Matter of the Probate of the Last Will and Testament of ANN MCMULLEN, Deceased.

(Surrogate's Court, Erie County, May, 1916.)

WILLS-REVOCATION OF PRIOR WILLS.

A last will which makes a full and complete disposition of all the property of testatrix amounts to a total revocation of any prior will and, therefore, need not contain a revocation clause.

PROCEEDING upon the probate of a will.

Kenefick, Cooke, Mitchell & Bass, for petitioner.

Edward N. Mills, for contestants.

·

A petition for

HART, S.— The decedent, Ann McMullen, made and executed a series of eight wills and codicils during a period from May 6, 1908, up to and including October 7, 1914. probate of the last will dated July fifteenth, and a codicil of October 7, 1914, were filed and citations regularly issued to the proper parties. Upon the return day of the citation, objections to the probate were filed by certain next of kin and legatees, who had received more favorable consideration in previous wills. A preliminary examination of the subscribing witnesses was had, and the testatrix's lawyer produced the six preceding wills and codicils prepared by him, which are on file as exhibits in the proceeding for probate. Objections to probate have been withdrawn by the contesting heirs who consent to the probate of the will and codicil, and petition this court for a construction whereby clause" Fifth " of the codicil of January 24, 1911, may be embodied and included as a part and portion of the last will and testatment of the decedent.

The group of wills and codicils executed by the testatrix are not radical in their changes, but indicate a desire to modify

bequests and legacies to relatives and charitable institutions under changing conditions.

ments.

The will offered for probate is carefully prepared and, while it contains no revocation clause, is divided into five articles and subdivisions, three of which articles contain a sequence of bequests, many of which are contained in the preceding instruArticle fourth devises and bequeathes all the rest, residue and remainder of decedent's estate. Article fifth appoints an executor and defines his powers. The codicil, executed a few months later, modifies some of the bequests and republishes the will of July fifteenth in the following language:

"Fourth. I hereby declare said instrument made by me on said July 15th, 1914, for my last will and testament except so far as it does not contain the things provided for in this codicil, to be a declaration of the manner in which I wish to dispose of my property; and I hereby publish and declare said instrument made said July 15th, 1914, and this codicil, to be, together, my last will, using the said word "will" according to the definition thereof in section 2768 of the Code of Civil Procedure of the State of New York, so as to signify said last will and testament and this codicil thereto.'

The law is well established that a testator can leave but one last will, that a will can be modified by any number of codicils, all being of equal force, if not contradictory. But a will which makes a full and complete disposition of all the testator's property renders useless, and therefore amounts to a total revocation of, every prior will.

I have examined the brief and cases cited by contestant wherein he seeks to have the legacy contained in the codicil of January 24, 1911, read into the last will. The plan proposed by contestant I believe would be in conflict with the intention. of the testator, because of a complete disposition of the estate contained in the last will and codicil.

Decreed accordingly.

Matter of the Transfer Tax upon the Estate of JOHN G. WENDEL, Deceased.

(Surrogate's Court, Westchester County, May, 1916.)

CONSTITUTIONAL LAW-TAX LAW, § 220 (6)-POWER OF APPOINTMENT— TRANSFER TAX-STATUTES.

Section 220 (6) of the Tax Law which declares: "whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will," is constitutional when the power of appointment is exercised by will, even though the transfer would not be subject to the tax except for the exercise of said power.

The question of the constitutionality of said statute, the power of appointment by deed and not by will not being entirely free from doubt, will be sustained on the ground that a statute should not be pronounced void by a court of first instance.

APPEAL by the state comptroller from an order assessing the transfer tax.

Francis A. Winslow, for state comptroller.

Burlock E. Rabell, for administratrices (respondents).

SAWYER, S.-John G. Wendel died intestate on the 30th day of November, 1914, and letters of administration were duly issued upon his estate by the surrogate of Westchester county on the 30th day of January, 1915.

John D. Wendel, the father of the deceased intestate, died on November 24th, 1876, leaving a last will and testament, wherein he devised certain real estate to his son John G. Wendel, for life, with power of appointment by deed or will to his lawful issue

or to his sisters or their issue in such shares and for such estates and on such conditions as he might think fit.

The paragraph of said will containing such power of appointment is as follows:

"Twenty-first: To my son John G. Wendel I devise the southerly half of the block of ground lying between Broadway and Seventh Avenue and 38th and 39th Streets, that is to say eighteen lots of land known by the Ward Map numbers of the City as 4720, 4721, 4722 and 4723 on the west side of Broadway and 47232, 4724, 4725, 47252, 4726, 4727, 47272, 4728, 4729 and 472911⁄2 on the north side of West 38th Street and 1190, 1191, 1192 and 1193 on the East side of Seventh Avenue to have and to hold the said eighteen lots of land for and during his life the rents issues and profits I devote expressly to his own use and benefit, and I authorize him to appoint. the said real estate to and amongst his lawful issue or to his sisters or their issue in such share and for such Estates and on such conditions as he may think fit by deed or by will, and in case he shall leave no such valid appointment I devise the said lots of land to his lawful issue and if he shall leave no such issue then to his sisters their heirs and assigns in fee simple forever."

Pursuant to such power of appointment, the donee, John G. Wendel, on or about the 23d day of January, 1911, delivered to his sisters six certain deeds conveying to them the premises mentioned in the 21st paragraph of the will. He also conveyed to them by the same instruments his life interest in the premises in question.

The transfer tax appraiser has refused to tax said real estate in which the deceased had a life interest and which was transferred by him by deeds, pursuant to the power of appointment mentioned in the father's will.

The state comptroller now appeals, claiming that the real

property thus transferred was taxable at the date of the death of the decedent herein.

Section 220, subdivision 6, of the Transfer Tax Law is as follows: "Whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this chapter, such appointment when made shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will."

This portion of the statute is in substance the same as the original one of 1897.

The act is constitutional, when the power of appointment is exercised by will, even though the transfer would not be subject to the tax except for the exercise of the power of appointment. (Matter of Vanderbilt, 50 App. Div. 246, affd., 163 N. Y. 597; Matter of Dows, 167 id. 227, sustained, 183 U. S. 278; sub nom. Orr v. Gilman.)

The facts in the Vanderbilt case were as follows: William H. Vanderbilt died in 1885, leaving a last will and testatment. His son Cornelius was to receive the income for life of a certain trust fund. Upon his death the fund was to be paid to his lawful issue in such shares or proportions as Cornelius might by his last will and testament direct or appoint. Cornelius died leaving a last will and testament, and exercised the power of appointment mentioned in the will of his father. At the time of the death of William H. Vanderbilt this fund or the right to succession was not taxable under the Collateral Inheritance Tax Law. The court, at page 252, held as follows: "If the right of succession to this fund was taxable, as we think it was, the Legislature had the power to declare that the tax should be imposed as of the time at which the right to possession of the amount appointed of the fund to each remainder