Gooch v. Gooch , 134 Va. 21 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The assignments of error do not challenge the correctness of the decree under review in its holding that the printed portions of the form on which the writing was found, which is held to be a codic 1 to the original will, may be disregarded, leaving that portion of the writing which is wholly in the handwriting of the testator and signed by him — (namely: “My will is made in favor of my wife, Loulie M. Gooch, duly signed and filed. Witnessed by E. W. Poindexter and A. C. Hop-wood, attorneys in Roanoke, Va. G. G. Gooch, Jr.”) —complete and entire in itself, and that this holograph writing was a testamentary act, so that the writing was properly admitted to probate as a holograph codicil to the original will. And the following authorities, cited in the petition and in the brief of counsel for appellees, fully sustain the correctness of these conclusions: 28 R. C. L. sec. 155, p. 197; 1 Redfield on Wills (4th ed.), p. 6; Pollock v. Glassell, 2 Gratt. (43 Va.) 439; Perkins v. Jones, 84 Va. 358, 4 S. E. 833, 10 Am. St. Rep. 863; bearing upon the testamentary character of the writing; 40 Cy. 1130; 1 Alexander’s Com. on Wills, 650; 28R. C. L., sec. 116, pp. 161-2; Note in 20 Ann. Cas. 370; Baker v. Brown, 83 Miss. 793, 36 So. 539, 1 Ann. Cas. 371; touching the subject of the immateriality of the printed portions of the writing. See also In re Wolcott, 54 Utah 165, 180 Pac. 169, 4 A. L. R. 727; In re Robertson's Succession, 49 La. Ann. 868, 21 So. 586, 62 Am. St. Rep. 672; In re Plumel, 151 Cal. 77, 90 Pac. 192, 121 Am. St. Rep. 100; and In re Noyes, 40 Mont. 190, 105 Pac. 1017, 26 L. R. A. (N. S.) 1145, 20 Ann. Cas. 366; on the subject of when a paper partly printed and partly written cannot be held to be holographic.

The action of the court, in admitting the attestation clause to prob.ate, was erroneous, as there is no portion of this altogether in the handwriting of the testator which is complete and entire in itself. But this is not assigned as error, and was,, indeed, harmless error.

Upon the subject of the finality of the testamentary intention expressed in the codicil, Perkins v. Jones, just cited, is in point. It is true that that case was decided by a divided court of three judges, and that the dissenting opinion of Judge Lewis is an able one. But the instant ease is much stronger than that to support the holding that the codicil evidences the final testamentary intention of the testator. In that case there was no evidence aliunde explaining, consistently with the finality of the testamentary intention, the failure to use the attestation clause found at the foot of the writing, and the decision was based solely on the evidentiary effect to be given the signature under the statute of 'wills. Whereas in the instant case the failure to use the attestation clause is fully explained by the evidence touching the purpose of the execution and the delivery of the writing.

It should be also noted in passing, that it is settled, upon facts such as are involved in the instant ease, that on the birth of the children the original will became, and, during their minority, continued, inoperative (Woodv. Tredway, 111 Va. 526, 69 S. E. 445), unless and until it was revived after the birth of the children.

The following question, however, is presented for our decision by the assignments of error, namely:

1. Does it appear in evidence in this cause, on the face of the codicil, or otherwise, that the testator intended a republication of his original will at the time the codicil was executed, so as to bring the codicil within the statute, section 5234 of the Code above quoted, and thus make it operate to revive the original will after the birth of the children?

This question must be answered in the affirmative.

When the codicil is read in the light of the sole purpose for which the codicil was executed, shown in evidence, namely, in order to express the testamentary intention of the testator existing at the time of such execution, what is said in the codicil carries with it the plain and, indeed, irresistible inference or implication that it has the meaning that the original will expressed the testamentary intention of the testator existing at the time the codicil was executed, and that that intention extended to the provisions of the original will as a whole, and not merely to a part of it. It is thus “shown” (to use the language of the statute just referred to), by the evidence in the cause, that the codicil in question intended to revive the whole of the original will, so that the codicil, under such statute, operated to revive the whole of such will after it had been, under section 5242 of the Code, also above quoted, revoked, conditionally or contingently, by the birth of said children.

It is admitted in the brief for appellees that such would have been the effect of the codicil prior to the statute aforesaid (section 5234), on the subject of the revival of wills which have been in any manner revoked. It is admitted that the holding in Corr v. Porter, 33 Gratt. (74 Va.) 278, and Hatcher v. Hatcher, 80 Va. 169, (which were cases which involved codicils executed prior to such statute), is correct as applicable to the wills involved therein. That holding as expressed in the opinion in Corr v. Porter, 33 Gratt. (74 Va.) at p. 282 is as follows:

“There is some conflict among the authorities upon the proposition, whether a codicil, proprio vigore, independently of an expressed or implied intention, operates as a republication, or whether it must appear, on the face of the codicil or otherwise, it was so intended. It has been settled * * by a long train of decisions that no particular words are necessary to constitute a republication. All that is necessary is, that it shall appear that the testator considered the paper” (the original bill) “as his will at the time he made the codicil. Anything is sufficient which indicates a continuance of the testamentary intent with respect to the disposition of the testator’s property. * * * Where the testator in the codicil refers to the will and gives sufficient demonstration that when making the codicil he considered the will as his will, there a republication may be implied.” (Italics supplied).

The same holding, in substance, as expressed in the opinion in Hatcher v. Hatcher, is as follows: “The codicil, it is admitted, operates as a republication of the will, and the effect of the republication is to bring down the will to the date of the codicil, so that both instruments are to be considered as speaking at the same date and taking effect at the same time.”

It is contended, however, that, because of the statute last referred to, there is a difference between the republieation of a will Vhich has never been revoked and the revival or republieation of a will which has been in any manner revoked; and the ease of Francis v. Marsh, 54 W. Va. 545, 555, 46 S. E. 578, 1 Ann. Cas. 665, is cited in support of that position. That case involved the West Virginia statute, which is the same as said section 5234, under which a will once in any manner revoked can be revived by codicil “only to the extent to which an intention to revive the same is shown.” And in that case Corr v. Porter and Hatcher v. Hatcher are reviewed and held to have involved the republieation of an existing will, not the revival of a revoked will, and to have been governed by the common law, as the codicils therein involved were executed prior to 1850, when the Code of 1849 of Virginia went into effect — in which Code this statute seems first to have appeared — and it is said, in Francis v. Marsh, that, under the statute just mentioned, “The difference between republieation of an existing will, and revival or republieation of a revoked will, by a codicil is that in the latter case the codicil must show an intent to revive, while in the former it need not.” But, as appears from an examination of the able opinion in that case, which contains an instructive review of the authorities, it holds, as correctly set out in the head note, that any language in the codicil “from which such intent may reasonably be inferred, such as a reference to the will by date, * * * * in the absence of contradictory matter found on the face of the codicil or in the surrounding circumstances, is sufficient.”

In Francis v. Marsh the original will involved was revoked by marriage; (of which result, we may remark, parenthetically, the testator was shown to have been unaware). The testator subsequently executed the following codicil: “I, John Marsh, do make this a codicil to my will made on the 6th day of August, 1895” (that being hia original will), “and do nominate and appoint J. D. Watson as one of the executors of my will and do hereby revoke the appointment of J. R. Jewell to said will.” And the court held that the effect of the codicil, under the statute, was to revive the whole will. That holding is-in entire-accord with the views we have expressed above, since the intention to revive the whole of the original will referred to is plainly implied by what is said in the codicil; only in the case before us there is parol evidence by which the intent in question is “shown” impliedly, even more clearly.

It was the settled rule at common-'aw that if it appeared on the face of the codicil or otherwise, whether impliedly or expressly, that the codicil was intended to revive the original will, it had that effect. The conflict in the authorities, referred to in Corr v. Porter, supra (33 Gratt. [74 Va.] at p. 282), was not on that subject, but whether, where such intention did not appear on the face of the codicil or otherwise, either expressly or impliedly, “a codicil, proprio vigore, * * * operates as a republication * * .” We think that the statute merely adopted the settled rule at common law; and, by the concluding provision, to the effect that a revoked will shall be revived by the common law method, “only to the extent to which an intention to revive the same is shown,” we think the statute merely meant to settle the aforesaid conflict in the authorities, by providing a statutory rule that a codicil shall not operate, proprio vigore, to revive a revoked will where the intention so to do does not appear, on the face of the will, or otherwise, either expressly or impliedly, but shall revive such, a will “only to the extent to which .an intention to revive the same is shown,” either impliedly or expressly, by the codicil, when read in the light of all the evidence admissible on the subject.

As to what evidence is admissible on such a subject, this is said in Pollock v. Glassell, supra (2 Gratt. [43 Va.] at p. 458): “Neither the delivery of a deed, nor the publication of a will, is a part of the instrument; they both lie in parol, and yet they are legitimate and important matters in the proof of its execution * * ;” and such proof is held to be admissible in evidence.

It is not necessary to a revival of a revoked will, by a codicil thereto, that the codicil should show that the testator knew that his will had been revoked; the essential thing to be shown by the codicil is that, as expressed therein or to be implied therefrom, the codicil conveys the meaning that the will still expresses the testamentary intention of the testator as of the time of the execution of the codicil and to what extent the will still expresses that intention, whether to the extent of the whole will, and if not, to what extent. Francis v. Marsh, supra (54 W. Va. 545, 46 S. E. 573, 1 Ann. Cas. 665; Note 1917D, Ann. Cas. 1176).

The fact that the testator did not intend the language used in the codicil to operate as a codicil is immaterial. As said in Pollock v. Glassell, supra (2 Gratt. [43 Va.] at p. 455-6): “There is nothing that requires less formality than, the body of a will or testament. If it be duly signed, attested and published, it may assume almost any form, provided it be intended by the party to take effect after his death. * . * Nor is it necessary that the testator should intend to perform or be aware that he has performed a testamentary act. * * * It is, therefore, well settled that the form of a paper does not affect its title to probate, provided it be the intention of the deceased that it should operate after his death. It is contended, however, that this intent must appear upon the face of the instrument and can never be proved by parol. This would perhaps be true if it were a naked question of intent; but it is something more. The true question is whether the deceased has done a testamentary act; and that involves * * * *, not merely the terms, but also the perfect and appropriate execution of the instrument; and the latter is the proper subject of parol evidence.”

It is also argued on behalf of the appellants that a will once revoked by marriage, or by the birth of a child or children, can be revived only by a valid re-execution; that mere subsequent recognition by a codicil will not revive the revoked will; and the following authorities are cited to sustain such position, namely: 28 R. C. L. sec. 152, p. 194; Stewart v. Mulholland, 88 Ky. 36, 10 S. W. 125, 21 Am. St. Rep. 320; and Bohanon v. Walcot, 1 How. (Miss.) 336, 29 Am. Dec. 631.

In the first place, this position ignores the provision of the statute that a revoked will may be revived by a codicil, as well as by a re-execution of the revoked will. Further:

The statement in the text of 28 R. C. L. just mentioned, which is quoted in the petition for the appeal, is that, “A will once revoked by marriage can only be revived by a valid re-execution. Mere subsequent recognition will not revive it,” and the text refers to Stewart v. Mulholland, also just mentioned, to support the text. The head note of the latter case sustains this text, and, seemingly, so does a statement in one part of the opinion. But when the whole of the opinion on this subject is read it is clear that all it means to say is merely that the verbal declarations of the testatrix, made afterher marriage, recognizing a will made prior to and revoked by her marriage, did not constitute a repu.blication of such will under the Kentucky statute on the subject of the revival of revoked wills (which is the same as the aforesaid Virginia statute on the subject). The reason for such a holding is obvious. The case last mentioned, as cited for appellants, of Bohanon v. Walcot, concerns revocation only, and does not involve the subject of revival or republication of wills.

The decree under review will be affirmed.

Affirmed.