This case, which concerns itself with the novel and knotty problem of the probate of a codicil, independent of a will, is before this court on an order to show cause why the codicil should not be admitted to probate. The factual background which gives rise to the present controversy is relatively simple and undisputed: The decedent, Hyman Sapery, a domiciliary of the State of New Jersey, died on September 22, 1957. On August 23, 1957 the decedent, while visiting in Canada, executed a codicil to his last will and testament which complied, in all respects, with the formalities required of a testamentary instrument under N.J.S. 3 A:3-2. This codicil reads as follows:
"I, H. SAPERY, presently staying at the Royal York Hotel, Toronto, Canada, being of sound and disposing mind, memory and understanding, do hereby make, publish and declare this to be a Codicil to my Last Will and Testament heretofore made, signed, sealed, published, declared and executed by me.
I nominate, constitute and appoint my cousin Dr. Maurice Cohen, executor of my last will and testament, and I direct that no bond or other security be required of him in any jurisdiction in which my Will may be probated, or my estate may come in question.
I hereby revoke, cancel and annul the appointment of any other person or corporation as executor of my Will.
I hereby amend and modify my aforesaid Last Will and Testament in accordance with the provisions of this Codicil, and, as hereby and herein modified, amended and extended, I do hereby confirm, ratify, redeclare and republish my aforesaid last will and testament."
The executor selected, Dr. Maurice Cohen, was the decedent's cousin, and at the time of the decedent's death had a power of attorney over the decedent's affairs.
A caveat against the probate of a will was filed on October 17, 1957, and the complaint for the probate of the above codicil was filed on January 30, 1958. Although the decedent had stated on a number of occasions that he had executed a will, diligent and thorough searching had failed to reveal its existence.
The precise issue presented by the case, sub judice , of whether or not a codicil, which solely purports to effect a change in the naming of an executor, can, in the absence of the will sought to be amended, be admitted to probate, has not been the subject of judicial decision in this jurisdiction. This problem has, however, been ...