CODICIL. Some addition to, or qualifica tion of, a last will and testament.
This term is derived from the Latin codicillus, which is a diminutive of codex, and in strictness imports a little code or wrlting,—a little will. In the Roman Civil Law, codicil was defined ae an act which contains dispositions of property in prospect of death, without the institution of an heir or ex ecutor. Domat, Civil Law, p. ii. b. iv. tit. 1. a. 1; Just. De Codic. art. 1. e. 2. So, also, the early Eng lish writers upon wills define a codicil 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." Swinb.' Wills, pt. 1. s. 5, pl. 2. But the present defi nition of the term is that, first given. 1 Witte, Exrs. 8; Swinb. Willa, pt. 1. a. v. pl. 5.
Under the Roman Civil Law, and also by the early English law, as well as the canon law, all of which very nearly coincided in regard to this subject, it was considered that no one could make a valid will or testament unless he did name an executor, as that was of the essence of the act. Thie was at tended with great formality and solemnity, in the presence of seven Roman citizens as witnesses, omni exceptione majores. Hence a codicil ie there termed an unofficious, or unsolemn, testament, Swinb. Wills, pt. i. e. v. pl. 4; Godolph, pt. i. c. 1, e. 2; id, pt. i. c. 6, e. 2; Plowd. 185; where it is said by the judges, that "without an executor a will ie null and void," which has 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 tes tament, as it was then called). Codicils were strict ly confined to the disposition of property; whereas a testament had reference to the institution of an heir or executor, and. contained trusts and con fidences to be carried into effect after the decease of the testator. Domat, b. iv. tit. i.
In the Roman Law there were two kinds of codi cils: the one, where no testament existed, and which was designed to supply its place as to the disposition of property, and which more nearly re sembled our donatio causa mortis than anything 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. Domat, p. 11. b. iv. tit. i. a. i. art. v. It Is
In this last sense that the term is now universally used in the English law, and in 'Lite American states where the common law prevails.
Codicils owe their origin to the following circum stance. , Lucius Lentulus, dying in Africa, left codicils, confirmed by anticipation in a will of for mer date, and in those codicils requested the Em peror Augustus, by way of fidei commissum, or trust, to do something therein expressed. The em peror carried this will into effect, and the daughter of Lentulus paid legacies which she would not oth erwise have been legally bound to pay. Other per sons made similar Mei commissa, and then the em peror, by the advice of learned men whom he con sulted, sanctioned the making of codicils, and thus they became clothed with legal authority. Inst. 3. 25 ; Bowy. Com. 155.
All codicils are part of the will, and are to be so construed; 17 Sim. 108; 16 Beay. 510, 2 Ves. Sen. Ch. 242; 4 Y. & C. Ch. 160; Wilkes v. Harper, 3 Sandf. Ch. (N. Y.) 11; 4 Kent 531. See Gelbke v. Gelbke, 88 Ala. 427, 6 South. 834; Burhans v. Haswell, 43 Barb. (N. Y.) 424; and executed with the same formalities; Schoul. Wills 359; 4 Kent 531; Tilden v. Tilden, 13 Gray (Mass.) 103.
A codicil properly executed to pass 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; Coale v. Smith, 4 Pa. 376; Armstrong v. Armstrong, 14 B. Monr. (Ky.) 333; Brimmer v. Sohier, 1 Cush. (Mass.) 118; 3 M. & C. 359. So also it has 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 republi cation of the will; Kip v. Van Cortland, 7 Hill (N. Y.) 346; Den v. Snowhill, 23 N. J. L. 447; 1 Ves. Sen. 442; Harvy v. Chou teau, 14 Mo. 587, 55 Am. •Dec. 120; but where it is on the same piece of paper, not signed, only the will proper which was sign ed should be admitted to probate; Smith's Estate, 9 Pa. Co. Ct. R. 333; but see Brown's Ex'r v. Tilden, 5 Har. & J. (Md.) 371.