Montgomery v. Chapman

[372]

CRAIG, J.

This case comes before us upon a stipulated record. The trial court decreed that the codicil of April 12, . 1921, was inoperative and of no effect, and ordered the issuance of letters testamentary to Union Trust Company and respondent Chapman, which was according to the direction of the testatrix, as stated in the will. The codicil was dated the same day as the will. It is admitted that it was holographic, and that it provided as follows: “I hereby make this codicil to my last will and testament April 12th, 1921. In consequence of the death of M. C. Chapman named as Executor and Trustee under said will, I hereby nominate, appoint and substitute John R. Montgomery in his Place and Stead as such Executor and Trustee, with the same power and authority by me conferred in my said Will upon M. C. Chapman as such Executor and Trustee and likewise without bonds.” “Elizabeth Churchill Spalding.”

The parties stipulated that upon the hearing for probate of the will and codicils the trial court took no evidence, and that none was offered, in support of the finding that the codicil above quoted was inoperative and of no effect, except to show that Chapman was alive at the time the first codicil was made and was one of the petitioners for the probate of the will. The findings recite, in part, as follows: “The court further finds that both M. C. Chapman and John R. Montgomery were alive at the time of the making of each of the said instruments, and are alive at this time; that each is competent to act as executor or trustee, and that each consents to act as such. The evidence, however, that M. C. Chapman was alive when said instruments were executed was received over the objection of counsel for John R. Montgomery that such evidence was irrelevant, incompetent and immaterial, and an attempt to vary the terms of the will of said decedent.

“It is therefore ordered, adjudged and decreed that said instruments are and constitute the last will and testament of said decedent, and that the same be, and hereby are, admitted to probate as the last will and testament of said decedent, but that the holographic codicil dated April 12th, 1921, is inoperative and of no effect upon the ground and for the reason, solely and not otherwise, that said M. C. Chapman therein mentioned was, upon the date said codicil was made, and still is, living, and one of the petitioners