The plaintiff claims title to a portion of the insurance money by. virtue' of the alleged codicil to the will of Jones Spencer. The record contains no evidence that the letter offered as a codicil was ever duly probated in any court having jurisdiction, and if it was so probated, it is -admitted in the record that it was done some time after the probate of the will, and without any notice to the executrix.
Revisal, sec. 3123, provides: “If no executor apply to have the will proved within sixty days after the death of the testator,’ any devisee or legatee named in the will, or any other person interested in the estate, may make such application upon ten days notice thereof to the executor.”
A codicil is a supplement or an addition to a will made by the testator, and to be taken as a part 'of the testament, and so intended by him at the time of making it.
The formalities to be observed in the execution of wills and codicils and the methods of probating them are for the most part governed by statutory enactments, but it is generally agreed that a codicil must be executed with the same formalities as a will, and the requirements of the statute must be strictly observed. 6 Am. and Eng., 176.
We think the provisions of section 3123 apply to the production and probate of codicils as much so as to the original will, for to be a codicil it must be testamentary in form and intended by the testator to form a part of his testamentary dispositions.
The wisdom of the statute and the cogent reasons for making-it applicable to codicils are illustrated here. In this ease the will of J. M. Spencer had been probated, the executrix had qual*88ified and executed tbe conveyance to ber codefendant, Gr. Á. Spencer, more than a year before tbe alleged codicil purports to bave been probated, and sbe bad no notice thereof whatever.
"We ag'ree with tbe learned judge of tbe Superior Court that tbe letter in evidence cannot be permitted to operate as a codicil to tbe will dated 17 September, 1903. Tbe distinguishing feature of all genuine testamentary instruments, whatever their form, is that tbe paper-writing must appear to be written animo testcmdi.
It is essential that it should appear from tbe character of tbe instrument, and tbe circumstances under which it is made, that tbe testator intended it should operate as bis will, or as a codicil to it.
In tbe case at bar tbe testator bad made bis will in New York City on tbe eve of bis departure for a European trip. This so-called codicil is a letter written to bis brother immediately after be bad executed bis will, and makes no reference to it. It is scarcely probable that tbe testator regarded or intended such a letter to be in any sense a part of bis will. 1 Redfield on Wills, star p. 174 and notes; St. Johns Lodge, v. Callender, 36 N. C., 335; Simms v. Simms, 27 N. C., 684.
Tbe case of Alston v. Davis, 118 N. C., 203, is relied upon by plaintiffs. We admit that it sustains plaintiffs’ position, but we are unwilling to follow it as a precédent. It is weakened as such by a brief but expressive and forceful dissent, and by ■the further fact that another member of tbe Court took no part in tbe decision.
If tbe letter in question was duly probated in Craven County, as a codicil to tbe will, we doubt if it can be attacked in this •collateral manner. Possibly tbe executor should proceed to have the record and judgment of probate set aside in tbe court where it was made. This point, however, is not made by tbe learned counsel for plaintiff, and, therefore, we bave considered the ease, as it was presented, on its merits.
Tbe third and last contention of tbe defendants appears to us conclusive of this case.
*89Tbe insurance policy in question was tbe property of tbe copartnership, a part of its assets, and was in no sense owned by tbe individual copartners.
Tbe bill of sale, or assignment, dated 6 January, 1904, executed by plaintiff to J. M. and George A. Spencer, conveyed to them all of plaintiff’s interest in tbe firm’s property and assets, including tbe policy, and it became tbe property of tbe firm as a copartnership, ,and not the property of Jones Spencer as an individual.
At tbe date when tbe letter was written, tbe plaintiff owned no part of said policy, as be bad conveyed it to bis two associates.
J. M. Spencer, in using tbe words “your part of tbe $5,000” did not undertake to give bis brother bis (Jones’) part. In fact, Jones Spencer could not convey or bequeath by will bis interest in an isolated and distinct item of tbe partnership property.
It is well settled that a partner cannot transfer bis undivided interest in any specific article belonging to tbe firm (22 A: and E. Ene., page 104) ; and this is so because each partner is possessed per my et per tout; or, in other words, each has a joint interest in tbe whole, but not a separate interest in any particular part of tbe partnership property. 22 A. and E. Enc., page 95; American Digest, Cent. Ed., vol. 33, sec. 143 (c).
It is also held that an action cannot be maintained' on an assignment of tbe interest of one partner in a partnership claim, unsupported by proof of tbe dissolution of tbe firm, or that tbe partner’s interest was entire (30 Oye., 495) ; and that property payable or transferable to others at tbe death of tbe testator may not be disposed of by will. 40 Cyc., 1050.
Tbe judgment of nonsuit is