Levin, James

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University of Kentucky

Kentucky Law JournalVolume 44 | Issue 1 Article 121955Holographic Codicils Incorporating by Referenceand Republishing Invalid Non-HolographicDocumentsJames LevinUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Estates and Trusts CommonsClick here to let us know how access to this document benefits you.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationLevin, James (1955) "Holographic Codicils Incorporating by Reference and Republishing Invalid Non-Holographic Documents,"Kentucky Law Journal: Vol. 44 : Iss. 1 , Article 12.Available at: https://uknowledge.uky.edu/klj/vol44/iss1/12KENTucXY LAw JouRNA,And yet, the privilege in most of its aspects seems well worthpreserving. It is best defended, not as an unchangeable principleof universal justice, but as a doctrine proved by experience to beexpedient in most cases.23WEND= r~rS. WMLIAsHOLOGRAPHIC CODICILS INCORPORATING BYREFERENCE AND REPUBLISHING INVALIDNON-HOLOGRAPHIC DOCUMENTSThe result reached in a recent case in Oklahoma, Johnson v.Johnson,1 suggests the need of re-examining the status of the lawas to holographic codicilhiary incorporation by reference and re-publication.The case was briefly this: The testator typed numerous be-quests and devises on a single sheet of paper. This typewrittenportion was not dated, nor did the testator sign his name at theconclusion thereof, nor was it attested by two witnesses. At theend of the typewritten portion and on the same page the testatorwrote the following in his handwriting: "To my brother James Igive Ten Dollars only. This will shall be complete unless here-after altered, changed or rewritten." He signed and dated thelatter, but it was not attested.2The Oklahoma Supreme Court" held that the written portionof the instrument constituted a valid holographic codicil whichincorporated the typewritten portion by reference and republishedand validated it as a valid will, as of the date of the codicil. Thecourt, in upholding the entire sheet of paper as a valid will, re-lied on the general principle of law that a codicil which is validlyexecuted will operate as a republication of an earlier will regard-less of defects which may have existed in the execution of theearlier document.4 In order to apply this doctrine to the case, theOklahoma court concluded that the earlier typewritten portionwas a will although not signed, that the written portion beingSee Twining v. New Jersey, 211 U.S. 78, 113 (1908).1279 P. 2d 928 (Okla. 1955).'Id. at 929.'Although the decision was styled as a Per Curiam decision, it was renderedby a 5-8 vote upholding the validity of the will.' Supra note 1, at 931.NoTEs AND Conm-'rswholly in the handwriting of the testator was a valid holographiccodicil, which under the general rule republishes the typewrittenportion by incorporating it under the doctrine of incorporationby reference. Indeed, there is a general principle of law that acodicil has the effect of reviving and republishing the terms of aninvalid will,5 but in order to have that force the codicil, being anappendage to and construed as part of the original will, mustrefer to the will in such a way as to leave no doubt as to theidentity of that instrument. The codicil must in no sense be de-pendent for its validity upon the will in conjunction with whichit was intended by the testator to be operative.6It is well settled that for the purpose of determining thetestamentary intention, a will and its codicils are regarded as asingle and entire instrument taking effect at the time of testator'sdeath.7 They are construed together as if they had been executedat the time of the making of the codicil.8 Thus a duly executedcodicil operates as a re-execution of the original defective willand makes it valid from the date of the codicil.9 This principlerests upon the theory that a proper execution of the codicil ex-tends to the prior will and since in theory the two instrumentsare incorporated as one, the subsequent execution makes bothinstruments valid.' ° While for purposes of construction a codiciland the will to which it relates are to be considered as a singleinstrument, such is not the case where the question relates to theformality of execution. Then both instruments are to be con-sidered separately and the validity of execution in respect to one"Twenty-two states and England so hold. For citation of cases see 21 A.L.R.2d 823 (1952). That a properly executed codicil will give effect to a will whichwas not validly executed has been specifically held in Kentucky. See Beall v.Cunningham, 42 Ky. 390 (1843); Hurley v. Blankenship, 313 Ky. 49, 229 S.W.2d 963 (1950).6Slaughter's Adm'r. v. Wyman, 228 Ky. 226, 230, 14 S.W. 2d 777, 779(1929). There is authority for thetproposition that a codicil may be probatedas an independent instrument when the will to which it refers has been renderedinoperative by law, as by subsequent marriage. But the codicil must be com-plete in itself as to be capable of execution and not dependent upon the will towhich it attempts to refer. In re Pardy's Estate, 291 N.Y.S. 969, 976 (1936).Breekinridge v. Breckinridge's Ex'rs., 264 Ky. 82, 94 S.W. 2d 283 (1936).8In New York a properly executed codicil validates a will originally invalidfor want of testamentary capacity, undue influence, or revocation but does notvalidate a will defectively executed because of improper attestation. It will benoted, however, that Justice Cardozo in Re Fowles, 222 N.Y. 222, 118 N.E. 611,612 (1918), stated that the rule was malleable and uncertain and should beabandoned.Hurley v. Blankenship, Supra note 5.' See 57 Af. Jtu. 429 (1948).KENTUCKYy LAW joPENALis not conclusive in respect to the other. The original will is notrendered invalid by reason of the failure to have a codicil properlyexecuted. On the other hand, a codicil, if properly executed, canoperate to validate a defective will by either re-executing the will,or by the doctrine of incorporation by reference. In either caseit is a rule of imputed intention, and therefore all the circum-stances must be consistent with an intention to validate thepreviously defective will,"- or to re-execute a previously revokedwill.'2The courts often speak in terms of revival and republicationin such cases even in jurisdictions where publication is not es-sential to validate a will at its inception. 3 The term "revivar'implies that the instrument revived once had testamentary lifebut before the execution of the codicil it had for some reasonbecome void. "Republication" is the re-execution of a valid willor codicil, the effect of which is to give it added force and is arestatement of those valid and existing testamentary instrumentsto which the codicil applies.' Frequently these terms are usedin the same sense and when courts refer to revival and republica-tion they are actually referring to re-execution.When a holographic will is not signed originally and thetestator later writes his signature in a codicil appearing on thesame sheet of paper, it would seem that a re-execution rather thanan incorporation or republication results, and the instrument ifwholly in the writing of the testator would be a valid holographicwill.'5 If the will was not originally in the handwriting of thetestator and was invalid, it may be incorporated into anothervalid instrument and become operative as a part of that instru-ment, but the subsequent instrument cannot revive or republishthat which never had life. Therefore in the Johnson case' if theholographic writing could be said to validate the typewritten por-Fidelity & Columbia Trust Co. v. Vivian, 294 Ky. 390, 171 S.W. 2d 987(1943).1 Ky. Ev. STAT. Sec. 394.100 provides that a revoked will can only be re-vived by a re-execution in same manner as a will is executed.I Some jurisdictions require that the testator declare to the attesting witnessesthat the instrument being executed is his will. See 14 IowA L. REv. 1, 14 (1928).Kentucky has no statutory requirement as to publication and it has generally beenheld that the witnesses need not be familiar with the contents of the will.Singleton v. Singleton, 269 Ky. 330, 107 S.W. 2d 273 (1937)." Evans, Testamentary Republication, 40 HAnv. L. IEv. 71, 72 (1926).Beall v. Cunningham, Supra note 5. '" Supra note 1.NoTEs AN Co nvnrstion appearing on the same page, it could properly speaking havevalidated it only by incorporating it into the valid written portion.Yet courts have often applied the doctrine that a valid codicilrepublishes and revives an instrument which was not an effectivewill because of incapacity or undue influence'17 or want of properexecution. 8 These decisions can be justified on the theory ofincorporation by reference in that the subsequent codicil in-corporates the invalid instrument and makes it speak as of thedate of the valid codicil as a valid testamentary disposition.19A document is said to be incorporated by reference into a willif all of the following requirements are met: (1) the will mustrefer to and identify the document with reasonable certainty,(2) the will must show the testator's intention to make the docu-ment part of the will, (8) the will must refer to the document asbeing in existence at the time of execution of the will and (4) thedocument must be shown to be the one referred to in the will.20Incorporation by reference should be distinguished from re-publication as incorporation arises where instruments which havenever had testamentary life are given testamentary effect throughincorporation by proper reference in a subsequently executedvalid will or codicil; whereas republication applies to incorpora-tion and republishing of instruments which, either at the time ofthe codicil or at some other time, had been validly executed.21As most jurisdictions recognize this doctrine, the result of givingeffect to the earlier instrument is therefore justified although theterminology may be faulty.22A more difficult question is whether an holographic will shouldbe allowed to incorporate by reference non-holographic docu-ments and validate the entire disposition as a valid will. Althoughthis situation can only arise in the jurisdictions which allow theprobate of holographic wills23 there is a conflict as to the applica-" Farmers Bank and Trust Company v. Harding, 209 Ky. 3, 272 S.W. 3(1925). But if the undue influence continues to exist at the time the subsequentinstrument is executed it will not validate the will.Hurley v. Blankenship, supra note 5, at 52.19 Evans, op. cit., supra note 14, at 73.'Daniel v. Tyler's Estate, 296 Ky. 808, 178 S.W. 2d 411 (1948). See alsoATmKNSON, WILLS 387 (1953).Evans, op. cit., supra note 14, at 72.22 AT=xNsoN, op. cit, supra note 20, at 392.m There are nineteen states that allow holographic instruments to be probatedas wills. Nine of these treat these wills as "an exceptional kind of written willKENTucKY LAw JouINALtion of the doctrine of incorporation to the holographic willstatutes.The California courts have consistently allowed an holographicwill or codicil to incorporate by reference documents not whollywritten by the testator, even though its statutes provide that anholographic will must be wholly in the handwriting of the testatorto be valid. In the leading case of In Re Soher's Estate,24 thetestator executed an invalid attested will, later adding an holo-graphic codicil. The California court allowed the will to be pro-bated and said that the extrinsic document did not as a matter ofphysical fact become part of the holographic will. The fiction ofregarding such a document as part of the will is to aid in its con-struction and should not be extended to reach unjust con-sequences.In Hewes v. Hewes2 5 the Mississippi court took the oppositeposition. In that case the testatrix executed two invalid formalwills, later writing a letter wholly in her handwriting mentioningboth invalid wills. The court held that since the letter was un-attested it could not incorporate anything not wholly in the testa-tor's handwriting. The court concluded that to allow incorpora-tion by reference in this type of situation would contravene thestatute, as the extrinsic document becomes part of the will andwould be valid only if wholly in the handwriting of the testator.Since Sharp v. Wallace26 was decided in 1886, the acceptedrule in Kentucky has been that an unattested codicil, althoughwholly in the handwriting of the testator, cannot bring into opera-tion as a will a paper which is neither in the handwriting of thetestator nor attested, as required by statute. The position of theKentucky court has been based on the theory that since the non-holographic instrument is not attested nor in the handwriting ofthe testator and since that portion and the codicil together makerather than in a class by themselves". In the other ten states, including Kentucky,holographic wills are a distinct type of will. All nineteen states require the holo-graphic will to be wholly in the handwriting of the testator. 14 IowA L. REv. 1,25 (1928).2'78 Cal. 477, 21 Pac. 8 (1889).S110 Miss. 826, 71 So. 4 (1916).83 Ky. 584 (1886). See also, Blankenship v. Blankenship, 276 Ky. 707, 124S.W. 2d 1060 (1939); Adams Exr. v. Beaumont, 226 Ky. 311, 10 S.W. 2d 1106(1928).NoTmS A Coumn~irsup one will, it must be wholly in the handwriting of the testatorto satisfy the statutory requirement."In the recent case of Scott v. Gastright28 the Kentucky courtreaffirmed this position. In that case the testatrix wrote andsigned a memorandum which stated, "The will I dictated to H.Schear Atty, but did not sign is my last will and as I wish it."The court denying probate of both instruments stated: "Neitherof the two instruments which are sought to be probated as a willin this case was acknowledged before, or signed by subscribingwitnesses. On the other hand, the two instruments were notwholly written by Mrs. Gastright. Such being the case, these in-struments taken together do not fulfill the requirements of thestatute .... 29 Although the Kentucky court has followed a strictrule in this type case, it does allow an attested instrument to in-corporate a non-holographic document by reference and becomea part of the testamentary disposition.3 0The leading writers in the field of Wills are also in conflict asto whether an holographic instrument should incorporate a non-holographic instrument. Professor Atkinson 3' states that the doc-trine of incorporation is as applicable to holographic as to ordi-nary wills. It is his opinion that the sounder view is that even ifthe extrinsic document sought to be incorporated is not writtenby the testator it can nevertheless be incorporated by a holo-graphic will. Professor Mechem 32 in discussing the rule of theSharp case concluded that it was sound from the standpoint ofanalysis as well as from the standpoint of providing a tolerableand working rule. In Page on Wills33 the rule is stated as follows:The holographic will is an apparent, though not a real,exception to the general rule that a codicil, if properlyexecuted, revives a prior will. Since a holographic willmust be entirely in the handwriting of the testator, a holo-- Ky. REv. STAT. See. 894.040 provides that no will shall be valid unless it isin writing with the name of the testator subscribed thereto by himself. If thewill is not wholly written by the testator, the subscription shall be made on thewill acknowledged by him in the presence of at least two credible witnesses.805 Ky. 840, 204 S.W. 2d 867 (1947).Id. at 842.Daniel v. Tyler's Estate, supra note 20.Atkinson, op. cit., supra note 20, at 892."Mechem, The Integration of Holographic Wills, 12 N. CAR. L. REv. 213,229, 280 (1934).12 PACE, WiuLs 14 (1941).KENTUCY LAW JoURNALgraphic codicil, which is not attested, does not republisha prior will which is not entirely in the handwriting ofthe testator ...It has been argued that, by analogy to the doctrine of in-corporation by reference of unattested documents into attestedcodicils, it follows logically that the doctrine should apply to holo-graphic codicils.3 4 Further, since there is no statutory authoriza-tion for incorporation by reference either in attested wills or holo-graphic wills then there should be no bar to allow either to in-corporate.35 It has also been urged that a testator should be ableto do by holographic will whatever he could do by an attestedwill in a jurisdiction where holographic wills are validated gen-erally by statutes.3 6Although the present state of the law is in conflict on thismatter, it is submitted that the rule followed by the courts inKentucky and Mississippi represents the better view. Althoughan attested document can incorporate an unattested instrument,it does not necessarily follow that an unattested written instru-ment can incorporate another document that has not been writ-ten by the testator. In the former instance, the testator by havingthe incorporating document attested has declared that the ex-trinsic papers are his will, or at least his act. Thus, he has removedany doubt as to his intention to incorporate an extrinsic documentand any doubts of fraud. On the other hand, where the testatormerely writes a codicil in his own handwriting and it attempts toincorporate an instrument that he did not write or any purportedwill invalid for want of proper execution, there is even less assur-ance that he prepared the extrinsic instrument attempted to beprobated, assented to its contents, or that he did it under his ownfree will. If the extrinsic document is in the handwriting of thetestator, the authenticity of the testator's intention is manifestedby his own handwriting. To hold otherwise, will permit a writingwhich is not entirely in the handwriting of the testator to be ad-mitted to probate without any attestation.The statute prescribing the manner of executing a will wasdesigned not only to lessen the opportunity for imposition and- 16 TENN. L. Rgv. 741, 745 (1941). See also 57 Am. Jutn. 434 (1948).' Supra note 23. See also 1 RussEr.L AND Mmunr-, KEmUcKY PROBATE PRAc-TicE 333 (1955).' Supra note 10, at 434.NoTEs AND ComMENTs 137fraud but also to insure that a testator would be clearly cognizantof the testamentary dispositions he was then making. The re-quirement that a will be wholly written by the testator makescertain that he was expressing what he intended. On the otherhand, the requirement of attesting witnesses attaches to the testa-mentary act a certain formality which insures that the testator hadread and understood the writing prepared by another as beinghis last will and testament.JAMEs LEviN

Holographic Codicils Incorporating by Reference and Republishing Invalid Non-Holographic Documents

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Holographic Codicils Incorporating by Reference and Republishing Invalid Non-Holographic Documents

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