Opinion
July, 1908.
Harry Van Ness Philip, for proponent.
Sullivan Cromwell, for contestants.
The interest which decedent acquired under the will of his father in the undisposed of part of the real estate of the latter, situated in this county, is sufficient to give the court jurisdiction to entertain this proceeding to probate the papers propounded as the will of the decedent and the codicil thereto. Code Civ. Pro., § 2746, subd. 4. The right of the petitioner to initiate the proceeding has been satisfactorily established upon the inquiry I have made in regard to his status. Gove v. Harris, 4 Dem. 293. He is, however, unable to produce or secure the production of the paper propounded as the will as distinguished from the codicil, in order to prove it in the customary way in open court, and he cannot prove it by commission because the subscribing witnesses reside one in this State and the other in the State of New Jersey, and the paper itself is deposited in a court in the District of Columbia, by which it has been admitted to probate. Matter of Cameron, 47 A.D. 120, affd. 166 N.Y. 610; Matter of Law, 80 A.D. 73, 75, 76, affd. 175 N.Y. 471. Nor can he prove it by an exemplified copy of the proceedings of the court which admitted it to probate, as it is incompetent and inadmissible as evidence for the purpose. Code Civ. Pro., §§ 2618, 2619, 2620; Matter of Delaplaine; 45 Hun, 225. It is proposed to probate or establish the will by proving the codicil which refers to it. This cannot be done without showing that the statutory requisites as to the execution of a will have been complied with, and this the petitioner is in no position to do in this case. Matter of Andrews, 43 A.D. 401; Matter of Conway, 124 N.Y. 464; Matter of O'Neil, 91 id. 523; Cook v. White, 43 A.D. 393, affd. 167 N.Y. 588; Matter of Carll, 38 Misc. 474-5; Matter of Emmons, 110 A.D. 701. In Brown v. Clark, 77 N.Y. 369; Matter of Campbell, Id. 84, and Cook v. White, supra, where it was held that a legally executed codicil revived or effected a ratification or establishment of the will, there was proof of compliance with the statutory requirements as to the will itself. The codicil cannot be admitted to probate as a separate and independent testamentary paper. It displaces one of three persons named as executors in the propounded paper, and appoints another as an executor thereof in his stead, and makes no disposition of property whatever. From the nature of this change it is obvious that the operation and efficacy of the codicil are necessarily dependent upon the establishment or proof of the paper to which it relates as an effective testamentary instrument. Matter of Emmons, 110 A.D. 704, 705. Petition dismissed. As a consequence, the motions for commission and temporary administrator must be denied.
Petition dismissed.