CODICIL. Some addition to, or qualificap tion of, a last will and testament.
This term is derived from the Latin cottioillse, 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 net which contains dispositions of property in prospect of death, without the institution of an heir ear exe cutor. Domat, Civil Law, p. ii. b. iv. tit. i. s. 1; Just. De Codie.nrt. i. e. 2. So, also, the early English writers upon wills define a e. dioil 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." Swinburne, Wills, pt. i. s. v. pl. 2. Bat the present definition of the term is that first given. Williams, Exrs. pt. i. b. i. e. ii. p. 8; Swinburne, Wills, pt. i. s. v. pl. b.
Under the Roman Civil Law, and also by the early' English law, as well as the canon law, 01 of which very nearly coincided in regard to this subject, it was considered that no one could make a valid will or testament unless be did name an executor, as that was of the essence of the act. This was attended with great formality and so. lemnity, in the presence of seven Roman citizens as witnesses, omni exeeptione muforee. Hence a codicil is there termed an unoffieious, or unsolemn, testament. Swinburne Wills, pt. i. s. v. pl. 4; Go. dolph. pt. i. c. 1, s. 2; id. pt. i. c. 6, e. 2; Plowd. 185; where it is said by the judges, that " without an executor a will is null end void," which hag 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 tel. lament, as it was then called). Codicils were strictly confined to the disposition of property; whereas a testament had reference to the instittr tion 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 Civil Law there were two kinds of codicils: the rue, 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 caved mortis then any thing 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. Denial, p. ii. b. iv. tit. i. s. i. art. v. It is in this last sense that the term is now univer sally used in the English law, and in the American states whore the common law prevails.
Codicils owe their origin to the following cir cumstance. 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 wry of jidei or trust, to do something therein expressed. The emperor tarried this will intoeffeet,and The dough
.• ter,of Lentulus paid legacies which-she •would not otherwise have been legally bound to Other • persons made com ntieea, and then the ion • peror, by the advice of learned men whom he con f.eulted, sanctioned the making of codicils, and thus • they became clothed with legal authority,. Inst. 2.
• 25; Bowyer, Comm..155, 156. • 2. All codicils ate part of the will, and • are to be so construed. BroWn, Ch. 55 17. Sim.' Ch.. 108 ; . 16 BeaV Rolls, • 510; Ves." Sen. Ch.. 242; by Lord Hardwicke; 3 107, 110 ; 4 id. ,610 ; 4 Younge,& , C. Ch. 160 , 2 Russ. & M. 117 • Cow: N. 'Y: 56'; 3 Saila Oh. N. Y. ft ; . 4., Kent, Comm. 531. .
A codici• iSioperly executed to peas 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. ,C,Penn. St. 376 ; 4 :Dand, Abr. c. 127,, a.. 1,, a 11, p: 5,50 ;, 14 B. ,Monr..Ky. 333 ; 1 Cush. Mass..118 ; 3 Mylno & C. 359. So also it haw 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 repnblieation Of the will. ,1 Hill, ; 7 40464 .Zabi. N. J.
"447: • 3. 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. 3 Monr. 'Ky. 390 ; 6' johnS:.Ch. N: .Y 374, 375; 14 Pia, Mass. 543- 16 Ves. Ch. 107; 7 'Q. 98; '1 Ad. & E. 421.. :See, also, the numerous cases ,cited by Mr. Perkins, Piggott' v. Walker, 7 'Yes. Ch. Sumner ed. 98; • 1 'Crempt. & M. /Exch. There may be numerous to the, 'same will. In Such cases,,the' later ones .ope rite to and , republish the earlier ones. 3"Bingh. 614 ; 12 J. B. Moore, 2. • • , But in order to set up an informally exe. cuted paper by means of one subsequently executed in due form, referring to such in, tetanal paper,• the reference must be such ai early to identify, the paper,, 4 N. Y. 140.
4. It is, not competent to .provide by will for the disposition of property to such persons i ae shall be named n a codicil, not executed according to the prescribed for finalities in regard to wills; since still of that Character,' in whatever. form, if .intended to Operate only in the aispiisition of one's property after death, . are •of a testa mentary character, and be so treated. 2 Ves. Ch.. 204 ;• 12 id.•29 • 2 Mylne &. K. 765; 1 Ves. & B.' Ch. 422', 445.
' 5. The form of devising by codicil iWabo fished in Louisiana, Code, 1563; and diSpositiOn of the property be made by testament, under. this title, or under that of • institution of heir, of legacy, codicil, dona-' tiO causa, or under any other name indicating the last will, provided it be clothed' With the fOrma required,for the validity.of testament, it ia, so far as form is concerned, to he considered a testament. See 1 Brown:. • Civil Law, 292 ; Denim, Lois Civ: 1. 4, t..1„s. 1; LecOns Element. the Dr. Civ. Rom. 'tit. 25. See WILLS,