Pardee v. Kuster

89 P. 572, 15 Wyo. 368, 1907 Wyo. LEXIS 17

Opinions

Scott, Justice.

On May 18, 1903, Charles Kuster made and executed his will containing among others the following recital, viz.:

“Second — As to my property, both real and personal, I make the following disposition to take effect upon my death, viz.:

“To my beloved son, Charles F. Kuster, I do give, grant and bequeathe all of my property, both real and personal, within the State of Wyoming; he, the said Charles F. Kus-ter, however, not to have possession, manage or control of the same for two years after my demise * *

It is alleged that on the following day he signed an instrument, in form a deed, with covenants of warranty; purporting to convey to the plaintiff a house and lot situated in the City of Laramie, Wyoming, which instrument contained the following provision: “This instrument is to be in full force and effect from and after my death.” On May 21, 1903, two days after the date of the purported deed, the testator made a codicil to his will as follows: “I, Charles Kuster, of Laramie, Wyoming, having made my last will and testament bearing date the 18th day of May, A. D. 1903, do make this codicil to be taken as a part of the same:

“First — I hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil.

“Second- — -In case Charles F. Kuster, my son, should die within t-vyo years after my death, I give and bequeathe to my beloved half-brother, Frederick Reinsberg, of Germany, and to (his) heirs and- assigns forever, unconditionally and without reserve, all the real and personal property belonging to me at my death.

“In testimony whereof, etc.”

The deed was never delivered, and upon the death of the testator it could not be found. The testator died on July 14, 1903, and on the 16th day of August following the will, executed on May 18, 1903, and the codicil thereto, executed on May 21, 1903, was duly admitted to probate and the defendant, Abrams, who was nominated’in the will, was duly appointed and qualified as executor. On July 23, 1904, the plaintiff commenced this action in the District Court of Albany County to establish the lost deed as a codicil to the will. She alleged in her petition that the deed had been lost during the testator’s life 'or fraudulently destroyed after his death. Upon issue joined the case was tried to the court without the intervention of a jury, and the court found generally and rendered judgment for the defendants. The plaintiff brings the case here upon error.

The defendants object to the consideration of any of plaintiff’s assignments of error on the ground that her petition filed in the court below does not state facts sufficient to constitute a cause of action. The sufficiency of her petition was raised by demurrer in that court and although it was overruled the defendants are not barred from raising the question here, for if such petition was not sufficient to support a judgment in her favor she cannot be heard to say that she was prejudiced by the entry of the judgment complained of. The will, codicil and deed are set out in the petition and the sufficiency of the latter turns upon the construction of these instruments considered together and thus constituting, as alleged by her, the last will of the testator.

By the terms of the will and the codicil all of the property, both real and personal, of which testator died seized was devised to his son, Charles F. Kuster. By the terms of the deed title to the house and lot should vest in the plaintiff on the death of the grantor, who is the same person as the testator in the will. The theory upon which this case was brought is that the deed never having been delivered to plaintiff no title passed by deed, and that the latter by its terms having held the title in abeyance until the death of the grantor that the deed was in effect a will or specific bequest of the property therein described. There is no question that the legal' title of the property was in testator up to and at the time of his death; he therefore died seized of the same. Conceding that the contention of the plaintiff is correct, that the deed was in fact executed and intended by testator, and that it should be construed by the court as a codicil, yet this would not prevent the testator from executing a codicil subsequent thereto and in conflict therewith. On the 21st day of May, 1903, or two days after the execution of the deed, the testator by the codicil re-affirms the provisions of the will executed by him three days before, except in so far as any part of it is inconsistent with the codicil. It is evident that the testator had in mind the provisions of the will to which this codicil was attached, for he expressly reaffirms those provisions and, without exception or recognition of any deed or specific devise, provides in the broadest terms that all of the property, both real and personal, of which he may die seized shall go to his son, if living, as provided in the will, and in case of his death, then to his half-brother. This codicil is of a later date than the deed which is sought to be established as a codicil, and it is apparent that its terms are in conflict with the deed. Giving the latter the effect contended for, plaintiff is in the position of claiming rights under a codicil which is in conflict with the terms of a later codicil to the will. It is well settled that the deed, if in fact it was a codicil to the will, must be construed as a part thereof, and in such construction the terms of a codicil later in date must govern when repugnant to or in conflict with the terms of the will or prior codicil thereto. (6 A. & E. Ency of Law, 186, and cases there cited.) And in this sense the word will is used to mean the will as first executed, together with all codicils, be they many or few, which have been added thereto, and the meaning and effect of which taken together is re-affirmed or changed by the last codicil; and the will so changed or re-affirmed speaks from the date of its republication by the last codicil. (Coale v. Smith, 4 Pa. St., 386; Graham v. Burch, 28 Am. St. Rep., 353; Gilmor’s Estate, 35 Am. St., 855; Linnard’s Appeal, 93 Pa. St., 316; 39 Am. Rep., 753; Hawke v. Euyart, 27 Am. St. Rep., 391; Matter of Stickney, 76 Am. St. Rep., 246; 161 N. Y., 42; McIntyre v. McIntyre, 102 , and note p. 77.) It is an established rule of construction that “the codicil shall change the will only in so far as the intent is manifest; and the provisions of the will are not to be disturbed further than is necessary to give effect to the codicil.” (Holden v. Blaney, 119 Mass., 421.) The codicil, made and signed on May 21, 1903, republished the will, and took no notice of the deed, and the title to the property described in the deed remained in testator up to and at the time of his death. The provisions of the will as originally drawn with respect to the property here involved were continued in force as and from the date of its republication by the terms of the codicil and were repugnant and antagonistic to the claim of the plaintiff; the codicil being of a later date than her deed must under the established rules of construction be deemed to express the intent of the testator. Conceding the allegations of the petition to be true and' that the lost deed was in fact executed as a codicil to the will, then upon reason and authority the deed so construed was revoked and of no validity — its terms and provisions being antagonistic to those of a later codicil.

Upon the facts alleged in the petition and in this view of the case it becomes unnecessary to discuss the evidence the sufficiency of which is in dispute and upon which the court found for the defendants; nor is it here necessary to discuss the rules governing the establishment of lost wills, for as already indicated if the evidence was sufficient for this purpose still by the rules of construction the finding and decree of the court was right and should not be disturbed.

The judgment will be affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.