he applied to a scrivener, who had drawn a codicil, to draw another codicil to his will, which, however, was not drawn, nor was the will at the time produced to the scrivener. In Knapp v. Knapp, supra, it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his possession in a certain desk at his house; that he was then very aged and feeble; that his housekeeper was a daughter having an interest adverse to the will; and that the same could not be found on proper search three days after his death, is not sufficient evidence of its existence at the testator's death, or of a fraudulent destruction in his life-time, to authorize parol proof of its contents. The authorities are uniform, and no further citations are needed.

As the evidence on the part of the petitioner wholly failed to make out his case, he was not harmed by any of the evidence offered and received on behalf of the contestants to which he makes objection, and such objections need not, therefore, be considered. firmed.

Af

II. Republication

1. BY CODICIL 10

In re CAMPBELL'S WILL.

(Court of Appeals of New York, 1902. 170 N. Y. 84, 62 N. E. 1070.) GRAY, J. This was a proceeding for the probate of a will and of a codicil of Ellen Campbell, deceased, and it therein appeared that she had executed at different times, and there were existent, two wills and a codicil. On July 6, 1897, one will was executed; on July 19, 1899, another will was executed; and on December 7, 1900, an instrument was executed by the testatrix which declared itself to be a "codicil to the last will and testament of Miss Ellen Campbell, which will bears date July 6, 1897." The will of 1899 modified or changed the provisions of the will of July, 1897, in respects relating to legacies given, and in giving new legacies. Each of these wills was executed with the requisite statutory formalities, and contained the usual revocation. clause. The codicil of 1900 modified some provisions of the will of 1897, expressly revoked others, and added some legacies. It made no reference to the will of 1899. The will of 1897 and the codicil thereto of 1900 were admitted by the surrogate to probate, as constituting the last will and testament of the deceased, while the will of 1899 was refused probate, as having been revoked. The conclusions of the sur

The remainder of the opinion dealing with the question of costs is omitted. 10 For discussion of principles, see Gardner on Wills (2d Ed.) §§ 90-92.

rogate in those respects were unanimously affirmed by the appellate division, and the Home for Aged Men, a legatee under the will of 1899, appeals to this court from the decision below.

Although it is found as a fact by the learned surrogate that the testatrix, by the execution of the codicil in 1900, republished her will of July, 1897, nevertheless the finding is, in its nature, a legal conclusion from the facts, and the question of law is in the case. It is contended on the part of the appellant that the statutory provisions with respect to the destruction, cancellation, and revocation of a will are applicable to the present case. 2 Rev. St. pt. 2, c. 6, tit. 1, art. 3, § 53. They clearly are not. Whether the earlier will was revived by the destruction of a later will is not the question; nor does the validity of testatrix's action with respect to the prior will depend upon verbal declarations, as in Re Stickney's Will, 161 N. Y. 42, 55 N. E. 396, 76 Am. St. Rep. 246. The question is whether the execution by the testatrix of the codicil revived and republished the earlier will of 1897,-a completely executed and existent instrument,—so that the two instruments, together, constituted the final testamentary disposition of her estate. That such is generally the effect of a codicil, and that the will thereby republished speaks from the date of the codicil, is a proposition settled upon authority. Van Cortlandt v. Kip, 1 Hill, 590; Brown v. Clark, 77 N. Y. 369; In re Conway, 124 N. Y. 455, 26 N. E. 1028, 11 L. R. A. 796. That there intervenes, between the will referred to in the codicil and the codicil itself, another will, executed by the testatrix, and in terms revoking other wills, does not affect the result, because the codicil to the earlier will implies its existence, and effects, impliedly, if not expressly, the revocation of the intermediate will. Of course, there can be no question that the purpose of the testatrix was to re-establish her earlier will; for the title given to the instrument, its subject-matter, and the circumstances of its preparation, with the will before her, clearly indicate it. Equally clear, too, should it be that the testatrix purposed the abandonment of her second will. There is no reason in the law why her manifest purpose should not be given effect. The object of the statute of wills is to effectuate that which is proved to be the last will of a deceased person. To that end, it prescribes certain formalities of execution, whereby the possibility of imposition or of fraud is minimized. When a codicil is executed with those formalities, it is a final testamentary disposition, and the will to which it is shown. to be the codicil, if itself an existent and a completed instrument, according to the statute, is taken up and incorporated, so that the two taken together are deemed to, and necessarily do, express the final testamentary intentions. In such a case it must logically and manifestly follow that any other will or codicil prior in date to the codicil in pro- . bate is revoked, and the presence of express words to that effect in the codicil is unnecessary. See 1 Williams, Ex'rs (6th Am. Ed.) pp. 251, 252; 1 Jarm. Wills (5th Am. Ed.) pp. *114-191; Brown v. Clark,

DUNM.CAS. WILLS-11

supra; In re Goods of Reynolds, 3 Prob. & Div. 35. In Brown v. Clark, a married woman executed a codicil which, in terms, referred to and republished a will executed by her before her marriage; and it was held that it effected a re-establishment and a valid publication of the will, which had been revoked as the effect, under the statute, of the marriage. In the English case cited (In re Goods of Reynolds), a will had been executed in 1866, and a codicil to it in 1871. Later, in 1871, another will was executed, revoking all previous wills and codicils. In 1872 a codicil was executed, entitled: "This is a Codicil to the Will of B. R., Dated May, 1866." Probate was decreed of the will of 1866, and of the codicil of 1872, by which it had been revived. The codicil of May, 1871, was held not to be revived, as there was nothing to show such an intention.

I think the judgment below is right and that it should be affirmed, with costs to the respondents the Albany Historical and Art Society and the executors, to be paid out of the estate.

PARKER, C. J., and BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., concur. O'BRIEN, J., not voting.

Judgment affirmed.

2. CONSEQUENCES OF REPUBLICATION 1

GREEN v. TRIBE.

(High Court of Justice, Chancery Division, 1878. 9 Ch. Div. 231.)

Elizabeth Love, by her will dated the 9th of February, 1872, gave to trustees the sum of £1,000 upon trust to invest the same, and to pay the income to her niece, Ellen Love, during her life, and after her decease upon trust for her children as therein mentioned. And the testatrix devised her residuary real estate to trustees on trust for sale, and gave to the same trustees the residue of her personal estate, and the proceeds of the sale of her said real estate, upon trust as to two sixteenths thereof to pay the same unto her nephew Stephen Love, and as to two other sixteenths thereof upon such trusts for the benefit of her niece Ellen Love and her issue as were therein declared of the said sum £1,000 bequeathed for her benefit.

Elizabeth Love made a codicil dated the 27th of August, 1872, as follows: "This is a codicil to the last will and testament of me, Elizabeth Love, of Filstone, in the parish of Shoreham, in the county of Kent, spinster, which will bears date the 9th of February, 1872. I do hereby revoke and make void every gift, devise, appointment and bequest made by me in and by my said will to or in favor of my niece

11 For discussion of principles, see Gardner on Wills (2d Ed.) §§ 90-92.

Ellen Love and my nephew Stephen Love respectively. I confirm my said will in all other respects."

Elizabeth Love made a second codicil dated the 14th of April, 1873, as follows: "This is a codicil to the last will and testament of me, Elizabeth Love, of the parish of Shoreham, in the county of Kent, spinster. Whereas since the date of my said will I have purchased two messuages with the outbuildings, gardens, and premises thereto belonging, situate and being Nos. 5 and 6, Camden Villa, London Road, in the parish of Sevenoaks, in the county of Kent. And I have contracted to purchase two other messuages with the outbuildings, gardens, and premises thereto belonging, situate and being Nos. 9 and 10 Granville Road, in the said parish of Sevenoaks, but the purchase whereof has not yet been completed. Now I devise the said four messuages and premises respectively, with the appurtenances and all other the real estate, if any, which I have acquired or contracted to purchase since the date of my said will unto my brother Samuel Love, my brother-inlaw John Tribe, my nephew Frank Green, and William Francis Holcroft, the trustees and the executors named in my said will, and to their heirs, to, upon, and for the several uses, trusts, intents, and purposes in my said will expressed and contained of and concerning my residuary real estate (other than the messuage, cottage, and premises. thereby devised to my said brother Samuel Love for his life as therein mentioned). And I declare that the produce of the sales of the messuages and hereditaments hereby devised as aforesaid shall fall into and ..form part of my residuary and personal estate thereby bequeathed and shall be divided in the same proportions and for the benefit of the same parties as in my will is expressed and declared of and concerning my said residuary personal estate, and that each share respectively shall be subject to the same trusts, restrictions, and limitations over in all respects as the original share thereby bequeathed, and as if the share. hereby bequeathed had actually formed part of my said residuary personal estate disposed of by my said will. In other respects I confirm my said will."

Elizabeth Love died in September, 1873, and this action was brought for the administration of her estate. Two of the questions argued on the hearing were, whether the second codicil revoked the first codicil; and if not, whether the messuages comprised in the second codicil would go according to the terms of the residuary devise in the will alone, in which case Stephen Love and Ellen Love would take each two sixteenths, or would go according to the will and first codicil together, in which case Stephen Love and Ellen Love would take nothing.

FRY, J. It appears from the statements made by the plaintiff, which are not disputed by the defendants, that the purchase, a recital of which is contained in the second codicil, had been made by the testatrix after the 9th of February, 1872, the date of her original will, but before the 27th of August, 1872, the date of her first codicil. This being so, it appears to me that the second codicil must be read as if the last will

and testament there referred to had been described by its proper date, and as if the testatrix had declared that the second codicil was a codicil to her last will and testament of the 9th of February, 1872.

Upon this state of facts two questions have been raised before me: First, did the second codicil revoke the first codicil, and revive the original will in all its dispositions, and consequently restore Ellen Love and Stephen Love to the position of legatees under that will? Secondly, if this were not the case, was the real estate specifically mentioned in the second codicil devised upon the terms of the original will unaffected by the second codicil?

Both these questions must be determined by the answer to a third question, which is this: Assuming a testator to have made a will, to have made a first codicil modifying that will, to have made a second codicil describing his will by the date which the original instrument bore, and confirming that will, but observing an absolute silence with regard to the first codicil, what is the effect of the second codicil? Does it revive the first will as it originally stood, or does it confirm the original will as modified by the first codicil?

The general principle I take to be clear. On the one hand, where a testator in a codicil uses the word "will" abstractedly from the context, it will refer to all antecedent testamentary dispositions which together make the will of the testator, and consequently where the testator by a codicil confirms in general terms his will or his last will and testament, the will, together with all codicils, is taken to have been confirmed. "The will of a man," said Lord Penzance in Lemage v. Goodban, Law Rep. 1 P. & M. 57, "is the aggregate of his testamentary intentions so far as they are manifested in writing, duly executed according to the statute." On the other hand, it is equally clear that the testator may by apt words express his intention to revoke any codicil already made, and to set up the original will unaffected by any codicil. The question, therefore, which I have to consider is, whether the reference to the date of the original will is an indication of the intention to deprive all instruments other than the original will itself of any force-in fact, whether such a reference to a will effects a revocation of the antecedent codicils. To this inquiry a series of cases appears to afford a clear negative answer.

The first to which I desire to refer is the case of Crosbie v. Macdoual, 4 Ves. 610. There the testator made a will and five codicils, and a question arose as to the effect of the fifth codicil upon the fourth codicil, by which certain annuities had been given. The fifth codicil recited the making of the will and the date which it bore, substituted one executor in the place of another, was silent as to all antecedent codicils, and concluded by confirming the testator's said will in all other respects. The then Master of the Rolls held that the fourth codicil was not revoked by the fifth. This decision rested upon two propositions. The first, that if a man ratifies and confirms his last will he ratifies and confirms it with every codicil that has been added to it. The second,