20 App. D.C. 453 | D.C. | 1902
delivered the opinion of the Court:
The assignments of error are three in number:
(1) That it was error to hold the words in the paper concerning a journey as constituting a condition precedent to the operation of the writing as a will, instead of being merely an expression of the inducement for making the will.
(2) In holding that no testimony was admissible to show that these words did not constitute a condition, and that the paper was of a testamentary character.
(3) That it was error to adjudge costs against the petitioner Eaton individually.
2. The first assignment of error brings up for review the only substantial question in the case — whether the paper writing in question became a nullity by reason of the failure of the apparent condition upon which it was to become effective; or whether what appears to be a condition was in fact and in legal intendment only the expression of the inducement operating upon the mind of the writer to make the alleged will. And this question we think was rightly determined by the court below by the decree which it made.
Undoubtedly unless we are prepared to repudiate the overwhelming weight of authority and to hold that there can be no such thing as a conditional will, that is, an instrument of writing limited to go into effect as a testamentary disposition of property only upon the happening of some specified contingency, and not otherwise, the document in this case pmrporting to be the will of the deceased > Caroline Holley
It is open to us, of course, to speculate that she did not mean this, but something directly the reverse of it. But wills cannot be established upon mere speculation that parties did not mean what they said. It is difficult to see why such conditions should be inserted in papers of a testamentary character, when the same result could be had by the execution of another will upon the determination of the specified contingency, or by the destruction or cancellation of the paper. But it is idle to speculate on the actuating motives of parties in their testamentary dispositions. Nowhere, perhaps, are the vagaries of human nature more distinctly evidenced than in the matter and the manner of wills and testaments, especially when these documents are written by the parties themselves, or by persons ignorant of the law. It is often difficult to determine what they mean, or to deduce a coherent and rational purpose from them. But the difficulty would be increased a thousand fold, if courts allowed themselves to go outside of-the written instruments, opened the door to oral testimony, and established wills upon speculation as to what was the real intention of the parties irrespective of the written document. No doubt that real intention is sometimes frustrated by the application of this rule of construction. But it was said long ¡ago in this connection — voluit, sed non dixit — he may have so intended, but he has not said so — and we are bound by the writing.
In the leading case of Parsons v. Lanoe, 1 Ves. Sr. 190, before Lord Chancellor Hardwicke, the words used were almost identical in their import with those used in the present case. They were: “ In case I should die before I return from the journey I intend, God willing, shortly to undertake for Ireland, my will and desire is, etc., etc.” It appeared also in that case, somewhat similar to the present, that the testator in his last illness had told some of the persons around him that his will would be found in a certain designated place, where the paper offered for probate was subsequently found, and that he had frequently alluded to it as his will. He returned from Ireland, and died some time afterwards. Lord Hardwicke, in disposing of the ease, said:
“ I am of opinion that the disposition is a contingent provision, and I think no part was intended to take effect, except he died before his return.”
And he held also that oral testimony was n'ot admissible to explain or vary the words of the writing.
In the case of Likefield v. Likefield the Court of Appeals of the State of Kentucky had before it a testamentary paper, which was in these words:
“ If any accident should happen to me that I die from home, my wife Julia Ann Likefield shall have everything I possess, the house and lots and money that is due to me, and for her to hold it as her own.”
And it held: “ The rule is that courts will not incline to regard a will as conditional if it can reasonably be held that the maker was simply expressing his inducement to make it, however inaccurate the language may be for that purpose, if strictly construed; and unless the words clearly show that it was intended to be temporary or contingent, it will be upheld. * * * "While the word if is an apt one to express a condition, yet the language used is so general in character that it shows that the testator intended it as words of inducement
In the case of French v. French the words used by the testator were: “Let all men know hereby, that if I-get drowned this morning, March 7, 1872, I bequeath all my property, personal and real, to my beloved wife, Florence.” He was about to go on a journey on the day mentioned, which required the fording of a swollen stream near his place of residence, and from which his wife tried to dissuade him. He accomplished the journey in safety, and did not die until nearly three years afterwards. The writing specified was then presented for probate as his will; and the Court of Appeals of the State of West Virginia said in regard to it:
“ It seems that it is now an established principle that, while a person may make a conditional will, his intention to do so must appear clearly. The question is, whether the contingency is referred to as the reason or the occasion for making the disposition, or as the condition upon which the disposition is to become operative.”
And further on it said: “ The language can be reasonably interpreted and construed to mean that he refers to the calamity and the time during which it may happen as the reason for making said paper writing, and not as the condition upon which the disposition of the property is to become operative; and the will should be interpreted as though it read,— ‘ Lest I get drowned this morning; or lest I die this morning.’ ”
These cases have not received unqualified approval. The cases of French v. French, In re Dobson, and In re Martin were cited by the Court of Appeals of Maryland in the case of Kelleher v. Kerman, 60 Md. 440, 446, 447, where it was said of them: “ Without committing ourselves to full approval of these several decisions under their respective circumstances and language employed, we refer to them as vastly stronger cases for holding the will contingent than this one, and where they were held not contingent.” In the case of Kelleher v. Kerman it was significantly remarked that the
In the case now before us there is no specific reference whatever to the matter of death, except by implication. Neither dying nor death is mentioned. The sole statement is that the testatrix might never return from the journey which she was about to undertake. It is quite consistent with her circumstances that if she did return, she might have-made some other disposition of her estate. At all events we find nothing in the words which she used which would remove them from the category of conditional limitations.
It may well be that in all such eases the parties had no actual intention to make their bequests and devises in the shape of conditional limitations; and that all such conditional limitations should be disregarded, or construed merely as statements of the inducement to the making of the wills -at the time, if we would give effect to the real intention of the testators. But, in view of the authorities on the subject, and in view of the danger of wandering beyond the letter of the will in -order to seek the intention, we are constrained to hold that, in consequence of the words of the preamble and the failure of the contingency on which the testamentary paper in question was to become operative, that paper is now of no effect. And we think that the court below was right in so holding.
3. An assignment of error is based upon the adjudication of costs against the appellant. Blut it does not appear that the question was in any manner raised in the court below, as might well have been done. Nor this reason, and because
We find no error in the decision of the probate court in the premises; and it follows, therefore, that the order appealed from should be affh'med, with costs. And it is so ordered.