First Codicil to the Will of Dr. R.H., M.D. Dated March 20, 1976
(holographic)
Transcriber’s note. The instrument below is rendered from the original handwritten pages. It was never submitted to probate, never construed by any court, and never found among the testator’s estate papers. Strikethroughs and interlineations are reproduced where legible. The hand is confident, hurried in places, and unmistakably the same throughout.
FIRST CODICIL
This First Codicil is dated March 20, 1976. It amends my Last Will and Testament dated the 11th day of February, 1971, which Will I hereby ratify and confirm in all respects except as modified below.
I, R.H., a physician of Tucson, Arizona, being of sound mind and memory, but having this week been given certain information concerning my own health, of a kind I have delivered to other men many times and received badly now that it has been delivered to me, do make this codicil in my own hand, no other hand having any part in it, for reasons the provisions themselves will make plain to anyone with cause to read them, and it is my intention that no one have cause.
I write this myself. I have a lawyer; he prepared the Will above; he is a careful man and he asks careful questions, and the matter I address here will not survive careful questions. It is a small matter. It is the kind of matter a man is wisest to take into his own hand and finish there, quietly, the way most small matters in this life are begun.
WHEREAS, in the course of my practice there was established, under my direction and within my professional corporation, a modest program by which certain donations were obtained from a young colleague, a resident of good health and sound family, for use in the treatment of infertile couples under my care; and
WHEREAS, said donations, two in number, were thereafter divided, under my direction and by hands acting at my instruction, into eight lots, it being my judgment that the material was scarce, the demand steady, and the donor’s understanding of the arithmetic his own affair, each unit being, in the most literal sense, the work of the donor’s own hand and, in every sense that has since come to trouble me, the work of mine; and
WHEREAS, seven of the eight lots have been placed with patients of the practice and the accounts thereon closed, and there remains in the refrigerated cabinet of my office, as of this date, one (1) unit, designated #56JO, being the last; and
WHEREAS, I record here what I would state under oath nowhere: the log has gaps. The division was performed by hands acting at my instruction, on more than one date, alongside other work, and the worksheet was reconciled after the fact rather than during. Unit #56JO is the donor’s material to a near certainty, and I have practiced medicine long enough to know what work the word “near” is doing in that sentence. The label says what it says. I believe the label. A man drafting an instrument of concealment should be sure what he is concealing, and I am not sure, and the provisions below will destroy the only papers by which anyone, myself included, could ever become sure; and
WHEREAS, a patient of the practice, C.S., a married woman of this city whose husband’s condition admits of no other remedy, has completed her preliminary consultations and stands ready to proceed, and it is probable in the ordinary course that unit #56JO will be placed with her within the month; and
WHEREAS, a man who has been told what I have been told this week begins an inventory of everything he holds, and finds on his shelves one item he cannot leave to be found there;
NOW, THEREFORE, I direct as follows:
ITEM ONE. I give, devise, and bequeath unit #56JO, together with all records, logs, ledger entries, and correspondence touching the donation program, to no person, it being my intention that the same never appear in any inventory, schedule, or accounting of my estate, and I acknowledge, being a director of the corporation that holds title, that a codicil is the wrong instrument for this purpose, and I record here that I do not care. The lawyers may sort the title. There will be nothing left to sort.
ITEM TWO. I direct that the placement of unit #56JO with the patient C.S. proceed on the ordinary schedule and the ordinary terms, the fee to be collected in full and posted to the general account of the practice in the ordinary way, nothing about the transaction being permitted to appear extraordinary, because nothing about it is extraordinary, because it is the fifty-sixth entry in a log that reads like a hundred other logs, and the entries before it and after it concern gauze.
ITEM THREE. I direct that upon completion of said placement the log itself be destroyed, together with the donor file, the division worksheet, and the fee reconciliation, and that this destruction be performed by my own hand if I remain able, and if I do not remain able, then by no hand at all, the records to be left instead among my papers as ordinary papers, which is what they will appear to be, and which is the better concealment anyway, for a burned file confesses and a filed one merely waits.
ITEM FOUR. As to the donor: he was paid. He was paid the agreed sum for the agreed donations, twice, and what was done thereafter with the material was done under my direction and on my judgment, and the profit of the division, seven placements beyond what he contemplated, and now an eighth, was the practice’s profit, which is to say mine. I record that he does not know. I record that there is no provision of this codicil, and no provision I know how to write, that makes him know. I have tried, in the drafting of this item, to compose the sentence that would repair it, and I report that the sentence does not exist in the form of a testamentary instrument, and I have elected to finish the codicil rather than the sentence.
I will record one thing more under this item, because it belongs nowhere else and I will not write it twice. There is a colleague in this city whose program resembles mine in every outward particular and differs in one. His program has no donor. Or rather it has exactly one, always available, never paid, whose consent is perfect and perpetual, and whose inventory cannot be mislabeled, because every unit on his shelf has the same source and the label could say anything at all. His method solves at a stroke the two defects this instrument exists to bury, the consent I exceeded and the log I cannot trust, and I have thought about his method more this week than I care to record. I chose the resident. I paid for the material and divided it too many times and kept the log badly, and his shelf is in perfect order, and I believed mine was the scrupulous practice, and I find tonight that I can no longer reconstruct the reasoning.
ITEM FIVE. As to unit #56JO itself. I have sat at this desk longer over this item than over the rest of the instrument entire. A testator is taught, if he is taught anything, to describe his property with precision, and I find I cannot hold the description steady in either of the two ways a description must hold: what the thing is, and whose. It is a unit. It is the last unit. It is, to a near certainty, the donor’s, per a label I wrote or caused to be written and now merely believe. It is inventory of a professional corporation, scheduled, numbered, and priced, and in roughly two weeks’ time, if C.S. keeps her appointment, it will be ~~a~~ ~~someone~~ placed, and the account will be closed, and the program will have ended, and whoever ~~he~~ ~~results~~ whatever results will result under another man’s name, in another man’s house, and will owe nothing to this office and nothing to me and will never, if the provisions of this codicil are respected, learn that this office existed, or wonder, as I have wondered this week for the first time, whether the office itself knew what it was dispensing. I have restored the word “whatever” above because it is the correct word for a schedule of assets, and this is a schedule of assets, and a man who has been handed his mortality on a lab slip does not have the luxury of drafting in two vocabularies at once. The property is described, as well as it will ever be described by anyone. Let it pass.
ITEM SIX. I have chosen the codicil for this business deliberately. A will, I have seen with my own patients’ families, is read, filed, contested, and printed in the paper; it becomes the public’s document the day it is proved. But a codicil, as I understand the matter, is a private supplement, a physician’s addendum to the chart, mine to keep apart, and by reducing these instructions to codicil form I intend that they remain between me and this page and never become any part of any public record, which would be ruinous for all concerned: the donor, the patients, the practice, and whatever I was unable to describe in Item Five. I further direct that this codicil be kept with my personal papers and not with the Will, and that it never be offered for probate, an instruction I am aware no law obliges anyone to honor, and which I secure by the only means available to a careful man, which is that no one knows to look. An instrument no one probates fails. I am relying on its failure. I have spent a career watching men try to control matters from beyond their own competence, and I now join them, in my own hand, with my eyes open: every item above is void, and every item above will be carried out, because the acts are already in motion and the silence is already the practice’s custom, and the law was never going to be the thing that either stopped this or preserved it. Paper does not hold what I am trying to hold. I write it down anyway. That is what a hand is for.
IN WITNESS WHEREOF I have signed this First Codicil, every word of it in my own hand, no witness present, none invited, this 20th day of March, 1976, at Tucson, Arizona.
R.H., M.D.
Transcriber’s note, continued. The testator’s health resolved favorably; he practiced for many years thereafter. The Will of February 11, 1971 was in due course probated. This codicil was not offered with it. On one point of law the testator should be corrected, since he cannot now correct himself: a codicil becomes part of the will it modifies. It is proved, filed, and published on identical terms, and a custodian who finds one after death is obliged by statute to deliver it to the court. The form he chose for privacy is the one class of private paper the law is constructed to surface. His secret survived not because of the instrument but because of its concealment; had any dutiful hand found these pages in 1976, or 1996, every name in them would have entered the public record he feared, this transcription would have been unnecessary, and several lives, the transcriber’s included, would have proceeded on accurate information. Item Two was performed on schedule. Item Three was performed in the second manner described, by no hand at all. Items One, Five, and Six operated exactly as drafted, which is to say not at all, and completely, for forty-three years. The label was correct. Before verification, and while still ignorant of the label and of himself as its object, the unit represented the testator and his wife in their estate planning, and later assisted the testator’s surviving spouse in the legal aftermath of his death. Verification arrived in 2019, by a method the testator did not live to see and could not have imagined, performed by the unit.
Provenance of this exhibit: the ordinary papers of Item Three waited as drafted, and in due course were delivered where old files go when no hand remains to mind them; they are found today among the effects of the subject matter.