator and the witnesses did not understand that an attempt was being made to execute a new will consisting of the codicil and the old will to which it referred. The attestation clause to the codicil recites, in the usual form, that the testator subscribed his name to the instrument and declared the same to be a codicil to his last will. Under the facts in this case the will referred to in the codicil cannot be treated with the codicil as a new will. The decree should be reversed and a new trial ordered, with costs to the appellants to abide the event. All concur, except KRUSE, P. J., who dissents in a memorandum. KRUSE, P. J. (dissenting): I agree that if it was necessary to prove the original execution of the will it was error to hold as a matter of law that the evidence conclusively established such execution. But according to the testimony of Mr. Cowie, which is undisputed, he read the codicil to the testator, then gave the codicil and the original will to the stenographer and told her to fasten them together, which she did; thereupon the testator signed his name to the codicil and declared the codicil to be his last will and testament. The codicil in terms expressly reaffirms and ratifies all of the provisions of the original will save as modified by the codicil, and the original will so attached to the codicil precedes it. Thus, physically, the original will and the codicil became one document and was subscribed by the testator at the end. I think this establishes the execution of the will and codicil as the will of the testator, without proving the original execution of the will as a separate instrument. I, therefore, vote to affirm. Decree reversed and new trial granted, with costs to appellants to abide event. Third Department, January, 1921. [Vol. 195. In the Matter of the Probate of the Last Will and Testament of JOHN GRATTON, Late of the City of Plattsburgh, Clinton County, New York, Deceased. DELIA GRATTON and Others, Appellants; MARY AYOTTE and JOSEPHINE LAMONDE, Respondents. Wills - probate Third Department, January 5, 1921. when testimony of proponents contradicting evidence in behalf of contestants not incompetent under section 829 of Code of Civil Procedure purpose of said section. Where in an action for the probate of a will, an attorney who acted as counsel in a separation action between the testator and a woman with whom he had lived after his first wife had deserted him, testified in behalf of the contestants that at a meeting with reference to said action several years before the execution of the will at which others were present one or the other of the testator's daughters, beneficiaries under his will, made a request that her father make a will in behalf of herself and the other daughter, and that the father refused to make such a will at that time, and such evidence was offered for the purpose of showing a disinclination on the part of the father to make a will in behalf of said daughters and to show an importuning on their part, testimony by one of the daughters that neither she nor her sister made such a request, was not incompetent under section 829 of the Code of Civil Procedure. The purpose of said section is to protect the estate in the hands of the executors or administrators; it prevents persons interested in the event of an action or special proceeding upon the merits from testifying to conversations with the deceased, but it has no application to the present situation. APPEAL by the contestants, Delia .Gratton and others, from an order of the Supreme Court, made at the Clinton Trial Term and entered in the office of the clerk of the county of Clinton on the 9th day of June, 1919, denying contestants' motion to set aside the verdict of a jury, and also from a decree of the Surrogate's Court of the county of Clinton, entered in said surrogate's office on the 3d day of July, 1919, admitting the will of John Gratton, deceased, to probate. Arthur S. Hogue and John H. Booth, for the appellants. App. Div.] Third Department, January, 1921. Although this case has been argued with great elaboration, there is, upon the merits, very little to be said against the verdict of the jury and the resulting decree. There is no substantial evidence tending to establish undue influence, as that term is understood in the law; little, if any, evidence of incompetency on the part of the testator, and no substantial controversy as to the due execution of the instrument propounded as the last will and testament of John Gratton. The contestants have had all the advantages growing out of a jury trial; no error is pointed out in the charge of the court which merits consideration, and, unless the testimony of one of the parties was subject to the limitations provided by section 829 of the Code of Civil Procedure, the order and decree should be affirmed. John Gratton, on the 6th day of May, 1918, made and executed in due form of law his last will and testament. He died on the first day of June following, and soon thereafter this will was offered for probate. A citation returnable on the 15th day of July, 1918, was regularly issued, and upon that day objections to the probate of the will were filed. On the nineteenth day of August the surrogate of Clinton county made an order transferring the trial to the Supreme Court, directing that six specific questions of fact be tried and passed upon by the jury. The case came on for trial on the 17th day of December, 1918, resulting in answers to each of the questions propounded in favor of the validity of the will. Thereupon the surrogate decreed that the will be admitted to probate; and the contestants appeal from the order denying a motion to set aside the verdict, and from the decree admitting the will to probate. John Gratton appears to have been married early in life. His wife, after bearing him four children, deserted him and went west, taking her only son, and an unborn daughter, with her. Two daughters were left to the care of John Gratton, who subsequently went through the form of marrying a woman known as Virginia, with whom he lived for many years, though it was known to both parties to this alleged marriage that the first wife was living and undivorced. APP. DIV.-VOL. CXCV. 3 |