42 Ky. 390 | Ky. Ct. App. | 1834
delivered tlie opinion of tlie Court.
Aeter the decision of this Court, reversing the order of the County Court of Washington, admitting to record, ag ^ }ast wjp anc¡. testament of Richard Beall, deceased, a paper bearing date in 1825, and wholly written by himself, (1 Ben. Monroe, 399,) Cunningham and wife and others, claiming as devisees, exhibited to the County Court, for probate, a paper bearing date in 1827, with a codicil thereto attached, bearing date in 1832, and moved the Court to admit the same to record, as a sub
“I, Richard Beall, do make the following codicil to my last will and testament. I devise to James Abel, two dollars, which is to be all of my estate that he is to get. All the property that I gave in the within will to Susan Beauchamp, I give to her and her heirs forever. I also give to said Susan Beauchamp and her heirs forever, all the part of my estate, that in the within will I gave to Lewis Abel, as witness my hand and seal this 31st of March, 1832. Richard Beall, (Seal.)
Attest,
S. T. Off nit,
Peter Brown,
Walter Hamilton.'"
The motion to record was opposed by Wm. Beall and Andrew Beall, who exhibited for record, a paper purporting to be the last will and testament of the decedent, bearing date in 1811, by which they were liberally provided for. On the hearing the County Court sustained and ordered to record, the aforesaid copies, as substantial copies of the last will and codicil of the decedent, and rejected the paper bearing date in 1811. From this order the case was taken to the Circuit Court, where the judgment of the County Court was affirmed, and an appeal taken from this affirmance to this Court.
Waiving the question whether we should not, under the proofs in this case, infer the due execution of the original paper, as the last will and testament of the decedent, the question arises whether, if it were never signed, attested, and published as such, the due execution, attestation, and publication of the codicil attached, is not a recognition and publication, or republication of the original paper as the last will of the decedent, with all the forms and solemnities required by our statute?
.1 codicil is a part of the will to which it is attached or refers, and both must be taken and construed together as one instrument. The codicil recognizes the existence of the original, changing if,in part and affirming it in those parts in which it is not altered; and hence it' has been well established that a codicil, executed with the solemnities required by the statute for passing lands, is a republication of a will, and both taken together make but one will, and that such re-publication will have the effect to pass lands acquired after the date of the will, but before the date of the codicil, or to revive and give force' and operation to a revoked will: (1 Roberts on Wills, 351; Powell on Devises, 610-620; Law Lib. 362; 1 Williams on Executors, 103; 3 Harrison’s Digest, 2186, title, Wills, and the cases referred to in these elementary treatises.)
The counsel for the appellants, conceding this as settled, yet contend, that though a codicil, duly executed, may operate as a republication of a revoked will, which has been duly executed as such, yet it cannot have the effect to bring into operation, as a will, a paper which has never been signed or executed as a will. We can see no difference in principle in the cases. ' If a codicil so attaches itself to, and .forms a part of a revoked will, as to revive' and give force and effect to ii as such, we cannot perceive -why it may-not be so attached to and ingrafted upon any .other paper which the testator may choose to treat as his will, as to give force and operation to it as his will. In either case it is a question of intention. If the testator, by the alteration of parts of his will, by a codicil, may
But this principle is not left to reason alone for its support. In the case of Carleton on the demise of Griffin vs Griffin, (Burrows’ Reports,) several awkwardly drawn devises and bequests were written and signed, but unattested, to which afterwards a memorandum was added on the same sheet of paper, which the testator subscribed and declared to be his will, and it was attested in his presence by the competent number of witnesses — this was held to be a good will of the devisor’s real and personal estate.
In the case of De Bath vs Fingle, (16 Ves. Jun. 167,) it is determined that the appointment of a guardian by an unattested will is made good by a codicil with three witnesses, referring to the will annexed, making some alterations as to legacies, and confirming it in other respects. It was also held that a devise of lands might be made .good by a codicil in a similar manner.
In the case of Doe demise of Williams vs Evans, 1 C. and M. 42, (3 Harrison’s Digest, 2186,) it was held that a codicil, duly executed and attested, referring to an unexecuted will on the same paper, gave effect to the will, and it thereby became a good will of lands.
In the case of Williamson vs Adam, (1 Ves. and B. 445,) it was held that an unattested fafer, referred to in
These authorities clearly affirm the position which we have assumed, and settle the controversy in favor of the will in question.
Judgment of the Circuit Court affirmed with costs.