Pepper's Estate ( 1892 )

Opinion by

Me. Chief Justice Paxson,

This was an appeal from the order of the court below, admitting to probate a codicil to the will of the late Charles Rock-land Pepper. The testator died in Paris, France, on March 7, 1890. In the fall of that year, a French woman, named Sybilla Erb, the appellee, presented to the register of wills of Philadelphia certain papers, purporting to be a probate of the will of said Charles Rockland Pepper, by the authorities of Paris, and at the same time presented her own petition to said register, praying that ancillary letters of administration might be issued to herself here. This petition was accompanied by a codicil to said will, executed by the said Pepper while in this country, dated June 9,1887. The alleged will bears date May 16,1887. The codicil is as follows:

“ Philadelphia, June 9,1887.

“ I, Charles R. Pepper, do make and declare this a codicil to my will made in Paris, May , 1887, and I do hereby nominate and appoint my nnole, George S. Pepper, executor of said will, with full power and authority to do all things necessary and expedient in the premises.

“ Witnesses : Charles Rockland Pepper, [seal.]

“ Frederick Stanger.

“ John S. Fromme.”

By the alleged will the testator gave nearly the whole of his estate to Sybilla Erb, the appellee. It was conceded that the relations between them were meretricious. The admission of the will and codicil to probate was resisted by the heirs and next of kin of the testator, who reside here, where most of his real estate is situate. The appellants claimed that Philadelphia was the place of principal administration, and not of merely ancillary administration, as the legal domicile of the testator was within this commonwealth; that the will was not valid under the laws of Pennsylvania, and that, in view of the meretricious relations existing between the parties, the will, in the absence of proof, was prima facie invalid as presuming undue influence. It was further contended that the alleged will was not signed at the end thereof, as required by the statute of this state. None of these questions were determined by the register, as the appellee, by her petition, requested that officer to certify to the orphans’ court, under the acts of assembly, that a difficult and disputable fact had arisen, and that the proceedings should be certified by him to that court. They were so certified as to the will, and, upon the application of the appellee, the orphans’ court appointed an examiner to take testimony. While the examiner was engaged in taking testimony, the appellee filed her petition in said court, demanding that the codicil to the will should of itself, and apart from the will of which it formed a part, be admitted to immediate probate, or, in the alternative, that it should be delivered to the appellee for the purpose of being probated in France. The respondents filed their answers, denying the right of the petitioner thus to split the will into different portions, and obtain an immediate probate of one portion while proceedings were pending on the other, and main portion thereof, at her own request. The appellee filed her replications to these answers. The court below decided the matter upon the petition and answers, and admitted the codicil to probate, pending the contention over the will itself.

George S. Pepper, tlie executor named in the codicil, was deceased at the time it was admitted to probate. Under such circumstances, it is difficult to see the administrative advantage of probating the codicil. Letters testamentary could not issue to a dead man, and letters ■ of administration cum testamento annexo would be a novelty without a will to annex. The codicil made no disposition of property. Standing alone, therefore, it could be of no use to any one. That it may have a most important bearing upon the future disposition of Mr. Pepper’s estate, is a proposition that was doubtless fully appreciated by the astute counsel engaged in this contention, and is doubtless the cause of the fierce battle that has been waged over it.

The codicil was executed in strict compliance with the law of this state. It is attested by two subscribing witnesses. If, therefore, it is part of the will, as I shall endeavor to show, it is the last portion, and, being signed by the testator at the end thereof, no objection could well be taken to it as a Pennsylvania will, because not properly executed. Moreover, as it was written by his uncle, and executed in this country, with the ocean between the testator and the appellee, it may have an important bearing upon the question of undue influence, should that question be formally and seriously raised hereafter. It is also to be noted that the codicil is a republication of a will made in Paris in May, 1887. If the will offered to the register here is that will, it is not difficult to see how a great contention should arise over what is apparently a small matter.

That a will and codicil, though written on separate pieces of paper, and executed at different times, constitute but one instrument, and that the codicil is as much a part of the will as if written therein, is elementary law. It is an addition to a will, and, when properly executed, becomes a part of it. No authority is needed for so obvious a proposition. This brings us at once to the question, can a will be probated in sections ?

The appellee, to sustain this proposition, refers us to Hood’s Est., 21 Pa. 106. An examination of that case shows that no such question as the one we are now considering was either raised or decided. In Hood’s Estate it appeared that the testator was a native of this country, but removed to Cuba when under twenty years of age, and engaged in business there. He became a naturalized citizen of Cuba, and resided there all his life, making an occasional visit to the United States and Europe. He died while on a visit to Paris. He made a will in Cuba, which, however, does not appear to have been proved there. He also executed several codicils in Philadelphia, where he owned some property. The Philadelphia codicils were executed in conformity with the law of this state, and, after his death, the codicils, with a copy of the Cuba will attached, were probated as one instrument before the register of wills in Philadelphia. The whole contention was as to the domicile of the testator, and whether certain legacies given by said will, and payable out of the profits of his sugar plantations in Cuba, were subject to collateral inheritance tax by our laws.

Lord Howden’s Case, 43 L. J. P. & M. 26, is against the appellee on this subject. There the testator left two wills; one in the English form for his property in England, and one in the French form for his property in France, and had subsequently made two codicils to the English will. The English will referred to his French will, just as Mr. Pepper’s codicil refers to his Paris will. The court in England refused probate of the English will and codicils until the BTench documents were produced and proved with it as part thereof, with an intimation that authenticated copies of the document relating to the French wall might be supplied if the original could not be produced.

In re Harris, 2 Prob. & Div. 83 (L. R. 1870), the testator executed a will relating to property in Tasmania, and also, subsequently, another will relating to property in England. The English will was admitted to probate in England without reference being made to the Tasmania will. The latter was presented for probate in Tasmania, but was rejected on the ground that the document was only a part of the will of the deceased. That, of whatever number of executed documents the will consists, they cannot be separated, and must all be proved together, as together constituting one will. The court sustained this position, and revoked the probate previously granted of the English will alone, and held that probate should issue of both papers as “ together constituting the will of the deceased.” The same doctrine is laid down in In re Crawford, 15 Prob. Div. (L. R. 1890) 212, In re de la Saussaye, 3 Prob. & Div. (1873) 42, In re Honywood, 2 Prob. & Div. (1871) 251. Indeed, our attention has not been called to any well-considered case which sustains the contrary view.

It is possible that cases may arise where a codicil could be probated separate from the will. But it would be necessary to show that the testator intended it to operate separately from the will. In Redfield on Wills, chapter 7, § 25, paragraph 16, it is said: “ It is for the party applying for a probate of a codicil alone, to show that the deceased intended that it should operate separately from the will.” This quotation from Red-field is cited and approved in Youse v. Forman, 5 Bush, Ky. 347, where the object was to sustain a codicil apart from a revoked will, and the court said: “ The codicils to the main paper, all being in the margin thereof, must share the fate of the body of the will, for these all depend upon and are intimately interwoven with it, and neither being sufficiently independent to be upheld and executed as a testamentary paper. Nor does either indicate any intention of the testator to have either of them sustained independent of the main body of the will.” To the same effect is In re William T. Pinckney, 1 Tucker (N. Y. Sur.), 436.

There is nothing in the will and codicil of Charles Rock-land Pepper to show that he intended the codicil to act as an independent paper. Indeed, it is impossible that it should do so, for, standing alone, with the executor named therein in his grave, it is as harmless a paper as could be compressed in the same number of lines.

We are unable to see what the question of domicile has to do with the case as now presented, except in the single matter of the mode of proof of the will. It may become a question of importance, hereafter, in the distribution of the estate. The bulk of testator’s estate, much of it being realty, being situate in Pennsylvania, his will is entitled to be probated here. It is a muniment of title. Moreover, in order to carry the real estate, it must be executed in conformity to our law. This will and codicil, taken together, constitute a valid Pennsylvania will in form, and if it is the voluntary act of the testator, free from any improper influence, it is a good will here, when properly proved, whatever may be its status in France.

The learned court below was of opinion that the codicil could be separately probated, because the testator owned real estate in this jurisdiction. This would be an unanswerable argument if it were applied to the whole will, but as applied to the codicil as apart from the will, it has little force, because the codicil has no force. The decree as it stands must be reversed, and the case sent back in order that the question of the probate of the whole will may be passed upon by the proper tribunal.

The decree is reversed at the cost of the appellee.