Simon v. Grayson
1940 Cal. LEXIS 243, 15 Cal. 2d 531, 102 P.2d 1081 (1940)
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Rule of Law:
The execution of a codicil republishes a will as of the date of the codicil. This act can incorporate an extrinsic document by reference that came into existence after the will was executed but before the codicil was executed, provided the will's reference sufficiently identifies the document.
Facts:
- On March 25, 1932, S. M. Seeligsohn executed a will stating he would leave $6,000 to his executors with instructions for payment in a letter dated March 25, 1932.
- On July 3, 1933, Seeligsohn wrote and signed a letter addressed to his executors, directing them to pay $4,000 of the $6,000 to Esther Cohn.
- On November 25, 1933, Seeligsohn executed a codicil to his will which did not mention the letter but reaffirmed the original will as modified.
- In 1935, Seeligsohn died. His safe deposit box contained the will, the codicil, and the letter dated July 3, 1933. No letter dated March 25, 1932, was found.
- Esther Cohn died one week after Seeligsohn's death. Her whereabouts were known to the executors at the time of Seeligsohn's death.
Procedural Posture:
- Esther Cohn's executrix (respondent) filed a claim for the $4,000 mentioned in the testator's letter.
- Residuary legatees under S. M. Seeligsohn's will (appellants) challenged the validity of the bequest in the letter.
- The executors of Seeligsohn's estate filed an interpleader suit in the trial court, asking the court to determine the rightful owner of the funds.
- The trial court, ruling on an agreed statement of facts, entered a judgment in favor of Cohn's executrix.
- The residuary legatees appealed the trial court's judgment.
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Issue:
Does the execution of a codicil to a will incorporate by reference an informal document that was created after the will but before the codicil, even if the will describes the document as having a different date?
Opinions:
Majority - Waste, C. J.
Yes. The execution of a codicil republishes the will, allowing for the incorporation by reference of a document that existed at the time the codicil was executed. The court reasoned that executing a codicil is, in substance, a re-execution of the will as of that new date. Because the letter was in existence when Seeligsohn executed the codicil, the republication of the will satisfied the requirement that an incorporated document must be in existence. Furthermore, the discrepancy in the date was not fatal to the incorporation because other evidence created a 'reasonable certainty' of the letter's identity. Factors providing this certainty included the letter being found with the will, being addressed to the executors, its terms conforming to the will's provisions, and the absence of any other such letter.
Analysis:
This decision solidifies the interplay between two key wills doctrines: incorporation by reference and republication by codicil. It establishes that the 'in existence' requirement for incorporation is tested as of the date of the last testamentary act, which includes a codicil. By adopting a 'reasonable certainty' standard for identifying the incorporated document, the court allows for extrinsic evidence to cure minor descriptive errors, promoting the testator's intent over rigid formalities. This approach provides flexibility but may invite litigation over whether the identification is sufficiently certain in future cases.
