Opinion,
The learned auditor and court below held that the legacy to the appellant oí $20,000 was revoked by the codicil to the testator's will, and that she is only entitled to her share of the residue of the estate. The contention of the appellant is that this ruling is erroneous for the reason that the testator based liis revocation of the legacy on the ground that the facts allеged by him in the codicil were true ; that as the reason for the revocation has failed, the revocation itself falls, and the appellant is entitled to be paid the $20,000. The rule as laid down in thе text books appears to be this: “ And here it may be observed, that, when a testator by a codicil revokes a devise or bequest in his will, or in a previous codicil, expressly grounding such revocation on the assumption of a fact which turns out to be false, the revocation does not take effect, being, it is considered, conditional and dependent on a contingency which fails: ” 1 Jarman on Wills, 357; Powell on Devises, vol. 1, 528; 2 Roberts on Wills, 210; 1 Williams on Executors, 208. The two cases espеcially relied upon by the text writers in support of this proposition are Campbell v. French, 3 Yes. 821, and Doe on the demise Elizabeth Evans v. Henry Evans, 10 Ad. & E. 228. The learned auditor has collected a lаrge number of cases, mostly English, upon this subject, which in the main sustain the text-writers.
The principle referred to may be conceded to be correct when applied to cases in which the falsity or error of the alleged fact rested not in the personal knowledge of the testatоr, but was assumed upon information derived from others; as in the case of Campbell v. French, suprа, where by his will the testator gave legacies to A. and B., describing them as grandchildren of C. and then residing in America. By a codicil he revoked these legacies, giving as a reason that the legatеes were dead. That fact not being true, and being necessarily derived from information of othеr persons, the legatees were held to be entitled to the legacy, notwithstanding the revocation. In the
The objеct of this arrangement is apparent. The testator was conveying to his son-in-law $15,000 of stock whiсh it was believed would be valuable, and which in point of fact proved to be worth more than its рar value, the dividends thereon being from ten to fifteen per cent. It was an advancement during the lifetime of the testator, over and above what his other children received at that time, аnd the provision for the bond of five thousand dollars and for the dividends upon $2,500 of the stock was doubtless intended to produce equality between his children, taking into consideration the testator’s еxpectancy of life. Be that as it may, the testator regarded it as an advancement; in рoint of fact it practically was so; the testator had the right to so treat it; the facts \yerе peculiarly within his own knowledge, and we cannot deny him the
The decree is affirmed, and the appeal dismissed at the costs of the appellant.