In Re Smith Estate

145 Mich. App. 634 (1985) 378 N.W.2d 555

In re SMITH ESTATE

Docket No. 65803.

Michigan Court of Appeals.

Decided September 16, 1985.

Robert F. Mirque, for petitioner.

Meeks, Schultz & Archer (by Thomas H. Schultz), for First National Bank of Zeeland, personal representative of the estate of Raymond N. Smith.

Before: D.E. HOLBROOK, JR., P.J., and MacKENZIE and R.R. LAMB,^[*] JJ.

R.R. LAMB, J.

Petitioner, Helen Kehrwecker, appeals from the Ottawa County Probate Court's order denying admission of a will and a codicil of Raymond N. Smith. The probate court found that the presumption of revocation applied to the decedent's October 20, 1980, will and precluded its admission to probate. The court also held the presumption applicable to the November 22, 1980, codicil, finding that the codicil was wholly dependent on the prior will and had no significance in its own right. We hold that the codicil was a valid testamentary instrument and that the court erred in denying its admission to probate.

The decedent died on April 27, 1981, at the age of 81. He is survived by a son, Donald Smith, and a stepson, Donald Mochel. Petitioner and the decedent were close friends prior to decedent's death. She visited him frequently and took him to the doctor for treatment of his diabetes. When the decedent was discharged from a stay in the hospital in February, 1980, he moved into petitioner's home and resided there until his death. A close relationship developed and the two planned to marry on March 17, 1980, but decedent's illness prevented the marriage. During the course of their relationship, decedent purchased several items for petitioner and also gave her substantial real and personal property.

Decedent executed several wills during the latter years of his life. On March 10, 1980, he executed a new will, revoking a 1977 will, under which he bequeathed his entire estate to petitioner, with the exception of four lots of real estate. On October 20, 1980, a new will was executed under which petitioner was to receive one-half of the residual estate. On November 22, 1980, decedent executed a codicil which made a change in a minor bequest and expressly ratified the remaining provisions contained in the October 20, 1980, will.

A search of the decedent's personal effects following his death failed to produce the original October 20, 1980, will. A copy of the will was found, along with the original November 22, 1980, codicil. Petitioner's petition to admit both documents to probate was denied. She appeals as of right.

The probate court correctly recognized the common-law presumption of revocation which states, "that where a will cannot be found at the death of the testator upon proper search being made, and especially where the will is not traced out of the possession of the testator, it is to be presumed that it was destroyed by him animo revocando". In re Taylor's Estate, 323 Mich 101, 107; 34 NW2d 474 (1948). The burden is upon the proponent of the lost will to show facts or circumstances which overcome the presumption of revocation. In re Estate of Bernard Thomas, 274 Mich 10, 14; 263 NW 891 (1935). The presumption can be met by declarations of the testator, and whether or not the presumption is rebutted is a question of fact. Taylor, supra, p 108.

The probate court found that petitioner failed to overcome the presumption as to the October 20, 1980, will. We find that conclusion erroneous because, effective November 22, 1980, the codicil replaced the October 20, 1980, instrument and became the testator's only valid will.

The Revised probate Code defines a "will" to include a "codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will". MCL 700.12; MSA 27.5012. The code also provides for incorporation by reference, in MCL 700.130; MSA 27.5130, which states:"

"A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification."

In this case the codicil expressly incorporated by reference the dispositive provisions of the October 20, 1980, will. Under the statute, the codicil is a separate and independent testamentary instrument, the terms of which may be established by reference to the copy of the prior will. Since the original codicil is, by itself, a valid will under the statute, we hold that the probate court erred in applying the presumption of revocation to the original codicil.

We conclude that both documents must be admitted to probate: the codicil as a valid testamentary instrument, and the copy of the prior will for the purpose of proving the dispositive provisions of the codicil.

Reversed and remanded.

MacKENZIE, J., concurred.

D.E. HOLBROOK, JR., P.J. (dissenting).

I respectfully dissent. I agree with the majority in that it is proper to presume that the October 20, 1980, will was revoked. However, I do not believe that the codicil of November 22, 1980, should be admitted to probate.

The majority relies upon MCL 700.12; MSA 27.5012, which provides in pertinent part that:

"(3) `Will' includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will."

I do not agree that the codicil^[1] in the instant case was ever intended to stand alone as a will. Our primary duty is to effectuate the intent of the testator. In re Shaw Estate, 138 Mich App 751, 754; 360 NW2d 921 (1984). We have held that it was the deceased's intent to revoke his October 20, 1980, will. The codicil, which was written less than a month after the will, cannot be understood unless the will is read in conjunction with it. The codicil ratifies the will, which implies that as of November 22, 1980, that will was still in existence. The codicil does not revive the will.

It is true that the only elements our code requires for incorporation by reference^[2] are that the writing must be in existence at the time the will is written, the intent to incorporate must be shown and the writing must be identifiable. While the code does not expressly state that the document must still be in existence at the time the will is read, I believe that such a requirement is both necessary and logical.

In the instant action we are presuming that decedent revoked his will by destroying it. Construing what the Legislature meant by the word "revoke", we turn to the dictionary definitions. In re Condemnation of Lands, 133 Mich App 207, 211; 349 NW2d 261 (1984). Black's Law Dictionary (4th ed, 1951) defines "revoke" as: "To annul or make void by recalling or taking back, cancel, rescind, repeal, reverse."

Accordingly, as decedent intended to annul or cancel his will of October 20, I would hold that this will should not be admitted to probate for any reason. If the codicil could have been admitted independently without reference to the now void will, I would have agreed to admit it.

In the instant case, to admit the codicil entails admitting the will. As the testator's intent was to revoke his will, I find that the admission of the codicil would result in all but one of the provisions of the original will being effective. As this is contrary to the decedent's intent, I would hold the codicil, which is so intermingled with the will as to be meaningless without it, to also have been revoked in the instant case.

I would affirm the trial court.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Decedent's codicil was properly signed and witnessed. The provisions are as follows:

"FIRST CODICIL TO LAST WILL AND TESTAMENT OF RAYMOND N. SMITH

"I, RAYMOND N. SMITH, residing in the County of Ottawa, State of Michigan, being of sound mind and memory, do make, publish and declare this to be the First Codicil to my Last Will and Testament, executed on October 20, 1980, in the manner following:

"ONE: The first paragraph of Paragraph Three is hereby amended to read as follows:

"`I devise to William Bowen the sum of Five Dollars.'"

"I hereby ratify the remaining paragraphs contained in Paragraph Three.

"TWO: I also ratify and confirm the balance of the provisions contained in my original Will dated October 20, 1980."

[2] MCL 700.130; MSA 27.5130.