Ludlum v. Otis , 22 N.Y. Sup. Ct. 410 ( 1878 )

Potter, J.:

This is an appeal from the decree of the surrogate of the city and county of Noav York, refusing to probate a will and testament made hy Benjamin B. Ludlum, dated October 18, 1869, upon the ground that the same had been revoked by a subsequent will made by the said Ludlum, at Nyon, in SAvitzerland, April 30, 1875, and admitting the latter Avill to probate instead of the former.

It is conceded that the former Avill Avas duly executed, and was ■ propounded, by tbe appellant as executor thereof. The respondent, who is the sister of the testator, opposes the probate of the first will, and propounds the second will for probate, under which she claims as devisee all his estate situated in New York. The testator left him surviving only his sister, respondent, and his mother, the latter of whom died before the will was propounded. ■ The first will having been duly executed, these questions are pre■sented upon this appeal, viz.: Was the wfill of April, 1875, executed in Nyon, Switzerland, properly executed to devise real estate situated in New York? Did such will revoke the former .will of October, 1869, executed in New York ? Is the respondent the devisee under the second will ?

The manner and circumstances attending the execution of the second wfill are substantially these: The testator sent for Gabriel Dufone, a notary, residing at Nyon, with whom he was acquainted, to draw his will. There were present with the testator' and the notary two other persons, who wore also acquainted with the testator and the notary, and who were sent for by the testator to witness the will. In their presence the testator stated to the notary that he wished him to draw his will, and that he had sent to him and the witnesses to come for that purpose. He gave the instructions and dictated the will to the notary in presence of the witnesses, who heard the instructions, and the will was drawn by the notary in their presence, and the testator signed it in their presence after it had been read to him. The testator requested one of the witnesses to witness it in presence of the notary and of the other witness, and the other witness was requested by the notary to witness it in the presence of the testator, and the other witness, and both the witnesses signed it, and also the notary, and all the signatures were made in the presence of the four persons named. We think these acts and declarations constitute an execution of the will according to the laws of the State of New York, where the property devised was situated. (Brinckerhoff v. Remsen, 8 Paige, 488; Gilbert v. Knox, 52 N. Y., 125; Campbell v. Logan, 2 Bradf., 98; Moore v. Moore, 2 Bradf., 265; Thompson v. Stevens, 62 N. Y., 634; Peck v. Cary, 27 id., 9.)

No question or suggestion is made that the second will was not a valid bequest of the personal estate of the testator. This will, therefore, disposed of all the known property which belonged to the testator. Did this will revoke the former will ?

A will which makes a. full disposition of all the testator’s property is inconsistent with the existence of any prior will, and ' therefore amounts to a revocation of all wills previously executed. ■' (Simmons v. Simmons, 26 Barb., 68.) And so a second will containing provisions inconsistent with a former will revokes the former will in respect of the inconsistent portion. (Brant v. Wilson, 8. Cow., 56; Nelson v. McGiffet, 3 Barb. Chy., 158; 2 R. S., tit. 1, chap. 6, § 48 [original page, 65].) So effectual is the revocation by a subsequent will,' that the making and destroying of a second will, or revocation by subsequent will, will not revive the first will, unless it appear by the terms of such revocation that it Avas the intention of the testator to revive and give effect to his first Avill, or unless the first Avill be duly republished. (2 R. S., § 53 [original page, 66]). We must conclude, therefore, that the first will was revoked by the second. This brings us to the consideration of the question, what disposition did the testator make of his property, situated in New York, by moans of the second will? The structure and language of the will itself are singularly inexplicit. Instead of naming the devisees, as is easy and usual, and as he did in his first Avill and attempted eodi,.cil, he devises the property to so indefinite a devisee as his natural heirs ‘■'■heriliers naturels,” and refers to some former arrangement or disposition, and to increase the difficulty and uncertainty in this regard, the second will is expressed in the French language, and the translators-differ in their translations of it.

• It is contended upon the part of the appellant, Avith a good degree of plausibility and force, that the third article of the will, which disposes of the NeAV York property as the remainder of his estate, refers to a former arrangement or disposition of that property in such a manner as to make that arrangement or disposition a part of-the second will, and that the devisees designated by that instrument are the testator’s cousins John and Robert Ludlum, and avIio are also mentioned by name as the devisees of a part of his estate under the first will. It is conceded that this paper, though purporting to be a codicil to the first will, is so defectively executed as to-be invalid as a Avill. This codicil purports to dis-' pose of all the testator’s property, and the devisees and legatees therein are mentioned by name. Is this codicil so referred to in the last will as to constitute a part of it?

The rule upon this subject, as dei-ived from the cases, will be found in 1 Bedfiold on Wills, 261, as follows: That if a testator in his will refers expressly to any paper already written, and has so described it that there can. be no doubt of the identity, that paper, whether executed .or not, makes part of the will; but there must be no reasonable question of the identity of the paper and of its existence at the date of the will. (Habergham v. Vincent, 2 Ves. Jr., 204, 228; Dillon v. Harris, 4 Bligh, [N. S.], 329; Thompson v. Quimby, 2 Brad., 458.) In Smart v. Prujean (6 Ves., 519), the rule is stated thus: The properly'.attested instrument, in order to have a paper incorporated into it, must describe it so as to be a manifestation of what .paper is meant, in such .a way .that the court can be under no mistake.

It is the -contents of a paper that may -be incorporated into a well executed will. The third article of. this Ny.on will does not :in terms refer to a paper; it is. simply an arrangement or disposition which may or may not be expressed in a paper. It may refer to the codicil by which the testator attempted to give his property to his cousins, or it'may refer-to a -vexhal arrangement, disposition or ixnderstauding which reconciled ..the testator with his mother and sister, and induced him to .change the objects of -liis bounty. If it had been meant to refer to the codicil, it was both-easy .and natural to have .named the codicil by its ¡date,-by'whom, when, and where made, and with whom deposited, as the testator-did in this codicil to his first will. If it referred tq.an unwritten arrangement, understanding or reconciliation between him .and his mother- and sister, the reference to it would necessarily ..be indefinite. It was obviously some arrangement or disposition by which he gave, or by which ho was induced to.give .his -New York .property to his natural heirs. Who were■ his -natural heirs? We. should say,.to a-man, reared and educated-in Now York,-the term natural heii's, would be understood and regarded .as a-mother and sister, rather than cousins in any degree. We -must conclude, that the reference, to some ai'rangement or-dispositionis too doubtful.and. unsatisfactory to .allow of the incorpoi’ation of the ;paper,-. called a codicil into the last or Nyon will. It results -from these views that the devise of the New York property is to his mother nnd sister as his natural heirs, or that the devisees-are so indefinite as to invalidate it as a devise to any one; -and in that case the property descends to the mother and sister, and after the death of the mother to the sister alone.

The decree should be affirmed, with costs to both appellant and -respondent, to he paid out of the'estate.

Ingalls, P. J., and Daniels, J., concurred.

Decree affirmed, costs of appellant and respondent to he paid out of the fund.