Matter of Mercer

Lawrence E. Brinn and Peter F. De Gaetano for Paul W. Havener, proponent. John M. Foley, Saul D. Kassow and Albert A. Blinder for Albert Mercer, contestant. Saul S. Meyers and Irving Jacobson for William Mercer and another, contestants. will in his safe and his attorney held the existent will. There was no evidence that testator had a copy of the latter will in his safe on the date of the codicil and, consequently, it appears that he indorsed the codicil upon the instrument available to him. At the date of the codicil, testator had an effective will. His intention to revoke this instrument is an essential element of any act that can be considered a revocation. He clearly expressed an intention to modify his will, not to revoke it in its entirety. He did not identify the will to which he referred. In the absence of other facts, it would be assumed that he intended to modify the will that was effective rather than an instrument that was without legal effect. Some evidence of a contrary intention, clearer than the use of the revoked paper, should be required to destroy the effective will and republish the revoked instrument. The court does not regard the writing upon the revoked instrument, without reference in the writing to that instrument or other identification of it, as a sufficient basis for a holding that the revoked will was republished and the effective will was revoked. The will of May 15, 1951, and the codicil dated November 28, 1952, will be admitted to probate. The foregoing conclusions have been reached without consideration of the testimony of the witness Havener as to a conversation with testator. Objections made earlier in the hearing apply to this testimony and it is stricken out. Submit decree on notice.