Gelbke v. Gelbke

88 Ala. 427

• Court: Supreme Court of Alabama
• Decided: November 15, 1889
• Status: Published

Opinion

SOMEEVILLE, J.

We fully concur with the Circuit Court in the view, that the codicil to the will in question did not operate to revoke the testator’s will bearing date March 27th, 1885. This codicil .was dated March 30th, 1885 — three days after the will — and was in the following words: “As codicil to the foregoing last will and testament, and to be taken as a part thereof, I, Frederick Louis Gelbke, hereby declare that I hereby revoke and annul all wills by me heretofore made, and especially that executed in New Orleans, State of Louisiana, whilst temporarily there during the late civil war, in 1860 or 1861, wherein my brother, Charles W. Gelbke, was named as sole legatee — the same are hereby all cancelled.”

The will and codicil are to be construed together as one instrument, speaking from the date of the codicil. It rather republishes than revokes the will of which it forms a part. Its clear intention was to expressly revoke all former wills bearing date prior to March 27th, 1885, but not the one of which it forms a part, and to which it gives fresh affirmation and vitality.

Affirmed.