In re the Estate of Wiggins (45 A.D.2d 604, 1974)

Simons, J.

In 1948 Fred and Helen Wiggins executed a joint will. Mr. Wiggins died in 1948. In 1968 and 1969 Helen Wiggins executed two codicils changing the testamentary disposition of her estate. She died in 1969.

The issue before the court is whether the codicils were effective to alter the dispositions contained in the will of Mr. and Mrs. Wiggins. Upon a petition requesting reprobate of the will, probate of the two codicils and construction of the conflicting provisions contained in the instruments, the Surrogate admitted both the will and the codicils to probate and held that the bequests in the codicils Were to be given effect, finding that the. will did not constitute a contract between the two testators for joint disposition of their estates.

The will provided that the estate of the first to die was to pass to the survivor and upon the death of the survivor, certain specific legacies totaling about $1,800 were to be paid. The residue was bequeathed to the First Baptist Church of Warsaw, New York, for scholarships and general church purposes. The two codicils bequeathed specific legacies totaling approximately $27,000.

At the time of Fred Wiggins’ death the value of the estate was approximately $60,000. The couple had no children and Mrs. Wiggins had been employed during their marriage and had contributed some of her earnings to their joint property. Ih addition, Mrs. Wiggins had inherited property worth about $27,000 from her relatives, prior to her husband’s death. It is alleged that the value of the joint estate has increased as the result of careful management and the predictable influence of inflation during the 21-year period between Mr. Wiggins’ death and the death of his wife and now' exceeds $200,000.

The positions of the Surrogate and the dissent are grounded upon paragraph Second of the will which provided in part: