“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. [pg 107]
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 [pg 108] 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 [pg 109] 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. [pg 110]
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. [pg 111] “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 [pg 112] 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.”
