In re the Probate of the Paper Propounded as the Will of Pinckney

The Surrogate.

The first question raised on this hearing, was whether I was at liberty to take parol evidence to explain, if possible, the singular state of facts presented. I decided to do so, but I cannot say that the evidence has tended to enlighten the mystery.

I find as facts in the case, 1st. That the decedent was, on the 20th or 21st day of June, 1861, furnished with a will drawn up by Mr. Bradford, and engrossed by his clerk, Mr." Hammond. 2d. That this will was, at some time, executed by him, the day of the date being left blank. 3d. That the paper here propounded as the last will of decedent, was subséquently executed by him on the 16th day of March, 1863. 4th. That the paper here propounded as a codicil, was also executed by him on the 28th day of March, 1863. And, 5tK. That another codicil was drawn up for him on the 3d day of June, 1864, which has not been found, but was left in his possession by Mr. Hammond, who drew it.

The codicil here offered, declares itself to be a codicil to a last will of the decedent, bearing; date the 21st of' June, 1861. Am'I at liberty to say that it belongs to the will of the 16th of March, 1863 ? It is argued that I ain; and that because-it fits'the fifth paragraph of the last named will, I may reject the date to which the codicil itself refers, and may attach the codicil to the will of a date which it ignores. ■

I do hot think I - can admit'any parol evidence, much . less any conjecture or impression, to vary or contradict the words of the codicil- itself. I must collect the intention of the decedent from the words he has used. This is the only, rule on which -any Court can' rely with any safety.-" Extrinsic evidence cannot be resorted to, to raise doubts as .to the testator’s intention, where the terms are not ambiguous. (See Wigram on Exitrinsic Evidence, pp. 7 and 8; Jackson v. Squire, 5 Cowen, p. 228; Mann v. Mann, 14 John. R., p. 1; Jarman on Wills, vol. 2, p. 761.)

The case before me, although singular, is not altogether without precedent. I find one in 3 Vesey JR., p. 402. There the testator executed a codicil in 1776, referring to a will of 1752; devisees of real estate under a will of 1756, filed a hill to sustain the latter; evidence of mistake was rejected, and the bill dismissed. The codicil was held to cancel the intermediate will. (And see Crosbie v. McDonald, 4 Vesey R., p. 616.)

In Hall v. Tokeler, 2 Robert., p. 318, the decedent executed two wills, destroyed the earlier one, animo revocandi, and then "executed a codicil, showing an intention-to revive it; and the codicil was held to revoke the later will, although inoperative to republish the former one, which had been destroyed.

There "is no ambiguity here. The testator has said that this codicil is a codicil to his will of 21st June, 1861. He has, by his first codicil, republished that will as his “ last ” will, thereby revoking the will of 16th March, 1863. He has not thereby' revived the will which he designates" as that of 21st June; 1861. The effect of what he has done, has been to revoke and abrogate both wills. The codicil propounded cannot stand alone as a testamentary disposition; "

There is no way but to declare intestacy in this estate. The widow’s petition for administration will be granted.