56 How. Pr. 125 (N.Y. Ct. App. 1878)

A properly executed codicil republishes a will revoked by the testator’s subsequent marriage, effectively reinstating the will’s provisions as of the codicil’s execution date.

Summary

This case concerns the validity of a will executed by an unmarried woman, subsequently revoked by her marriage, and then purportedly revived by a codicil executed after the marriage. The court held that the codicil, which expressly referred to and reaffirmed the will, effectively republished the will, making it valid despite the intervening marriage. The court reasoned that a codicil, when properly executed, incorporates the will it references, and the act of publishing the codicil serves to republish the will itself.

Facts

Emma G. Simpson (formerly Emma G. Clark), an unmarried woman, executed a will in 1873. Subsequently, she married, which, under the law at the time, revoked her will. After her marriage, she executed a codicil in 1876. This codicil specifically referred to her prior will by date and witnesses and declared her intention to republish, reaffirm, and adopt the will as modified by the codicil as her present will. The original will was present during the codicil’s execution and identified by one of the witnesses.

Procedural History

The Surrogate’s Court initially concluded that the will was revoked by the subsequent marriage of the testatrix. The General Term reversed the decree of the surrogate and remitted the proceedings to him with directions to admit the will to probate. This appeal followed.

Issue(s)

Whether a will, revoked by the subsequent marriage of the testatrix, is revived and republished by a codicil that refers to the will and expresses the testatrix’s intention to reaffirm it, where the codicil is executed with the formalities required by statute.

Holding

Yes, because a properly executed codicil operates as a republication of the will to which it refers, thereby validating the will despite its prior revocation by marriage.

Court’s Reasoning

The court relied on the well-established doctrine that a codicil, when executed with the statutory formalities for wills, republishes the underlying will, except as modified by the codicil itself. The court stated, “The general doctrine is well settled that a codicil executed with the formalities required by statute for the execution of wills, operates as a republication of a will so far as it is not changed by the codicil.” The court noted that this principle had significant consequences, particularly concerning after-acquired property. By republishing the will, the codicil makes the will speak as of the date of the codicil, extending the will’s reach to property acquired after the original will’s execution but before the codicil. The court emphasized that the codicil expressly referred to the will, identified it, and declared the testatrix’s intent to reaffirm it, leaving no doubt that the codicil was intended to revive the will. The court also cited authorities supporting the proposition that a testamentary document may be incorporated into a will by reference if the will clearly identifies the document. “I am of opinion that the publication of the codicil was a publication of the will, and that both papers together are to be considered as the will of the testatrix.”