THE POLYCODICILLIC WILL
“She bequeaths, she repeats, she recalls a donation,
And ends by revoking her own revocation;
Still scribbling or scratching some new codicil,
Oh! success to the woman who makes her own will.”
“ANCIENT, CURIOUS, AND FAMOUS WILLS.”
In preceding papers examples have been given of wills delayed till the
eleventh hour: but to some the making of wills and codicils becomes,
at times, a hobby, if not an obsession. “What is a poor woman with no
family to do? Affection for nieces must fluctuate.” “You can always
make a codicil,” answered the lawyer, in the “Light Side of the Law.”
Changes and counter-changes in wills have not been neglected by writers
as a source of literary material. Revocations made in anger or in sheer
vacillation of mind are excellent bases for tales of adventure or love.
The title of this essay has been taken from a passage in R. C.
Trevelyan’s operatic fable “Sisyphus.” The king Sisyphus is dying, but
there is still a fear that he may revive sufficiently to tamper with
his testamentary writings. Even now his last will may be annulled.
_Chorus._ “Hush! Beware! Beware!
But now his thin lips stirred.
Have a care!
He liveth still.
Speak no rash word,
Lest ye be overheard,
And your expectations crossed,
When he alters a tenth time to your cost,
With a last bitter codicil,
His nine-times-altered will.
_Sisyphus._ ‘My wife, my sons, draw near my bed, for I
Once more would speak with you before I die,
Where is my lawyer? Let him fetch my will.
I wish to add another codicil.’
_Chorus._ Another codicil!
Another still
To his polycodicillic will!
Ah! what may this portend?
’Tis the tenth he hath penned.
Soon may death seal an end.”
To discover the real wishes and intentions of a testator is often a
difficult matter, when, in addition to an already voluminous will,
codicil after codicil is added, clause after clause revoked. At a first
reading wrong impressions may easily be taken and bitter disappointment
caused. Only those who have handled such documents can realise the
confusion which may arise by the indiscreet addition of codicils. It
often happens, too, that while the will is legally and carefully drawn
and attested, the codicils are carelessly and inadequately framed.
Among the Romans there was an informal will called _codicillus_, but
the English codicil requires as strict formality as the will. It is
wiser to start afresh.
Anne Judith Bristow, in 1784, at the age of 76, saw the necessity of
adjusting her will to events. It is translated from the French. “This
is the sixth will which I have made since the year 1776, some changes
having happened which made me strike out and obliterate, without,
however, writing it wholly again: this I hope will be the last, for I
have completed the age of 76 years. I every day expect death. I dread
dotage still more. Therefore, without losing time, here is that which I
wish to be carried into execution at my decease.” She lived four more
years, and the changes and chances of her mortal life were such that
she had, after all, to make two codicils, in the first of which, dated
19th of July, 1788, we learn that a daughter mentioned in the will was
now dead. The second codicil was dated September 7, 1788. Soon after
that she must have died, for on January 26, 1789, the will and codicils
were proved.
A curious case was brought before the court not long ago, in which
there were many wills, and the validity of a will made forty-four
years before the death of the testator was upheld. It was the case of
a lunatic, who, during the period of his lunacy made six wills, none
of which (as being those of a person of unsound mind) had any force.
The deceased, not being of a dangerous disposition, had some liberty,
and availed himself of his opportunities to deposit wills at Somerset
House. Depositories for the wills of the living are provided under the
Wills Act of 1837: and there they were by him solemnly placed, and the
Registrar’s receipt was duly given. Other testamentary documents were
deposited elsewhere. The making of wills seems certainly with him to
have been an obsession. It is strange to think that it was necessary
to go back forty-four years to find a valid will, and that for all
the latter part of his life he was, as it were, non-existent. But how
narrow is the line which distinguishes the sound from the unsound mind
is shown by innumerable actions in the Probate Court! It was not for
nothing that in olden days testators affirmed their sanity and thanked
God for it.
A good instance of an ordinary polycodicillic will is that of Margaret
Evans, who, during the ten years from 1775 to 1785, made a will with
twelve codicils annexed. Each codicil she introduces as a “memorandam
[_sic_] by way of addition” to her will. But as an instance of
something more than ordinary it would be hard to surpass the wills and
testamentary papers, proved in 1760 and 1761, of Dr. Thomas Cheyney,
Dean of Winchester. These papers range in date from 1724 to 1759, a
nightmare, doubtless, to his luckless executors and friends.
The irony of this case is that the Dean wished his affairs to be
administered privately. “I desire my three executors, as far as
practicable, to keep all or any resolutions they shall take relating
to my affairs secret among themselves, as I design and desire in all
things they may remain accountable to their own consciences and to each
other, and not to any other person in any place whatsoever.” But such
was the chaos of documents that it was necessary to take the directions
of a Court of Equity, the executors stating that they “from the
multiplicity of the said papers, and the contents of the same, find it
impracticable for them to administer and transact the said testator’s
affairs with that privacy and secrecy, as he seems by the general
tenor of his said will and codicil to have designed, ... and that it
will be necessary for them to take the directions of a Court of Equity
concerning the same.”
It is impossible to give a just idea of these documents, covering a
period of thirty-five years of changeful life. He is constantly putting
on patches, until the whole becomes a piece of motley. He seems to have
expected death more than once. The first paper, dated 13th of April,
1724, begins: “I Thomas Cheyney, fellow of the College near Winchester,
being by God’s will at this time of a sound mind, though labouring
under great bodily infirmities, which daily call upon me to remember
my latter end, have ... wrote this my last will and testament.” The
second paper, dated November 3rd of the same year, is addressed to his
mother. “Hond. Madam, As I have by will given the greatest part of my
estate entirely into your disposal (being desirous you should enjoy it
and be made as happy as possible while in this world) I make no doubt
but, if you survive me, you will as well out of regard to justice as
my request immediately after my death make a will, and therein take
effectual care of what I here recommend to you.... This I have writ in
haste to supply the defects of my will now made, in case I die before I
make a new one, which I intend in a few months when my affairs will be
better settled, if it please God to spare me so long.” The fourth paper
is dated June 5, 1732, and begins, “Now about to go to London, in case
I never return.”
But the last papers, which he regarded as his real will and codicil,
were made when death was not far from him, on July 4 and 6, 1759.
The will begins: “I Thomas Cheyney, Dean of the Cathedral Church of
Winchester, being now of sound mind and not forgetful of my mortality
do make and declare this to be my last will and testament, hereby
revoking all other wills formerly by me made, which however are not
destroyed, because they may, though of no validity in law, be of some
use to my executors. And first I recommend into Thy hands, Almighty and
Everlasting God, my immortal soul, beseeching Thee in all changes to
keep it close unto Thyself, and that I may in the day of Judgment find
such mercy as I shall stand in need of, thro’ the merits of a blessed
Redeemer.” It is in the codicil that he desires secrecy, as already
mentioned, and he concludes by desiring his executors to “destroy
unread all such letters as they know or suspect to be of the Duchess of
Devonshire’s writing, and to take all proper care that no other letters
may be divulged.”