Linnard's Appeal

Mr. Justice Sterrett

delivered the opinion of the court, March 30th 1880.

The will of Miss Linnard, consisting of the original paper, dated December 5th 1877, executed in the presence of two subscribing witnesses, and four codicils signed by her but not dated or witnessed, was admitted to probate September 26th 1878, four days after her decease. The original paper was re-signed by the testatrix immediately below and in connection with the attestation clause over date of December 13th 1877. Sometime thereafter she made several changes in her will by drawing a pen transversely across the words creating some of the legacies, and in one instance she substituted a sum different from that originally written. In the seventh item she had given to her nephew, the appellant $500, in trust, to invest and pay the income to Cornelia Purnell during her life, and at her decease the principal to fall into her residuary estate. She altered this bequest by drawing her pen across the word “ five” and writing over it the word “ three,” and also placing the numeral “ 3” both above and beneath the erased word. In a similar manner she erased a clause in the second item, giving a legacy of $500 to Eugene, son of her nephew, John J. Linnard, and, in the sixth, item, a legacy of $200 to another person; and also the second paragraph to the first codicil, together with her signature thereto, in which she had made a different disposition of the $500 legacy stricken out of the second item of the will. After or in connection with the erasure of the paragraph referred to she appears to have completed and signed what now appears as the first codicil. The other codicils, without date or subscribing witnesses, follow in their order. The will as probated exhibits these erasures and alterations; the words erased in the manner above stated are all distinctly legible.

The act of the testatrix in thus striking out the words in the second and sixth items was evidently intended to operate as a cancellation of her will as to these clauses, and was quite sufficient for that purpose; but no such intention can be inferred from the erasure and interlineations in the seventh item. It is very clear that it was not her intention to cancel it, or wholly revoke the legacy. Her object was simply to reduce the amount from $500 to $300; and by holding, as the court did, that, in the absence of proof of re-execution after the alteration was made the substituted legacy could not be sustained her intention was defeated. While the Act of 1833, provides that no will in writing shall be repealed, nor shall any devise or direction therein be altered otherwise than by some other will or codicil in writing, &e., it cannot be doubted that the execution of the second or either of the subsequent codicils, after the alteration, would have the effect of confirming the will as thus altered, and would be a sufficient compliance with the act. A duly executed codicil operates as a republication of the original will so as to make it speak as of the date of the codicil: Coale v. Smith, 4 Barr 376; and, it not only operates as a new adoption of the prior will to which it refers, but also as a revocation of an intermediate will: Neff’s Appeal, 12 Wright 501. In Wikoff’s Appeal, 3 Harris 281, Chief Justice Gibson, speaking of interlineations, proved to be in the handwriting of a testatrix, says: “ The presumption is that they were made at or before the time when the -will was prepared for the final act.” So in the present ease it may fairly bo presumed that the alterations, admitted to be in the handwriting of Miss Linnard, were made before she appended her signature to the last codicil. If this be so, the testamentary paper as altered, including the codicils, speaks as of that date, and should he regarded as her will, properly executed at that time. It is stated as a fact that the alterations were not made before the original paper was re-signed on December 13th 1877 ; but it does not follow from this that they were not made before the last or some of the preceding codicils were executed. Indeed, the fair inference from the paper itself would seem to he that they were made before the second codicil. As has already been observed, the clause stricken out of the first codicil, before it was completed, refers to the cancelled legacy in the second item of the original paper, so that it may be fairly inferred that this was done before the testatrix signed what now stands as the first codicil; and it is quite probable that the alterations in the original paper were all made at the same time. But however that may be the, presumption is that she m.ade them before she affixed her name to the last codicil. Her signature to that having been duly proved should, in the absence of evidence to the contrary, be regarded as her final act.

Moreover, the probate of the will as we now find it, was an adjudication of its due execution, including, by necessary implication, the republication of the instrument after the alteration in question was made. This established, prima facie at least, the validity of the legacy; and certainly, in the absence of proof that the alteration was made after the last codicil, the legacy should have been admitted. The item containing it was not stricken out or obliterated. A single word was erased and another substituted by the testatrix, and the item as thus altered, was adjudged to be a constituent part of lier will. The clauses that were erased, and thus practically cancelled or striken out of the will, were to be regarded in a very different light. They formed no part of the testamentary paper as probated, and were to he treated as though they had never been there. In the distribution of the estate, the will was before the court for construction, and as a guide in determining who were entitled to participate in the fund; -but the question of its duo execution, in whole or in part, did not properly arise in that proceeding. That matter had been adjudicated, and no appeal had been taken. We are of opinion, that the legacy of $300 in question, should have been admitted to participation in the distribution.

Decree reversed and record remitted, with instructions to distribute the fund in accordance with the foregoing opinion. The costs of this appeal to be paid out of the fund for distribution.