Owens v. Doyle

• Decision Date: 02 December 1964
• Citation: 11 A.L.R.3d 1006,205 A.2d 495,152 Conn. 199
• Court: Connecticut Supreme Court
• Parties: , 11 A.L.R.3d 1006 Robert W. OWENS, Jr., et al. v. Hazel J. DOYLE, Executrix (ESTATE of Mary E. MORRIS, Jr.). Supreme Court of Errors of Connecticut

Page 495

205 A.2d 495

152 Conn. 199, 11 A.L.R.3d 1006

Robert W. OWENS, Jr., et al. v. Hazel J. DOYLE, Executrix (ESTATE of Mary E. MORRIS, Jr.).

Supreme Court of Errors of Connecticut.

Dec. 2, 1964.

Joseph L. Melvin, Stamford, for appellants (plaintiffs Eye Surgery Fund, Inc., et al.), and Rodney E. Eyster, New Haven, for appellant (plaintiff Berkshire Schools).

John L. Calvocoressi, Hartford, with whom was DeLancey Pelgrift, Hartford, for appellee (defendant).

Before KING, C. J., and MURPHY, ALCORN, COMLEY and LEIPNER, JJ.

KING, Chief Justice.

Mary E. Morris, Jr., died in Beverly Hills, California, on July 10, 1959, at the age of eighty-five. On September 10, 1959, the Probate Court for the district of Westport, Connecticut, admitted to probate her will, dated November 10, 1955, and two codicils thereto, one dated July 19, 1957, and the other, November 8, 1958. On December 15, 1959, after unsuccessfully attacking the jurisdiction of the Westport Probate Court on the ground that the decedent was a domiciliary of California, the defendant, Miss Hazel J. Doyle, the decedent's nurse and companion, filed an application for the probate of an unattested holographic instrument dated December 2, 1958, which her application described as a codicil. The defendant filed an amended application for probate, dated March 18, 1960, in which she described the unattested holographic instrument as a will and further asked that the court revoke so much of its order of September 10, 1959, admitting to probate the earlier will and codicils, as was inconsistent with the holographic instrument. On May 1, 1962, ¹ the Probate Court revoked its order of September 10, 1959, and admitted to probate as a will the holographic instrument of December 2, 1958, and those portions of the earlier will and codicils which it found incorporated by reference into the holograph. The residuary legatees, hereinafter called the plaintiffs, appealed to the Superior Court, which affirmed the order of the Probate Court and rendered judgment dismissing the appeal. This appeal is from that judgment.

I

The plaintiffs' first claim is that the unattested holograph, quoted in the footnote, ² is a codicil, and not a will as the court below found. Although the decedent entitled the holograph 'my last will', whether a testamentary document is a will or a codicil is not determined by the designation given it by the testatrix but by its form and content. Matter of Diez, 50 N.Y. 88, 92; Bingaman's Estate, 281 Pa. 497, 506, 127 A. 73. The distinguishing feature of a codicil is that it is an addition to, or a qualification of, a will. Bingaman's Estate, supra, 507, 127 A. 73. That is, a codicil does not entirely revoke the will so as to stand alone as a complete dispositive instrument. Black, Law Dictionary (4th Ed.). The obvious two-fold purpose of the decedent in executing the holograph was to increase her bequest to the defendant and to dispose of the balance of her estate in the manner provided in the earlier testamentary instruments. Since the holograph does not disclose the dispositions made in the earlier instruments, it is not a complete dispositive instrument and, therefore, is a codicil rather than a will. The court below was in error in holding the codicil to be a will, and this error in turn permeated and made erroneous other portions of its decree.

II

The holographic codicil was executed in California and, even though unattested, was valid under the California Code. Cal.Prob.Code, § 25. Had this codicil been executed in Connecticut, it could not have been admitted to probate because '[n]o will or codicil shall be valid to pass any estate unless it is * * * attested by three witnesses'. General Statutes § 45-161. The defendant's claim, which was sustained by the court below, was that the codicil should be admitted under the so-called 'borrowing provision' of the same statute, which provides that 'any will executed according to the laws of the state or country where it was executed may be admitted to probate in this state.'

The plaintiffs claim that the use of the phrase 'will or codicil' in one part of § 45-161 and the use of the word 'will' in another part of the same statute demonstrated a legislative intent to differentiate between the two instruments. From this argument the plaintiffs make the final claim that the 'borrowing provision' of § 45-161 applies only to a will and, therefore, has no application to a codicil such as the holographic codicil in this case.

In the first place, in many other statutes ³ the word 'will' is used where the context strongly suggests that 'codicil' may also have been intended. Furthermore, it is incorrect to treat § 45-161 as a single section. What is now § 45-161 first assumed its present form in § 2 of chapter I of title XX, page 402, of the Revision of 1866. ⁴ That section was a combination, first made in that revision, of § 2 chapter I of title XIV, page 346, of the Revision of 1849, which prescribed the formal requisites of the due execution of a 'will or codicil', with chapter VII of the Public Acts of 1863, which provided for the admission to probate, in Connecticut, of any 'will' executed out of the state in conformity with the laws of the state of execution. The two parts were combined by the revisers without substantial change. Thus, there is no support for the claim that in this single section, which results from the combination of two separate enactments, any significant differentiation was intended between 'will or codicil' on the one hand and 'will' on the other hand. On principle, no reason has been suggested for our admitting to probate a foreign will but excluding from probate a foreign codicil. We hold that § 45-161 applies equally to foreign wills and foreign codicils.

III

If a probate decree has been rendered on proper notice, and no appeal has been taken, the decree may not be set aside or modified by the Probate Court except under express statutory authority. General Statutes § 45-20; Delehanty v. Pitkin, 76 Conn. 412, 416, 56 A. 881; Haverin v. Welch, 129 Conn. 309, 316, 27 A.2d 791; see also Adams v. Williamson, 150 Conn. 105, 109, 186 A.2d 157.

The Probate Court concluded that the holographic codicil was a revocatory will within the meaning of § 45-186, ⁵ and that as such it formed a proper basis on which to annul the September 10, 1959, decree and thereafter to proceed with the settlement of the estate.

The plaintiffs claim that even if the holographic codicil was admissible to probate under § 45-161, in the same way as if it had been a will, it was not a revocatory instrument within the meaning of § 45-186 because it was not completely revocatory of the original will. This claim is without merit. There is no more justification for considering that the legislative intent in the use of the word 'revoked' in § 45-186 was restricted to 'total' or 'complete' revocation than for considering that it had such an intent in the use of the word 'revoked' in § 45-162. The latter section provides for the manner in which a will may be revoked. In the relevant part that section states: 'No will or codicil shall be revoked in any other manner except by burning, canceling, tearing or obliterating it by the testator or by some person in his presence by his direction, or by a later will or codicil.' Thus, a will may be revoked by a later codicil. Since a codicil is by definition not completely revocatory, the word 'revoked' in § 45-162 must embrace both complete and partial revocation. There is nothing in § 45-186 to suggest any different meaning. Furthermore, it has been virtually settled that, by cancellation, a testator can effect a valid partial revocation of a will or codicil. Miles' Appeal, 68 Conn. 237, 244, 36 A. 39, 36 L.R.A. 176; see also Harchuck v. Campana, 139 Conn. 549, 551, 96 A.2d 566. Such a holding would be impossible if the word 'revoked' in § 45-162 were to be construed as limited to a complete revocation. We conclude, therefore, that the holographic codicil, even though not completely revocatory, is within the scope of § 45-186.

The decree of the Probate Court dated May 1, 1962, was erroneous (1) in that it referred to the third codicil as a will; (2) in that it should have admitted to probate the third codicil dated December 2, 1958, as a codicil rather than as a will; and (3) in that it should have revoked only so much of the order and decree of September 10, 1959, as was inconsistent with the third codicil. See cases such as First National Bank & Trust Co. v. Baker, 124 Conn. 577, 583, 1 A.2d 283, 118 A.L.R. 339. Since the Superior Court, in its judgment, dismissed the appeal from probate, it in effect affirmed the judgment of the Probate Court, and this judgment in turn was erroneous in the respects heretofore pointed out.

IV

The plaintiffs also claim that the defendant is barred from proceeding under § 45-186 because she did not exercise her right to appeal from the probate decree of September 10, 1959, or from the order of November 20, 1959, dismissing her challenge to the jurisdiction of the Probate Court. This claim must fail because the exercise of the right to appeal is nowhere made a condition precedent to proceeding under § 45-186. Indeed, one obvious purpose of § 45-186 is to provide a remedy where the time to appeal has expired. The only limitation put on this remedy under § 45-186 is the completion of administration, which has not taken place.

The plaintiffs further allege that the delay of the defendant in presenting the holographic codicil for probate should bar her right to have it admitted. Delay alone is not sufficient to bar a right. Mills v. Mills, 119 Conn. 612, 621, 179 A. 5; Wells v. Carson, 140 Conn. 474, 477, 101 A.2d 297; Sarner v. Fox Hill, Inc., 151 Conn. 437, 444, 199 A.2d 6. Delay, if unreasonable, is one element of laches; Sarner v. Fox Hill, Inc., supra; or, if justifiably relied on, is one element of estoppel. Franke v. Franke, ...