234 Mass. 273 | Mass. | 1920
This case comes before us on report as to the allowance of the will and codicil of Eustace H. Stearns, deceased, late of Leicester. He left one instrument, in form a will, dated August 8,1906, whereby all his estate was given to Mary F. Wells, who was named as executrix. He left another instrument dated October 24, 1912, termed the codicil, which was in this form: “I, Eustace H. Stearns of Des Moines in the County of- Polk and State of Iowa being of sound mind and memory do make this Codicil to my last Will and Testament, made and executed about October 1st, 1906. I hereby give, devise and bequeath all my Real Estate at 914 West 5th St. and all personal property situated in the house at 914 West 5th St. Des Moines la., consisting of household goods and all pictures to Mrs. Mary L. Simpson of Des Moines, Iowa. I nominate and appoint Mrs. Mary L. Simpson Sole Executor' of this my Codicil to a previous will and direct that she be not required to give bond.” Both the will and codicil were holographic. Although the reference in the codicil ip the date of the will is not accurate, it has been found as a fact that that reference was in truth to the will dated August 8, 1906.
It has been found by a jury, to whom these issues alone were tried in the Superior Court, that the instrument of August 8, 1906, was procured to be made through the fraud or undue influence of Mary F. Wells, and that the instrument dated October 24, 1912, was not procured to be made by the fraud or undue influence of Mary L. Simpson. After the return of these answers into the Supreme Judicial Court, the proponent of the will moved that the two instruments offered for probate be proved and allowed as the testament of the deceased, while the contestants objected to the allowance of the will and contended that as matter of law it should be disallowed.
It is laid down in numerous cases as a general rule that a codicil referring to a will and executed with all the formalities required
’ Applying this rule of construction to the case at bar, it is plain that the testator by the execution of the codicil intended his will to be and to become operative as a part of the expression of his testamentary wishes. He refers to it as his "last Will and Testament.” He attempts to give its date with approximate accuracy. He refers to the instrument last signed as “this my Codicil to a previous will.” It would be vain to argue that this did not disclose a deliberate purpose to confirm the provisions of that earlier instrument as a part of his testamentary design and to declare the two instruments together, the one as modified by the other, as the complete expression of his wishes as to the disposition of his property.
The confirmation of the original will by the codicil becomes operative as of the date of the codicil. As was said in the old case of Goodtitle v. Meredith, 2 M. & S. 5, 14, "The effect of all . . . [[the] . . . decisions is to give an operation to the codicil per se ... so as to bring down the will to the date of the codicil, making the will speak as of that date, unless indeed a contrary intention be shewn ...” A will as modified by a codicil is thereafter to be taken and construed as a will of the date of the codicil. Pratt v. Rice, 7 Cush. 209, 212.
The result is that, the answer of the jury having established the codicil as the free and untrammelled expression of the testamentary' purpose of the deceased, and the will having been affirmed and republished by the codicil, both instruments should be admitted to probate. The proponent of the will has not waived his right to have this done. The motion for the framing of issues to the jury was presented by the contestants and not by the proponent. Therefore, he is not by their form or their scope prevented now from seeking the relief to which the answers to the questions as framed entitle him.
Let the entry be
Decree of Probate Court affirmed.