Opinion
December 23, 1960
S. Sidney Smith for proponent.
Fein, Kisver Silverbush for Harry Levine, objectant.
Lavery, Lauterback Babchak for David Levine and another.
Kalik, Kalik Diamond for Mary Beitz and others.
William S. Evans, as special guardian for infant legatees and attorney for legatees in military service.
In this probate proceeding it is undisputed that the testator validly executed a will and four codicils.
It appears that shortly before the testator left his residence to enter the hospital in which he died, he executed a fourth codicil. This instrument made certain directions and then stated that "the codicil dated the 14th day of May, 1954 [first codicil] is herewith cancelled and of no force and effect, it being my intention that this codicil is to supersede the provisions of the codicil dated the 14th day of May, 1954 [first codicil]."
After the execution of the fourth codicil, the testator placed the instrument in a dresser drawer. After his death, the will and the first three codicils were discovered but the fourth codicil was never found.
The court is now required to determine the disposition of the fourth codicil and its effect upon the first codicil.
There is a presumption of revocation created where a will, shown to have existed and to have been in the testator's possession, cannot be found after his death ( Matter of Staiger, 243 N.Y. 468, 472). The evidence in the case at bar was not sufficient to overcome this presumption.
The execution of the fourth codicil accomplished a revocation of the first codicil, and the destruction or revocation of the fourth codicil does not revive the first codicil ( Matter of Hill, 176 Misc. 774 and the cases cited therein).
The contention that the draftsman erred in inserting the clause of cancellation in the fourth codicil is not supported by the evidence. Accordingly, the first and fourth codicils will be denied probate. Settle decree.