Opinion
No. 70-042 (Supreme Court No. 23091)
Decided February 17, 1970.
Action by grandsons of testatrix who in first codicil amending her will had made legacies to plaintiffs but in second amending codicil had withdrawn these legacies. From a finding by probate court that second codicil revoked first codicil, plaintiffs appealed.
Affirmed
1. WILLS — Revocation — Use of Word — "Revoke". The statute does not require and it is not necessary to specifically use the word "revoke" in a testamentary instrument in order to effectuate a revocation.
2. Revocation — Codicil — By Amendment. A codicil which amends or reamends a prior codicil may constitute a revocation of the amended codicil.
3. Revocation — Express Language — Necessary Implication. A second testamentary instrument may not effectuate the revocation of a former instrument except by express language or by necessary implication arising from express provisions of the later instrument.
Error to the Probate Court of the City and County of Denver, Honorable David Brofman, Judge.
Wagner and Wyers, for plaintiffs in error.
Fuller and Evans, Pierpont Fuller, Mackintosh Brown, for defendant in error.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an appeal from a decision of the Probate Court of the City and County of Denver. The plaintiffs in error, Robert M. Shattuck and Donald M. Shattuck, grandsons of the deceased, were the petitioners in the Probate Court and will here be referred to as petitioners or grandsons. The defendant in error was named individually and as Executrix of the Will.
The issue before this court is whether the second Codicil revoked the first Codicil, thereby cutting the petitioners out as beneficiaries.
The facts are undisputed and there was no testimony presented at the hearing.
Edith S. McKeown, a resident of Denver, died February 16, 1967, leaving a Will dated October 13, 1960, a Codicil dated August 6, 1963, and a second Codicil dated June 22, 1964. All those instruments were admitted to probate without objections subject to the court's determination as to the effect of the first and second Codicils.
The provision of the Will with which we are concerned is as follows:
"FIRST: I direct my Executrix to pay my just debts and the expenses of my last illness and funeral, and to pay, as part of the expenses of administration of my estate, all inheritance, estate, legacy, succession, or other death taxes arising out of or payable by reason of my death."
The first Codicil is herein quoted in full:
"CODICIL TO THE
LAST WILL AND TESTAMENT
OF
EDITH S. MCKEOWN"
"I, EDITH S. MCKEOWN, of Denver, Colorado, do hereby make, publish and declare this as and for a Codicil to my Last Will and Testament, which was dated October 13, A.D. 1960."
"FIRST: I hereby direct that Article First of my said Last Will and Testament shall be amended to read as follows:
"FIRST: I direct my Executrix to pay the expenses of my last illness and funeral, and to pay as a part of the expenses of administration of my said estate all inheritance, estate, legacy, succession or other death taxes arising out of or payable by reason of my death and thereafter I hereby give and bequeath the following sums to the persons named, to-wit:
A. To my grandson, ROBERT M. SHATTUCK, $5,000.00.
B. To my grandson, DONALD M. SHATTUCK, $5,000.00.
C. To my friend, MARJORIE STEPHENSON, (presently associated with the University Library at Tempe, Arizona), $1,000.00."
"SECOND: In all other respects I hereby ratify and confirm my said Last Will and Testament, dated October 13, A.D. 1960."
"IN WITNESS WHEREOF, I have hereunto subscribed my name this 9th day of August, A.D. 1963."
s/ Edith S. McKeown
The second Codicil appears in the following form:
"CODICIL TO THE
LAST WILL AND TESTAMENT
OF
EDITH S. MCKEOWN"
"I, EDITH S. MCKEOWN, of Denver, Colorado, do hereby make, publish and declare this as and for a Codicil to my Last Will and Testament, which was dated October 13, A.D. 1960, and later amended by a Codicil dated August 9, 1963."
"FIRST: I hereby direct that Article First of my said Last Will and Testament as heretofore amended shall again be amended to read, this time, as follows:
`FIRST: I direct that my Executrix pay the expenses of my last illness and funeral, and pay as a part of the expenses of administration of my said estate all inheritance, estate, legacy, succession or other death taxes arising out of or payable by reason of my death and thereafter I hereby give and bequeath the following sum to the person named, to-wit:
A. To my friend, MARJORIE STEPHENSON, (presently associated with the University Library at Tempe, Arizona): the sum of $1,000.00.'
B. The fact that I am making no provision herein for my grandsons, Robert M. Shattuck or Donald M. Shattuck shall not be taken to indicate that I have overlooked their existence or their relationship to me."
"SECOND: In all other respects I hereby ratify and confirm my said Last Will and Testament, dated October 13, A.D. 1960."
"IN WITNESS WHEREOF, I have hereunto subscribed by name this 22nd day of June, A.D. 1964."
s/ Edith S. McKeown
The pertinent parts of the statute (C.R.S. 1963, 153-5-3) are these:
"Revocation of a will. — A will shall be revoked by, and only by, the subsequent marriage of the testator, or by burning, tearing or obliterating the will by the testator himself, or in his presence and by his direction and consent, or by some other will or codicil in writing, or other writing, declaring such revocation, executed, declared and attested as provided in section 153-5-2, * * *"
The Probate Court found that the second Codicil did revoke the first Codicil and that the Will and second Codicil should stand as the Last Will and Testament of the deceased. We concur with this conclusion.
The petitioners argue, among other things, that due to the absence of the word "revoke" or "revocation" in the second Codicil, there has not been a compliance with the statutory requirements for the effective revocation of the first Codicil. Therefore, they are entitled to their bequest set forth in the first Codicil.
[1,2] The statute does not specifically require that the word "revoke" appear in the instrument. We agree with the Probate Court's ruling that the use of the word "revocation" or "revoke" is not necessary, that if the Codicil amends and re-amends as is done here, the effect is to remove Article First as it appeared in the Will. The first Codicil removed Article First of the Will and substituted a new First Article. The second Codicil then removed the amended First Article and substituted a completely new First Article.
It is noted that petitioners contend that the first Codicil which gives them a $5,000 bequest is an effective revocation of the First Article of the Will, yet this first Codicil uses the word "amend" and the word "revoke." Then petitioners contend the second Codicil is not an effective revocation of the first Codicil though it also uses the word "amend" and not the word "revoke." They are saying the word "amend" is sufficient to give, but not sufficient to take away.
The clarity of the revocation of the first Codicil is further fortified by Paragraph B of the second Codicil which specifically states that no provision is made for the grandsons and this "shall not be taken to indicate that I have overlooked their existence or their relationship to me."
The Supreme Court has stated in the case of In re Estate of Lehmer, 144 Colo. 477, 357 P.2d 89, that:
"While in certain cases it is possible to construe a second testamentary instrument as revoking a former, or as revoking certain bequests, or devises thereof, the second instrument may not effectuate the revocation of the former except by express language, or by necessary implication arising from express provisions of the later instrument."
We find that the second Codicil revoked the first Codicil not only by clear express language, but also by necessary implication arising from express provisions of the second Codicil.
Judgment affirmed.
JUDGE DWYER and JUDGE DUFFORD concur.