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In re the Estate of Diament

In the matter of the estate of Charles G. Diament

In re the Estate of Diament, 103 A. 199 (N.J. 1918)
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Court
Supreme Court of New Jersey · State Highest Courts
Decided
March 4, 1918
Judges
Affirmance, Bergen, Black, Gardner, Garrison, Heppenheimer, Kalisch, Minturn, None, Parker, Reversal, Swayze, Taylor, Trenchard, White, Williams
Citations
103 A. 19988 N.J. Eq. 5523 Stock. 5521918 N.J. LEXIS 306
Headnotes
A codicil is not a revocation of a will but a republication thereof except as altered ; and where a testator executed a will and three codicils, and afterward revoked the last codicil, the will and the first two codicils wore -properly admitted to probate and the third codicil properly rejected.
Summary
On appeal from a decree of the prerogative court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Swayze

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The opinion of the court was delivered by Swayze, J.

The question arises on the offer to probate the will and codicils of Charles G. Diament. The orphans court admitted to probate the will and the two earliest codicils and rejected the last codicil.

The prerogative court affirmed the decree.

*553 The last codicil was not produced. "VVe are satisfied, as the lower courts were, that the testator destroyed this codicil with intent to revoke it. The question presented is what effect this had upon the will and the two earlier codicils. The case was treated in the lower courts and argued here as if it were a case of the revocation of an earlier by a later will and the subsequent cancellation of the latter. Such is not the situation.

A codicil is so far from being a revocation of any existing will and codicils that it is a republication thereof except as altered and frequently, as in the first codicil to the present will, ratifies and confirms the former document except so far as altered. Republication by a codicil was most important before the statute provided that a will might pass real estate acquired after its execution. How important this effect of a codicil still is may be seen by a glance at Jarman’s chapter on Republication. 1 Jarm. (R. & T.) 362.

We have, then, instead of the somewhat difficult question of the effect of the cancellation of a later will upon an earlier one, the comparatively simple question of the construction of a will thrice republished, and codicils republished, one of them once and one of them twice.

We may treat the case as if all three codicils were actually before us with the last duly canceled by the testator. The result is simple. The third codicil must be rejected even as the canceled portions of Erothingham’s will were rejected. Frothingham’s Case, 76 N. J. Eq. 331.

Let the decree be affirmed, with costs.

For affirmance — Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 13. For reversal — None.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1934: 11937: 11942: 11944: 11946: 11947: 11955: 119342026peak 1934 · 1

Relies on it most ⓘ

  1. Creech v. McVaugh54 A.2d 443 (N.J. Ct. of Ch. 1947)
  2. Kennedy v. Mockler118 A.2d 93 (N.J. Super. Ct. App. Div. 1955)
  3. Gerber v. Gulick45 A.2d 129 (N.J. Ct. of Ch. 1946)
  4. Heise v. Earle35 A.2d 880 (N.J. 1944)
  5. In re Smalley24 A.2d 515 (N.J. Super. Ct. App. Div. 1942)
  6. Bohny v. Associated Dyeing & Printing Corp.171 A. 133 (N.J. 1934)

Most recent

  1. Kennedy v. Mockler118 A.2d 93 (N.J. Super. Ct. App. Div. 1955)
  2. Creech v. McVaugh54 A.2d 443 (N.J. Ct. of Ch. 1947)
  3. Gerber v. Gulick45 A.2d 129 (N.J. Ct. of Ch. 1946)
  4. Heise v. Earle35 A.2d 880 (N.J. 1944)
  5. In re Smalley24 A.2d 515 (N.J. Super. Ct. App. Div. 1942)
  6. In re Estate of Block190 A. 315 (Essex Cty. Surr. Ct. 1937)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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