Bradish v. McClellan

Mr. Justice Mercur delivered the opinion of the court, October 2d 1882. This contention relates to the will of James Hamilton, who died January 23d 1873. On November 20th 1871 he executed a writing purporting to be his last will and testament. On January 13th 1873 he executed another of similar import, in which he made a charitable bequest differing from one in the first will. On the-day of January 1873 he executed a third writing purporting to be a “ Codicil to my last will and testament.” It was not written on the same piece of paper on which either of the former was written, nor was it attached thereto. It gave bequests and devises to persons not named in either of the former writings, and, inter alia, devised the land in question to the defendant. It proceeded to recite and declare, “whereas there is an Act of Assembly rendering void all eleemosynary bequests and devises, if not executed in a certain number of days before the decease of the testator: and whereas I executed a will dated November the 20th 1871: Now I, James Hamilton, the testator, declare said will of November 20th 1871, marked A, to bo my last will and testament, should I die before the 1st of March 1873, otherwise the will of the 13th of January 1873 shall be and is hereby declared to be my last will.” After the death of the testator the three writings were connected together, and all of them admitted to probate. As he died before the first of March the writing of January 13th did not take effect as a will: Bradish’s Appeal, 24 P. F. Smith 69. The question now is, did the codicil become inoperative and fall with that writing or did it become a supplement to the will of November 20th 1871? Although a subsequent will without a revoking clause will repeal a prior will, yet it does not preclude a testator by appropriate writing from reinstating the prior one. A codicil may revoke by implication the posterior of two wills, by expressly referí ing to, and recognizing the prior one as the actually subsisting will of the testator: 1 Jarman *189. Here the codicil does not stop with an implication. With both wills in his mind, he refers to each distinctly, and in unmistakable language the testator declares, [613] in a certain contingency the earlier one to be his last will and testament. That contingency occurred. 'When the testator executed the codicil, he was uncertain which of the former writings would take effect as his will. It depended on the contingency of his dying before the time specified. There however was no contingency stated in regard to the codicil. There was no intimation that it should not take effect in cither case. The clear intent was that it should have full effect and attach itself to whichever writing became operative as a will. The codicil was to become a part of that writing, and the two constitute the whole will. Any presumption that the codicil and the writing of January 13th were both executed at the same time, is clearly rebutted by the reference in the codicil to the latter as a writing then existing. The conclusion to which we have come is not in conflict with the point decided in Bradish’s Appeal, supra, properly understood. The main question there was whether effect should be given to the writing of November 1871 in regard to charitable bequests therein. They were held to be valid. No person claiming under the codicil was a party to that issue. Hence the rights of the defendant were not there discussed nor decided. There is a dictum in the opinion as to the intent of the codicil, to which we cannot agree. We cannot therefore hold that sufficient to defeat the title which we think the defendant so clearly took under the codicil, to the land in question. The' learned judge correctly held that the plaintiff could not recover. Judgment affirmed.