Young v. Williams

116 S.E.2d 778 (1960)

253 N.C. 281

Isobel C. YOUNG, Individually and as Executrix of Baxter Clay Young, v. Charles E. WILLIAMS, Jr., Guardian ad litem of Baxter Craven Young, Minor; and Robert L. Grubb, Guardian ad litem of Mary Laraine Young, Minor.

No. 383.

Supreme Court of North Carolina.

November 2, 1960.

*779 Walser & Brinkley, Lexington, for plaintiff.

Robert L. Grubb, guardian of defendant Mary Laraine Young.

Charles E. Williams, Jr., Lexington, guardian of defendant Baxter Craven Young.

DENNY, Justice.

The question posed for determination is, where a testator makes a will, making his wife the sole beneficiary, and then subsequently has a child born, does a codicil executed by the testator subsequent to the birth of the child constitute a republication of his will?

The overwhelming weight of authority is that a duly executed codicil operates as a republication of the original will and makes it speak from the date of the execution of the codicil insofar as it is not altered or revoked by the codicil. 57 Am.Jur., Wills, Section 626, page 428; 95 C.J.S. Wills § 303, subsections d(1) and e(1), page 99, et seq.

The testator herein was certainly advertent to the existence of both his minor children at the time of the execution of the codicil. It is evident that the sole purpose of the codicil was to provide that, in the event of the joint deaths of himself and his wife in a common disaster, John B. Craven was to be the executor of their respective estates and the guardian of their two children, the minor defendants herein.

In Gooch v. Gooch, 134 Va. 21, 113 S.E. 873, the testator executed a will in 1909, leaving all his property to his wife. At the time he executed his will he had no children, but two children were subsequently born to him and his wife, the first one in 1911 and the second in 1916. The testator executed a codicil to his will in 1919. The Court quoted with approval from one of its earlier decisions, Hatcher v. Hatcher, 80 Va. 169, the following: "The codicil * * operates as a republication of the will, and the effect of the republication is to bring down the will to the date of the codicil, so that both instruments are to be considered as speaking at the same date and taking effect at the same time."

In the case of In re Will of Coffield, 216 N.C. 285, 4 S.E.2d 870, the testator, Gus Coffield, executed a will on 17 May 1938. On 18 May 1938 he married Fannie Coffield. On 20 February 1939 he executed a codicil to his prior will, ratifying and confirming his will dated 17 May 1938 as changed by the codicil. In the codicil he devised certain realty to his wife. It was contended that the original will was revoked by the marriage of the testator after its execution and that there had been no valid re-execution thereof and, therefore, the paper writing purporting to be a will was null and void. This Court said: "We cannot so hold under the authorities in this State, which we think are borne out by reason and logic." The Court further quoted with approval the statement from Murray v. Oliver, 41 N.C. 55: "Whatever doubt was once entertained, it is now unquestionably settled, that adding a codicil is a republication, and the codicil brings the will to it, and makes it a will from the date of the codicil."

However, under the provisions of G.S. § 31-5.5, a will in this jurisdiction is not revoked by the birth of a child to or the adoption of a child by the testator after the execution of the will, but any such afterborn or after-adopted child shall be entitled to such share in the testator's estate as it would be entitled to if the testator had died intestate, unless: "(1) The testator made some provision in the will for the child, whether adequate or not, or (2) It is apparent from the will itself that the testator intentionally *780 did not make specific provision therein for the child."

We hold that the execution of the codicil involved in this action constituted a republication of the testator's will as of 9 November 1949, and the judgment entered below was correct and will be upheld.

Affirmed.