Codicil

Some addition to, or qualification of, a last will and testament. 1 Redf. Wills, 287. _ 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, Civ. Law, pt. ii. bk. iv. tit. 1. i 1; Just, de Codic. art. i. § 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. § v. pi. 2. COEMPTIO (Lat.)

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 materfamilias. She replied that she so wished. The woman then asked the man if he wished to be her pater-familias. He replied that he so wished. They then joined hands; and these were called nuptials by eoemptio. Boethius, Coemptio; Calv. Lex.; Taylor.

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.

A supplement to a will explaining, adding visions. It is made by the testator, is annexed be taken as a part of it

A testamentary disposition subsequent to a will, and by which the will is altered, explained, added to, subtracted from, or confirmed by way of republication, but in no case totally revoked, 2 Woodd. Lect. 284. A codicil is an addition or supplement to a will, either to add to, take from, or alter the provisions of the will. It must be exe cuted with the same formality as a will, and, when admitted to probate, forms a part of the will, Code Ga. 1882, § 2404.

3 A supplement to a will, or an addition made by the testator, annexed to, and to be taken as part of, a testament: being for its explanation, or alteration, or to make some addition to, or else some subtraction from, the former disposition of the testator.* A clause added to a will after its execution; the purpose of which usually is to alter, enlarge, or restrain the provisions of the will, or to explain, confirm, and republish it.' Part of the will, to be construed with it, as one entire instrument... But the will is not altered by the codicil, except by express words or necessary implication. It is to be deemed altered by necessary implication where a subsequent provision is inconsistent with and repugnant to a prior provision. But where they can stand together, both shall have effect. ^ The effect of republication of the will by the addition of a codicil is to bring both instruments to the same date.' See Will, 2.

An addition to a will, executed at a later time.

[Lat. codidllus, q. v.] A supplement to a will, or an addition made by the testator, and annexed to, and to be taken as part of a testament, by which its dispositions are explained, added to, or altered * 2 £1. Com. 600. 4 Kent's Com. 631. 1 Steph. Com, 646. — A testamentary disposition subsequent to a will, and by which the will is altered, explained, added to, subtracted from, or confirmed by way of republication, but in no case totally revoked. 2 Wooddes. Lect 284. De Grey, C. J., 3 WiU, 613. For general purposes, a codicil is considered as a will, the distinction between them existing only in their relation to each other. 1 Powell on Devises, 20, note (4). 1 Steph. Com. 545. By the new English Statute of Wills, 1 Will. IV., and 1 Vict. c. 26, the term mil is to be taken as including a codicil. And the rule is the same in the state of New-York. 2 Bev. Stat. [68, § 71,] 12, § IS. So that a codicil must be executed with the same formalities, and proved in the same manner as the will itself. 4 Kent's Com. 531. See 7 mirs i^. F. JRep. 346. 12 Gill d Johns. 288. The name, and, in some sense, the modem use of a codicil, are taken from the codieillus of the Roman law, which, however, was, in many respects, a very different instrument. See Codieillus. Two definitions of the term are given in the old dictionaries. The last in order is substantially the modem definition, but^the first, and apparently the preferred one, is in the following words: "A codicil is the will or testament of a man, concerning that which he would have done after his death, without the appointing of an executor.^' Termes de la ley. "A codicil is the same with a testament, but that it is toithout an executor." Cowell. Blount. This definition seems to be modelled after the idea of a codieillus in the Roman law, which was merely an informal, and subordinate, but distinct and independent species of will. See Codidllus. Its peculiar feature, however, k that which denies to a codicil the appointment of an estecutor. Dr. Wooddeson obterves on this pomt, as if in explanation of this peeulktrity, that codicils were never thought to require the appointment of a new executor to carry them into execution. 2 Wooddes. Lect. 284. In this view, no doubt, we may still say with propriety that a codicil is " without the appointment of an executor." But that the old definition signified something more is obvious from the language of Swinburne, who expressly lays down the position that a codicil does not admit the appointment of an executor, and bases upon that circumstance the peculiar and principal distinction between it and a will. Swinburne on Wills, part 1, § 6, n. 3, p. 13, It is hardly necessary to say that this doctrine of Swinbume's is not now law. 2 Wooddes. Lect. uh. sup.