Johnson v. Johnson , 279 P.2d 928 ( 1954 )

PER CURIAM.

This is an appeal from a judgment of the District Court of Oklahoma County affirming the County Court of Oklahoma in denying probate to an instrument purporting to be the last will and testament of Dexter G. Johnson, who was sometimes known as D. G. Johnson.

The instrument in question was on a single sheet of paper and contained three typewritten paragraphs,, started out with the words, “I, D. G. Johnson also known as Dexter G: Johnson, of Oklahoma City, Oklahoma County, State of Oklahoma do hereby make, publish and declare this to be my last Will and Testament * * * ” and made numerous bequests and devises and concluded with recommending the employment of a certain attorney to probate the will. This typewritten portion was not dated nor did the testator sign his name at the conclusion thereof nor was it attested by two witnesses. At the end of the typewritten portion, at the bottom of the sheet of paper, appears the following, admitted to be in the handwriting of the deceased:

“To my brother James I give ten dollars only. This will shall be complete unless hereafter altered, changed or rewritten.

“Witness my hand this April 6, 1947. Easter Sunday, 2:30 P.M.

“D. G. Johnson

“Dexter G. Johnson.”

On trial de novo in the District Court the proponents of this purported will, plaintiffs in error here, introduced evidence over objections (which objections were never ruled on by the court) showing that Dexter G., or D. G. Johnson for many years was a practicing attorney in Oklahoma City; that during his practice he prepared many wills, all in proper form, for various clients; that in October, 1946, deceased told Jack G. Wiggins, his insurance counselor, that he had a will but it was out of date and needed changing; that in March, 1947, deceased told this insurance counselor that he was working on his will, making changes, and expected to complete it right away and told Mr. Wiggins in general the disposition he intended to make of his property; that in the latter part of 1946 Lowell M. Wickham, deceased’s rental agent, was shown the instrument here in question at which time it had only the typewritten portions on it; that at that time deceased told him that was his will and he wanted Wickham to witness it, but he and deceased started discussing other business and neglected to do it at that time; that when Wickham left the paper was lying on deceased’s desk; that some months later Wickham asked deceased about witnessing the will and deceased replied he had changed his will by codicil and did not need Wickham to sign it as witness; an offer by statement of counsel was made to show the intention of the testator in leaving his property to the persons he named as beneficiaries which was rejected by the court and is not helpful in deciding the questions raised here.

The above is a summary of all the tesr timony that appears in the record. None of the testimony presented to the County Court appears in the record; defendant below, contestant of the will and defendant in error here, offered no testimony.

Is this instrument one complete, integrated writing, partly typed and partly handwritten; or is it an unexecuted non-holographic will to which is appended a valid holographic codicil? If it be the former it cannot be admitted to probate because it was not signed in the presence of two subscribing witnesses as required by law.

Defendant in error urges that the instrument shows on its face that it is but one instrument and that it cannot be divided into two parts, one, the typewritten part to be called a will and the other, the handwritten part, to be called a codicil. In support of his contention he says that the typewritten portion standing alone is not a will because, though admittedly testamentary in character, it is not dated, signed, nor witnessed; that it takes the handwritten portion to complete the instrument; that by definition to have a codicil there must first be a will.

There is no question in this case that the typewritten instrument which was not signed, dated, nor attested was prepared by D. G. Johnson and that it is testamentary in character, or that he intended same as his will or that it effectively makes complete disposition of his estate. A will may be so defective, as here, that it is not entitled to probate but if testamentary in character it is a will, nonetheless.

“A man’s will is the instrument by which he expresses his intention as to the disposition of his property at his death.” — Loveren v. Eaton, 80 N.H. 62, 113 A. 206.

“If maker intended document to be effective at death, it is a ‘will.’ ” — Knoll v. Hart, 308 Pa. 223, 162 A. 228.

Nor is there any question that the handwritten words were wholly in the handwriting of the testator.

The question next arises, do these words meet the requirements of a codicil? By definition a codicil is a supplement to, an addition to or qualification of, an existing will, made by the testator to alter, enlarge, or restrict the provisions of the will, to explain or republish it, or to revoke it, and it must be testamentary in character. In re Whittier’s Estate, 26 Wash.2d 833, 176 P.2d 281. A codicil need not be called a codicil, In re Carr’s Estate, 93 Cal.App.2d 750, 209 P.2d 956; In re Atkinson’s Estate, 110 Cal.App. 499, 294 P. 425. The intention to add a codicil is controlling. Allgeier v. Brown, 199 Ky. 672, 251 S.W. 851; Stewart v. Stewart, 177 Mass. 493, 59 N.E. 116; In re Whittier’s Estate, supra. The handwritten words are admittedly testamentary in character. It is clear that they make an addition to the provisions of the will theretofore existing. This codicil is on the same sheet of paper and the terms thereof, the circumstances surrounding it, as shown by the evidence indicate that the testator intended it as an addition to and republication of his will.

If it be a codicil, then, is it a'valid one? It is written, dated, and signed by the testator. It meets all the requirements of a valid holographic codicil. The fact that the codicil was written on the same piece of paper as the typewritten will will not invalidate the codicil. In re Atkinson’s Estate, supra.

It is admitted that a codicil republishes a previous will as modified by the codicil as of the date of the codicil. Can a valid, holographic codicil republish and validate a will which was theretofore inoperative because not dated, signed, or attested according to law?

The general principle of law is that a codicil validly executed operates as a republication of the will no matter what defects may have existed in the execution of the earlier document, that the instruments are incorporated as one, and that a proper execution of the codicil extends also to the will. Twenty-two states and England so hold. For citation of cases see Annotations 21 A.L.R.2d 823. That a properly executed codicil will give effect to a will which has never been signed has been specifically held in Kentucky, New Jersey, and England. See Beall v. Cunningham, 1843, 3 B.Mon. 390, 42 Ky. 390, in which it appeared that a paper wholly written by testator dated 1925 was denied probate, and thereafter there was offered for probate a typewritten will dated in 1827, which was unsigned and unattested, together with a codicil dated 1832 on the same sheet of paper which was signed and attested; the opinion holds that the properly executed codicil had the effect of giving operation to the whole as one will. See also Hurley v. Blankinship, 1950, 313 Ky. 49, 229 S.W.2d 963, 21 A.L.R.2d 817 in which a holographic will which was not signed was held validated by properly executed holographic codicils; Doe v. Evans, 1832, 1 Cromp. & M. 42, 129 Eng.Reprint 307, in which an unsigned typewritten will was held validated by a properly executed codicil on the same sheet of paper; see also McCurdy v. Neall, 1886, 42 N.J.Eq. 333, 7 A. 466 and Smith v. Runkle, 1916, 86 N.J.Eq. 257, 98 A. 1086, in both of which the signatures to the wills were defective because not placed on the will in the presence of witnesses but it was held that valid codicils thereafter executed gave operation to the entire will and codicils; Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26, in which an invalid typewritten will (due to only one witness) was held validated by a subsequent holographic codicil; In re Plumel’s Estate, 151 Cal. 77, 90 P. 192, an invalid holographic will because of printing thereon was held validated by a subsequent holographic codicil written on the back of the will.

The states of Arkansas, California, Illinois, Iowa, Louisiana, Missouri, Nebraska, New Hampshire, Ohio, Pennsylvania, Tennessee, Virginia and Wisconsin have each held that a will which was inoperative and not subject to probate because of imperfect attestation was republished and validated by the execution of a valid codicil thereto by the testator and each has announced the rule outlined above that codicil operates as the republication of the will no matter what defects may have existed in the execution of the original instrument.

The only exception is New York which modifies the general rule by holding that a properly executed codicil validates a will originally invalid for want of testamentary capacity, undue influence, or revocation but does not validate a will defectively executed because of improper attestation. It will be noted, however, that Justice Cardozo in Re Fowles, 1918, 222 N.Y. 222, 118 N.E. 611, Ann.Cas. 1918D, 834, stated that the rule was malleable and uncertain and he anticipated that New York would abandon its limitations on the rule.

In the case of Beall v. Cunningham, supra, the Kentucky court in discussing the New York rule that a revoked will could be validated by a codicil but an improperly executed one could not said :

“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 it 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 * * * the reason that would sustain the republication in the one case would equally sustain the publication of the testator, plainly implied from the execution of the codicil, referring to the paper as his will.”

We therefore hold that the valid holographic codicil incorporated the prior will by reference and republished and validated the prior will as of the date of the codicil, thus giving effect to. the intention of the testator.

Reversed with directions to enter the will for probate.

JOHNSON, V. C. J., and WELCH, CORN, ARNOLD and BLACKBIRD, JJ., concur. HALLEY, C. J., and WILLIAMS and DAVISON, JJ., dissent.