A DISPUTED CODICIL

Otago Daily Times, Issue 18757, 10 January 1923, Page 8

A DISPUTED CODICIL

SUPREME COURT JUDGMENT. In tho Supremo Court on September 21, before Mr Justice Hosking, Lilian Annie Maud Brown, beneficiary under the will of her husband, the late Thomas Brown, took action against the Trustees, Executors, and Agency Co. and William Jeffrey, as executors, to decide whether a codicil to this will was revoked by a subsequent codicil or not. Mr Solomon, K.C., with Mr Barrowclough, appeared for the plaintiff, Mr H. Cook for tho Trustees, Executors, and Agency Company, and Mr E. J. Smith for tho residuary legatees. Tho question at issue was one of intention, and a pure question of law of a highly technical character. In the course of his judgment, which was given yesterday morning, Mr Justice Hosking states: —“A certain amount of delay has occurred in my giving judgment in this matter, not from any difficulty I havo felt in arriving at a conclusion, but from want of opportunity to write the judgment. The testator, Thomas Brown, died on June 9, 1919, and a will dated Juno 10, 1916, and two codicils dated respectively April 5, 1917, and December 7, 1018, were propounded by the executors as containing the whole of bis testamentary dispositions, and probate thereof was granted by this court on June 16, 1919. In this action tho plaintiff propounds a document dated November 8, 1916, as also containing part of the testator’s testamentary dispositions, and the question is whether it is so and whether, therefore, it also should be admitted to proof. The document in question is headed as a codicil to the will of tho testator and is duly executed as a codicil. At tho date of it tho testator was temporarily staying in Auckland, and, being about to undergo a severe operation, ho had. tho document prepared by solicitors there. The two codicils which havo been admitted to probate were subsequently prepared by tho testator’s own solicitor in Dunedin, and are described as the first and second codicils to his will dated June 10, 1916. They take no notice of the existence or contents of the document prepared in Auckland, although it had been procured from Auckland only a day or so before instructions for the first codicil of April 5, 1917, were received, and although it was in tho hands of the solicitor and was read and discussed by him with the testator at tho time of receiving those instructions. There is no express revocation of the Auckland document contained in either of the codicils referred to, but it is contended in opposition to that document being admitted to proof that the terms of the codicils are so inconsistent with the contents and continued existence of tho Auckland document that the Auckland document is implicitly revoked. The question is whether it is a proper deduction from the terms of the two later codicils that the testator intended to supersede the Auckland document as part of his testamentary dispositions. In my opinion this is the proper deduction to be made. By his will, shortly stating the relevant provisions, he gave to his wife absolutely all the household furniture, silver and silver-plate, and all the linen, china, glass, books, pictures, prints, and musical instruments, and all other articles of household or domestic use or ornament, and all wines, provisions, and other household effects, and algo any horses, carriages, motorcar or cars, and all garden tools, implements, furnishings, and appliances which might belong to him at his death excepting a certain marble bust and subject to a right for the trustees of the Dunedin Art Gallery to select four of his pictures. He also gave to his wife absolutely all his jewellery, ornaments, and personal effects, and an immediate legacy of £IOOO. He further gave her the use and occupation of his residence known as ‘Broomlands’ during widowhood, subject to tho condition that she pnjd- all rates, taxes, and outgoings in connection with it and kept the premises in repair and insured against fire. Ho further sot aside a sum of £15,000, of which she was to have tho income during widowhood a provision to be reduced to the income of £6OOO if she re-married. He gave the bust and four pictures to the trustees of the Dunedin Art Gallery. By tho Auckland document ho revoked ‘the gift in his said will of statuary and pictures to the Dunedin Art Gallery, and declared that, in addition’ to all other gifts or benefits by his will given to Ins wife, he gave to her 1000 ordinary shares in Brown, Ewing, and Company (Ltd.). And also ’all his household furniture, pictures, plate, silver, statuary, books, and effects for her own absolute use.’ He further gave to her ‘the free use of hia house and grounds known as “Broomlands” for the term of five years from his death clear of all rent, rates, and taxes, insurance, repairs and other outgoings, which e declared should be borne by his estate.’ It will be apparent from this document that while tho teslator gave his wife, as additional benefits, the 1000 shares and the previously-excepted statuary and pictures, the household effects, and other chattels were not so comprehensively bequeathed as by tho will, and that ho cut down the wife’s right to use and occupy ‘Broomlands’ to five although during that period hs exonerated her from tho liability to rates, outgoings, repairs, and insurance. I now come to the subsequent codicil of April 5,, 1917. It is headed ‘This is a codicil (tho first) to my will dated! June 10, 1916.’ It recites that the testator is desirous of making additions to and of altering and amending his said will in certain particulars. Then he proceeds; ‘Now I hereby direct and declare that the additions, alterations, modifications, and amendments hereinafter expressed shall be deemed to be incorporated in and to form part of my said will, and that my said will shall ho read and construed and shall take effect in all respects with and subject to such additions, alterations, modifications, and amendments, that is to say;’ Then ho proceeds to make his altered dispositions. After these, ho adds, ‘I confirm my said will in all respects as altered by tho additions, alterations, modifications, and amendments contained in this codicil.’ Then in botli tho testimonium and attestation the document is again referred to as the first codicil to his said will. Now we know as a relevant fact that at the time he gave his instructions for this codicil, some three days before ho executed it, the' testator and his solicitor had the Auckland document in their hands and read and considered it. Construing the language of the codicil in the light of this fact, I ask whether the language does not prima facie emphatically supersede the Auckland document as a testamentary disposition? Then the will is revived by the confirmation contained in the codicil, as altered by the additions, alterations, modifications, and amendments contained in tho codicil. The second codicil is couched in a similar form. It is called ‘codicil (the second) to the will dated the 10th day of June.’ It recites the testator’s desire to make further additions io his said will and of altering and amending tho same in certain further and other particulars. It contains a similar declaration as to its incorporation with the said will, and that tho said will and. first codicil are to he read, contrued, and have effect subject to the alterations made by the second codicil. The said will and first codicil are confirmed as altered and amended by the second codicil and the testimonium and attestation to the document describe it as a second codicil to tho said will The intention to supersede tho Auckland document is also to be deduced from the dispositions contained! in the two codicils. By the first codicil there is no repetition of tho gift of furniture and effects, but tho wife is to be at liberty so long ns she occupies ‘Broomlands’ to retain possession of the marble bust ‘which in ray said will I havo bequeathed to the Trustees of the Dunedin Art Gallery,’ and also to retain the possession so long as she shall think fit of “all or any of the four pictures which may bo selected by the said trustees under the right of selection conferred on them by tho said will.’ This language clearly assumes that the gift of the bust and pictures to the trustees of tho Art Gallery is still in force under the will as originally drawn, although if tho Auckland document be taken into account these gifts had been revoked, and the bust and pictures made tho absolute property of the wife. One cannot understand! how this assumption could be made except upon the footing that the Auckland document was to bo ignored. The Auckland document cut down the right of the wife to occupy ‘Broomlands’ to live years. No exprees revocation of this provision is contained in the codicil, but it will” that tho wife, whilst she shall have ‘revokes tho condition in clauses 4 of tho said the use of ‘Broomlands,’ shall pay tho rates, taxes, and outgoings and repair and insure, and lie directed his trustees to permit Iris wife to have such use during widowhood free of all costs and charges whatsoever. This provision may be said incidentally to give her the use during Widowhood and to restore tho status quo, but it is obvious from tho reference to the recited condition as being in clau.se - i’nat the prior part of clause 4 whicn conferred tho right on tho wife during widowhood was tested ns subsisting in all its integrity which would not bo the case if tho Auckland document was to stand, and it is also obvious that the object of the codicil was not to give her an interest during widowhood, but to reverse the condition so as to give to her free from that condition, the use which tho earlier part of clause 4 had provided for. Tho codicil further provided for a sum of money being set aside

out of residue to answer the rates, taxes, and outgoings, and the cost of and insurance, thus ignoring, and in my opinion superseding, the general charge on the testator's estate which tho Auckland document created for those purposes. He further gave his wife certain life insurance moneys and raised the fund of £15,000 referred to in the will to £20,C00. Tho dispositions in the sseond codicil confirm tho view us to the supercession of the Auckland document. J->y the second codicil he directed that GObO ordinary shares in Brown, Hwing, and Co. (Ltd.) should be set aside and tho income thereof paid to his wife during widowhood. And he declared that this provision for Ins said wife ‘was in addition to the provision already made for her by his said will aud the said first codicil thereto.’ No mention is made of the provision as being in addition to that already made by the Auckland document which in such a carcfuly drawn document as tho second codicil one would have expected if the Auckland document was intended to remain in force. Tho only X )ro ’ vision lie recognica as already made for her are those in tho will and the said firet codicil. Ho next reverses tho terms on which ‘Broomlands’ is to be occupied. His language is, *T confirm the direction contained in my said will to permit ray wife to have the use ... of “Broomlands , . . for her life if she remains my widow, but I direct that so long as my said shall avail herself of tho right to use the said residence’ she shall pay all _ rates, taxes, and outgoings, and repair and insure. Then ho proceeds, ”1 revoke the direction in the first codicil that tho ueo of the said residence shall be free of costs and charges, but with power to the trustees to make outlay in certain specitdod repairs, renewals, And improvements. He evidently regarded .the additional income he provided, by tho second codicil would compensate for the outgoings, the incidence of which ho thereby restored as an obligation of tho wife. These provisions which 1 have cited from both codicils appear to me to be consistent only with an intention on the part of tho testator that the Auckland! document should be superseded and not form part of his testamentary dispositions. Tho cases ehow that the circumstance that a document is described as a last will does not of itself prevent the letting in of additional testamentary documents which may bo inconsistent with the description of tho former document as tho last will, but which, it is obvious, must bo construed as testamentary and probably the description of a codicil as a first codicil would not exclude an earlier codicil if the circumstances showed that the earlier codicil was not superseded. The description of a document as the last will is not conclusive, but it is a circumstance to be taken into consideration, £AncH the same observation, in my opinion, applies in the case of a document described as a first or second codicil. But in tho present case I regard tho omphalic declaration to tho documents being the first and second codicils coupled with the other circumstances of the cuso as ; determinative of any doubt that might exist if the other circumstances alone were to be considered. The other circumstances to which I refer are those which I have discussed—namely, (1) tho tenor of the dispositions contained in the two codicils; (2) the express declarations that the alterations made by the specified codicils are to be dbemed to bo incorporated in the will; (3) the confirmation of tho will (identifying it by date) subject to the specified codicils; (4; the fact that at the time the first codicil was prepared the Auckland document was before the testator and lids solicitor. For these reasons I hold that the first and second codicils were intended exclusively to contain all the alterations tho testator desired to make in *his will as originally executed, and that tho Auckland document was revoked. Tho action must therefore be dismissed. On the authority-of tho cases cited in Mortimer on Probate Law, at p. 837, I consider that tho plaintiff is entitled to coats out of the estate. These will bo according to scale as if £IOOO had been claimed. The trustees will be entitled to have their costs, charges, and expenses out of the estate, and Mr John Brown is to havo his costs, to be taxed by the registrar at Dunedin, as between solicitor and client paid out of the estate.”