Codicil

Some addition to, or qualification of, a last will and testament This term is derived from the Latin codicillus, which is a diminutive of codex, and in strictness imports a little code or writing,— a little will. In the Roman Civil Law, codicil was defined as an act which contains dispositions of property in prospect of death, without the institution of an heir or executor. Domat, Civil Law, p. ii. b. iv. tit. i. s.

1; Just. De Codic. art. i. s. 2.

So, also, the early English writers upon wills define a codicil in much the same way. "A codicil is a just sentence of our will touching that which any would have done after their death, without the appointing of an executor." Swinb. Wills, pt. i. s.

5, pi. 2.

But the present definition of the term is that first given. 1 Wills, Exrs. very nearly coincided in regard to this subject, It was considered that no one could make a valid will or testament unless he did name an executor, as that was of the essence of the act. This was attended with great formality and solemnity, in the presence of seven Roman citizens as witnesses, omni exceptione majores. Hence a codicil is there termed an unofficious, or unsolemn, testament. Swinb. Wills, pt. i. s. v. pi.

4; Godolph, pt. i. c. 1, s. 2; id. pt. i. c. 6, s.

2; Plowd. 185; where it is said by the judges, that "without an executor a will is null and void," which has not been regarded as law, in England, for the last two hundred years, probably. The office of a codicil under the civil law seems to have been to enable the party to dispose of his property, in the near prospect of death, without the requisite formalities of executing a will (or testament, as it was then called). Codicils were strictly confined to the disposition of property; whereas a testament had reference to the institution of an heir or executor, and contained trusts and confidences to be carried into effect after the decease of the testator. Domat, b. iv. tit. i. In the Roman Law there were two kinds of codicils: the one, where no testament existed, and which was designed to supply its place as to the disposition of property, and which more nearly resembled our donatio causa mortis than anything else now In use; the other, where a testament did exist, had relation to the testament, and formed a part of it and was to be construed in connection with it. Domat, p. ii. b. iv. tit. i. s. i. art. v. It is in this last sense that the term is now universally used in the English law, and in the American states where the common law prevails. Codicils owe their origin to the following circumstance. Lucius Lentulus, dying in Africa, left codicils, confirmed by anticipation in a will of former date, and in those codicils requested the Emperor Augustus, by way of fidei commissum, or trust, to do something therein expressed. The emperor carried this will into effect, and the daughter of Lentulus paid legacies which she would not otherwise have been legally bound to pay. Other persons made similar fidei commissa, and then the emperor, by the advice of learned men whom he consulted, sanctioned the making of codicils, and thus they became clothed with legal authority.

Inst 2. 25; Bowy. Com. 155.

All codicils are part of the will, and are to be so construed; 17 Sim. 108; 16 Beav. 510, 2 Ves. Sen. Ch. 242; 4 Y. & C Ch. 160; Wilkes v. Harper, 3 Sandf. Ch. (N. Y.) 11; 4 Kent 531. See Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Burhans v. Haswell, 43 Barb. (N. Y.) 424; and executed with the same formalities; Schoul.

Wills 359; 4 Kent 531; Tilden v. Tilden, 13 Gray (Mass.) 103.

A codicil properly executed to pass real and personal estate, and in conformity with the statute of frauds, and upon the same piece of paper with the will, operates as a republication of the will, so as to have it speak from that date; Coale v. Smith, 4 Pa. 376; Armstrong v. Armstrong, 14 B. Monr. (Ky.) 333; Brimmer v. Sohier, 1 Cush. (Mass.) 118; 3 M. & C. 359. So also it has been held that it is not requisite that the codicil should be on the same piece of paper in order that it should operate as a republication of the will; Kip v. Van Cortland, 7 Hill (N. Y.) 346; Den v. Snowhill, 23 N. J. L. 447; 1 Ves. Sen. 442; Harvy v. Chouteau, 14 Mo. 587, 55 Am. Dec. 120; but where it is on the same piece of paper, not Estate, 9 Pa. Co. Ct. R. 333; but see Brown's Ex'r v. Tilden, 5 liar. & J. (Md.) 371. A codicil duly executed, and attached or referring to a paper defectively executed as a will, has the effect to give operation to the whole, as one instrument; Schoul.

Wills 448; Beall v. Cunningham, 3 B. Monr. (Ky.) 390, 39 Am. Dec. 469; Haven v. Foster, 14 Pick. (Mass.) 543; 1G Yes. Ch. 1G7; 1 Ad. & E. 423; Matter of Bardenburg's Will, 85 Hun 5S0, 33 N. Y. Supp. 150.

See numerous cases cited in 7 Ves. Ch. (Sumner ed.) 98; 1 Cr. & M. 42. There may be numerous codicils to the same will. In such cases, the later ones operate to revive and republish the earlier ones; 3 Bingh. Gil; 12 J. B. Moore 2.

See Johns Hopkins University v. Pinckney, 55 Md. 365.

In order to set up an informally executed paper by means of one subsequently executed in due form, referring to such informal paper, the reference must 'be such as clearly to identify the paper; Tonnele v. Hall, 4 N. Y. 140. A codicil which depends on the will for interpretation or execution falls, if the will be revoked; 1 Tucker 436; Jouse v. Forman, 5 Bush ^Ky.) 337. It is not competent to provide by will for the disposition of property to such persons as shall be named in a subsequent codicil, not executed according to the prescribed formalities in regard to wills; since all papers of that character, in whatever form, if intended to operate only in the disposition of one's property after death, are of a testamentary character, and must be so treated; 2 Yes. Ch. 204; 2 M. & K. 765. So much of the will as is inconsistent with the codicil is revoked; Bosley v. Wyatt, 14 How. (U. S.) 390, 14 L. Ed. 468. A codicil whose only provision is the appointment of an executor who had died, cannot be admitted to probate apart from the will; Pepper's Estate, 148 Pa. 5, 23 Atl. 1039. A testator executed a codicil which was described as "a codicil to my will executed some years ago," and after his death the will could not be found, but probate of the codicil was granted; [1892] Prob. 254.

See Wells. C0EMPTI0.

In Civil Law. The ceremony of celebrating marriage by solemnities. The parties met and gave each other a small sum of money. They then questioned each other in turn. The man asked the woman if she wished to be his mater -familias. She replied that she so wished. The woman then asked the man if he wished to be her patcr-familias. He replied that he so wished. They then joined hands; and these were called nuptials by coemptio. Boethius, Coemptio; Calvinus, Lex.; Taylor, Law Gloss.