Harvy v. Chouteau

| Mo. | Mar 15, 1851

Ryland, J.,

delivered the opinion of the court.

From the record, in this case, it appears that, Nicholas Noel Des-trehan died at his domicil in the parish of Jefferson in the State of Louisiana about the 16th day of June, 1848, having made his olographic will in duplicate, having also made his codicil.

The olographic will is thus called because it is written, entirely in the handwriting of the testator — this will was without any subscribing witness — one of the duplicates was inclosed, carefully enveloped, sealed and marked as the olographic will of said Destrehan, and forwarded by him to Mr. Henry Choteau of St. Louis. The other was carefully marked and sealed and deposited with Mr. Gaston Villars, the neighbor of the testator; the codicil was a notarial act, taken down in writing by-Lawrence Richard Kenny, a notary public of the parish of Jefferson, in which the testator lived and died in the State of Louisiana.

This codicil was written down from the words dictated to the said Kenny as notary, by the said testator; the said Kenny writing as the words fell from the testator; it was signed by the testator and witnessed by Fergus Gardere, A. Villars, G. Villars, and L. R. Kenny, notary-public — four witnesses. It begins by stating “I have made an olo-graphic will, wl'icli is made in duplicate, one of which has been placed in the hands of Henry Chouteau, of St. Louis, in the State of Missouri* and the other deposited in the hands of Mrs. Gaston Villars, of the parish of Jt fferson, one of my executors appointed by said will; I r.ow de-alare it to be iny.last. will, that the donation I have made to my son, Peter Nicholas Destrehan, of the share of my estate beyond Iris ieigiti-mate share, shall in case my said son should come within the limits of the State of Louisiana before his attaining the age of twenty-one years, I then give and desire in such case the donation or extra share of my estate devised to him, by my said olographic will, to the State of Louisiana, it being my wish and desire, that my said son, Peter Nicholas Destrehan, shall not come within the limits cf Louisiana until he shall attain the age of twenty-one years, under the penalty of forfeiting in favor of the State of Louisiana, as aforesaid, that portion of my estate devised to him as aforesaid.5’ Thus the said Nicholas Noel Destre-han dictated the aforesaid codicil to this said olographic will, to me, notary, in the presence of Fergus Gjtrdere, Adolphe Villars and Gaston Villars, of this parish, of lawful age, witnesses expressly called by me, notary, to act as such; and having read the said codicil to the said testator in the presence of the said witnesses and in an audible and intelligible voice, the said testator declared, that he understood the same perfectly well, and that he persisted therein — in witness whereof the said Destrehan has signed these presents in the presence of said witnesses and me notary, at his residence, in this parish the day and year aforesaid, and the said witnesses and the notary have signed the same, done without interruption or turning aside to other acts, parish of i Jefferson, Louisiana, the day and year aforesaid, original signed — Dester-han, Maincre, Fergus Gardere, Adolphe Villars, G. Villars, L. R. Kenny, notary public.

This will and codicil were admitted to probate in the State of Louisiana. By the laws of the State of Louisiana the original codicil being a notorial act, becomes deposited in the notary’s office and forms a part of his notorial records, and as such, the notar}' is bound to keep the original, and is not by law permitted to give it to any one. A copy, therefore, can only he obtained.

Upon learning the death of Mr. Destrehan, Henry Chouteau, produced the package, inclosing' the will, with the original memorandum in writing of the testator, with the seals unbroken before the probate court and which was opened in the presence of the said probate court. A duly certified copy of the codicil, together with the olographic will was produced in the probate court of St. Louis county; a dedimus po~ testatum was issued accompanied by a copy of the codicil to the State of Louisiana, and the same was proved by the witnesses who signed the original codicil.

The probate court rejected the olographic will and codicil, and would not suffer them to be probated. Henry Choteau, the executor, appealed to the circuit court, and that court decided that said codicil and olographic will were duly proved and that both ought to b® admitted to» probate as the last will and testament of Nicholas Noel Destrehan; to< this decision of the circuit court Harvey and wife excepted, and moved the court to set aside the judgment and grant them a re-hearing, which motion was overruled and Harvey and wife bring, the case here by appeal.

From the above statement it will be seen, that the important questions are, will the proof of this codicil establish the will? Can an unattested will be set up and republished by a codicil not physically annexed to the will, but which is attested by a sufficient number of witnesses required by law to prove a will?

These are questions of weighty import and have demanded our patient consideration.

In the case of Brownell and wife vs. DeWolf, 3 Mason, 494; Mr. Justice Story, speaking of the effects of a codicil upon a previous will, says: “Upon this question, after the decisions which have been made, whatever may have been my original doubts if the question were new, I feel myself bound to declare that the subsequent codicil does not amount to a republication of the original will, so as to pass, the real estate, purchased in the intermediate period.” It was expressly adjudged in the case of Acherly vs. Vernon, (Con. Rep., 381) more than a een-tury ago, by Lord Mansfield, that the signing and publishing of a codicil by the testator, in the presence of three witnesses, was a re-publicatiois of his will, and both together made but one will; and his decree was affirmed by the House of Lords.”

“This decision appears to have been contrary to some previous authorities, but it was expressly recognized and acted upon by the master of the Rolls in the case of Potter vs. Potter,” (1 Vez. 438.)

In Barnes vs. Crowe, (1 Vez. p. 486) the Lords Commissioners upon examination of all the cases considered, Acherly vs. Vernon, a decisive authority, and in Piggott vs. Waller (7 Vez., 98) Sir William Grant, after the fullest deliberation, held the doctrine, whatever might have been its original difficulty, now incontrovertible.”

Justice Washington in the case of lessee of Musser vs. l^vsery, says, a codicil amounts to a re-publicafion of the original will, and there can be no doubt, but that the register having received probate of the will, may afterwards receive probate of the codicil—3 Wash. C. C. Rep. 482. In the case of Movers vs. White, 6 John. Chan. Rep., 375, the codicil was endorsed and written on the back of the will. Chancellor Kent says, “I see no reason why the codicil, executed with all the solemnities required by the statute, was not a re-publication of the will, so as to give effect to the devise to the parties to this suit, equally as if they had been expressly mentioned in the codicil.”

In the case of Van Cortland vs. Kip, 1 Hill 598, Justice Cowin said, “it seems to me, that at this day it would be a violation of all reliable authority to deny, that a codicil duly attested to pass real estate, would, per se, whether it relate to real or personal property, operate as a republication of a devise, unless the,testator declare, that he does not intend the codicil to have that effect; he states, that the authority of the Attorney General vs. Downing, (Arnbeler, 571) was expressly repudiated in Barnes vs. Crowe, on a consideration of all the previous cases-To doubt upon the question at this day, would be to violate all rules for determining the force of judicial authorities.” In the case of Goorich vs. Meredith, Lord Ellenborough, C. J., said, “as to the question, ‘what the effect of a codicil is,’ that has been settled in a series of cases, beginning with Acherly vs. Vernon down to Barnes vs. Crowe, and lastly, in a more recent case of Piggot vs. Moller.

“The effect of all these cases is to give an operation to the codicil per se and independently of any intention so as to bring down the will to the date of the codicil — making the will speak of that date, unless indeed, a contrary intention be shown, in which case, it will repel that effect. The codicil draws the will down to its own date, in the very terms of the will, and makes it operate as if it had been then executed in those terms.”

In these cases the codicil was attached to the will, or wrapped up in the same envelope. In the case before us the codicil was made at a subsequent day, the olographic will had been written in duplicate, months before, and one of the duplicates was in St. Louis, in a different State, the other at Gaston Villar’s residence; neither was present at the making of the codicil, nor did the witnesses to the codicil see the olo-graphic will at the time they attested the codicil — the authorities, therefore, are said not to bear upon the' case now before us.

Let us now examine this matter: if the codicil refers to the olo-graphic will by its terms, by mentioning the manner it was made, ( viz.) in duplicate — by naming the depositories of these duplicates — Henry Chouteau of St. Louis, and Garton Villars of the Parish in which the testator was an inhabitant, does not such evidence bear as strong evidence, showing which will was meant, which will was in the mind of the testator, as if the codicil had been annexed and pinned to the very sheet of paper on which the will had been written?

In the case of Barnes vs. Cowe aboye cited, Lord, commissioner, Eyre, said “the testator had inseparably annexed codicil to the will, not by a wafer or wrapper, but by internal annexation.” I cannot see, why the reference, to the olographic will in the case before us, mentioned in the codicil, is not as strong and as satisfactory as physical annexation.

In the case of Beal vs. Cunningham 3. B. Monroe Rep. 390, the court of appeals of Kentucky, decided, “that a codicil is a part of the will to which it is attached, or refers, and must be taken and construed together as one will — “one testament.”

Here then is a very respectable authority, that “reference” is sufficient. I confess I see no good reason why it should not be. In cases like the present, the question of identity may sometimes arise. “Is this the will referred to?” But this can .always be settled by the facts in proof.

I am therefore free to declare, that I can see no legitimate reason, why a properly attested codicil may not draw down to it, a previous made though unattested will, to which the codicil refers, upon its face, though not annexed by wafers or any other mode physically.

In the case before us the codicil states,, that the testator had made his olographic will, in duplicate, had send one to Henry Chouteau of Saint Louis, the other to Garton Villars, whom he had made his executors.

From the testimony before the Probate Court, there was no doubt that the one sent to Chouteau was then present in court. The letter of the testator accompanying it, in his own hand writing in French was produced in court; the sealed package in which the olographic will was enveloped with the seals unbroken, was produced and broken open in court, the memorandum on the package in the hand writing of Destre-han, stating the contents of the envelope, all satisfy me unmistakably, that the one produced was the one alluded to and referred to in the codicil.

If the codicil had been attached by a wafer, to the original olographic copy sent to Chouteau, 1 presume, that there would have been no room for doubt. A list of decisions for more than one hundred and thirty years sustains this point. What is the difference between this wafer annexation of a codicil, which may not mention the previous will, otherwise than by reciting that “this is my codicil to my last will,” and the case before us, where the fact of making his olographic will in duplicate, and the statement of the fact, to whom he had sent, the duplicates appear on the face of the codicil ? In this case, the codicil by the manner it refers to the original olographic will, affords a.specimen of internal annexation morally as strong if not stronger, than the physical annexation of wafer, wrapper and tape.

The counsel for the appellant says, that the law makes as good ami oftentimes a better will, than the testators do, and that there is no great-harm, or violence done, when the courts confirm the making of wills strictly within the provisions of the law. I agree with him in this opinion: but yet I cannot under my convictions of the law governing this case, do otherwise than conclude that great injustice might be done to individuals were the courts to be guided by such distinctions as direct them to avoid the shadow, notwithstanding they may overthrow sub-tantial realities in arriving at their conclusions.

The counsel objected to the manner in which the codicil was proved in this case. A copy only was sent, and the witnesses prove it to be a copy; they prove the original, of which the copy was sent; I cannot, tell, how else codicil can be proved in this case. The original is on file as a record in the Notary’s office. There it must remain. No person can obtain it, a copy can be bad. The Notary Public, in whose office the original remains as a record, is a witness to the original. He and the witnesses thereto prove the copy in this case.

If they swear it is a copy without having the original before them, ills a very loose manner of swearing, but yet it may be all right, for they may have compared it word for word with the original, sometime previously. The fact of its being a copy may be known to them without a doubt, and they prove the copy in this case.

However, this is but a minor point; and as the main question must be determined against the appellants, we will not dwell on this. It would do no good to either party to send it back for further proof in this particular.

The judgment of the circuit courtis affirmed.