Citation Numbers: 1 N.J. Misc. 54
Judges: Leaming, Ordinary
Filed Date: 1/31/1923
Status: Precedential
Modified Date: 7/25/2022
The essential facts are sufficiently outlined in the opinion filed in the orphans court.
While the arguments have taken a wide range it is apparent that the single inquiry here involved is purely a question of identity. Is the will which has been presented the will to which testator referred in the codicil which he subsequently executed ?
When executed this will was by testator placed in the cus-, tody of his' attorney for safekeeping. As late as 1915 testator gave directions to his attorney touching this will that fully recognized it as his last will at that time. Two years later, and while this will was still in the attorney’s custody as tes
11 is difficult to conceive how testator could have more forcefully identified this will as the will to which the codicil referred. A reference in a codicil to the date of the will ordinarily might afford a more satisfactory identification, but it is far from clear that an erroneous reference to the date of the will would not be fully overcome by acts of a testator of the nature above narrated, in the absence of satisfactory evidence that any other will had at any time been executed by testator.
Little assistance is to be found in adjudicated cases -in which the effort is to identify which of several instruments, either existing or known to have existed, a codicil may.refer to. Here diligent search has found no other will, and the codicil was with this will, and it is not known that testator ever executed any other will, and it is known that testator not only ordered this codicil kept with this will, but also intended that it should be kept with this will as its codicil, since no other sane purpose could have existed. Is this manifest and unmistakable intent upon the part of testator to be overthrown by the circumstance that certain provisions of the codicil do not harmonize with this will? It is by no means unusual for provisions contained in a single will to conflict and disclose in one part of a will a misapprehension on the part of testator of other provisions in the same will, and the
A decree will be advised confirming the decree of the orphans court.