By the Court,
Davies, P. J.First. As to the validity of the will bearing date September 20, 1842, we see no serious question made. At the time, the testator was of sound and disposing mind, and the will was executed in conformity with all the legal requisites, and none of its provisions are challenged as violating any principle of law.
We also think that no revocation in fact, or by operation of lawT, has been shown. Hone in fact has been alleged, and we do not see how, if the testator had no testamentary capacity after his attack on the 19th of July, 1849, to make a valid disposition of his property, it can with reason be said he had such capacity to revoke a legal disposition previously made. We regard the provisions of the revised statutes relative to the revocation of last wills and testaments, (2 JR. S. 64, § 42,) as furnishing a conclusive answer to the argument *279urged upon us, that the will of Mr. Parish was revoked by implication.
Second. In relation to the appeal of Miss Ann Parish and Mrs. Sherman from that portion of the decree or judgment of the surrogate, admittin'g to probate the codicil of August 29, 1849, and which was republished December 17, 1849, it is objected that they have no interest in the question presented on that appeal, and have therefore no right to make it. It is true, that if the will is established, they will take nothing by this codicil, and lose nothing by it, and whether the decision of the surrogate in reference to it is affirmed or reversed, their interests are unaffected.
But they are parties to the proceedings before the surrogate. They have been cited to appear before him, and have been heard there, and if the decision as to the will shall not be sustained, they would have a direct interest in the property passing under this codicil. The provisions of the revised statutes on the subject of appeals from the surrogate are, that after any will of real or personal estate, or both, shall have been proved before a surrogate, any devisee or legatee named therein, or any heir or next of kin to the testator may, within three months thereafter, appeal to the supreme court from the decision of the surrogate, either admitting such will to record or probate, or refusing the same. (2 B. S. 66, § 69.) By section 92, page 68, same volume, it is declared that the term “will,” as used in that chapter, shall include all codicils as well as wills.
We think, therefore, under these provisions, these appellants had the right to appeal to this court from that part of the judgment of the surrogate admitting to probate the codicil of August 29, 1849.
We are not satisfied, from the testimony in this case, that at the time of making this codicil, or at the time it was republished, the testator had testamentary capacity to make the same; and for the purpose of ascertaining this question of fact, we direct a feigned issue to be made up to try that *280question; and we direct the same to he tried at the next circuit court, to he held in and for the city and county of New York. The judgment of the surrogate admitting said codicil of August 29, 1849, to probate, is reversed.
[New York General Term. December 31, 1858.Third. The appeals of Mr. Delafield and Mrs. Parish from that part of thezsurrogate’s judgment refusing to admit to probate the second codicil, executed September 15,1853, and the third codicil, executed June 15, 1854, properly bring before this court the correctness of the surrogate’s decision on these codicils.
We entirely concur in the conclusions to which he has arrived in reference to them, and deem his reasons therefor sound and unanswerable. His judgment refusing to admit these codicils to probate is affirmed.
The costs of all the parties on these appeals, with a reasonable counsel fee, to be certified by one of the justices of this court, may be paid out of the funds of the estate, (a)
Davies, Ingraham and /Sutherland, Justices.]
Ann Parish and Martha Sherman waived their right to a feigned issue, to try the validity of the first codicil,'as a matter in which they had no interest ; the will being held to be valid, by which they were specific legatees and their brothers the residuary legatees. They appealed directly to the court of appeals. Susan M. Parish also appealed, and upon her death her appeal was revived in the name of her devisees, her brothers Henry, J oseph, Edward, Bichard and Bufus Delafield. The brothers of the testator, Daniel and James Parish, made no appeal from that part of the decision of the surrogate admitting the first paper to be a codicil to the will. It embraced real estate only, which could not be affected by a decree upon the probate. The court of appeals affirmed the decision of this court, and held the testator to have been incompetent from the date of his attack in 1849, and that he so continued. (25 jV. T. Rep. 9.) This disposed of the 2d and 3d papers; and the 1st was set aside by the judgment of the superior court of the city of New York, in a suit brought by the brothers of the testator against the brothers of the widow. In a similar suit in the supreme court, the large investments made by Mrs. Parish in her own name, from the receipts of her husband’s estate, during his incapacity, were declared to be invalid, and were ordered to be surrendered to his executors.
Thus the will of the testator was sustained, and the three papers made subsequent to his apoplexy, paralysis and epilepsy, were set aside.