652 S.W.2d 663 (Ky. Ct. App. 1983)
Frank Gilbert died testate on June 5, 1979.1 The appellees are a brother of the testator, a niece and three nephews of the testator, and two beneficiaries unrelated to the testator.2 The appellants are the testator’s sisters and remaining brothers.3
Two writings were offered for probate.4 One was an eight-page typewritten instrument prepared by an attorney and dated April 2, 1976.5 The other was the holographic instrument dated December 8, 1978, written on the back of a business card and on the back of one of Frank’s pay stubs, which were found folded together in a sealed envelope.6
The writing on the business card stated that Jim and Margaret had approximately $50,000 in the safe and to see Buzz if anything happens.7 The pay stub directed that Jim and Margaret receive $20,000 with the rest divided equally among the other living surviving brothers and sisters.8 The envelope indicated that on December 8, 1978, the card was given to Jim and Margaret stating what to do.9
Both the typewritten instrument and the holographic instrument were admitted to probate on September 4, 1979, with the holographic instrument being admitted as a codicil.10 Appellants brought a will contest action in the Jefferson Circuit Court.11 They sought to have the holographic instrument interpreted as a second and superseding will rather than a codicil.12
The circuit court held a hearing and entered a judgment construing the second instrument as a codicil affecting only the money Frank kept in his employer’s safe.13 Appellants appealed from that judgment.14 The appeal is before the Court of Appeals of Kentucky.15
Whether the separate holographic writings were admitted to probate by the Jefferson Circuit Court?16
Findings of fact shall not be set aside unless clearly erroneous. CR 52.01.17
The separate holographic writings were admitted to probate by the Jefferson Circuit Court.20
Whether testimony was admitted contrary to KRS 421.210(2), the Dead Man’s Statute?21
When an evidentiary issue arises under the Dead Man’s Statute, the reviewing court may decline to address it if the disputed testimony played no role in the outcome of the case.22
The court did not decide whether testimony was admitted contrary to the Dead Man’s Statute.25
Whether the separate holographic writings should have been construed as a second and superseding will instead of a codicil?26
A testator may have more than one will effective at the same time, each distributing part of the estate.27 Subsequent wills perform the office of codicils when there is no revocation clause and the instrument only distributes part of the residuary estate.28 One testamentary instrument revokes another only if it is the clear intent of the testator to do so, and even then the revocation is only to the extent necessary.29
No. The two holographic writings should be considered as one instrument because they were found folded together in a sealed envelope and are coherent in sense, showing they were tacked together in the mind of the testator.3031 The second instrument is a second will that serves as a codicil because it does not contain a revocation clause and only distributes part of the residuary estate.32 It is very unlikely that Frank intended to supplant the elaborate distribution of his estate contained in the eight-page typewritten will with a single phrase scratched out on the back of a pay stub.33 The only way to give effect to every provision of both instruments is to construe the holographic writings as distributing only the money Frank kept in his employer’s safe.34
The separate holographic writings should not be construed as a second and superseding will instead of a codicil.35