2 Bradf. 204 | N.Y. Sur. Ct. | 1852
The instrument offered for probate, bears date September 1,1851. It is proved to have been duly executed as a will. The paper runs in this way:— “ According to my present intention, should anything happen me before I reach my friends in St. Louis, I wish to make a correct disposal of the three hundred dollars now in the hands of Mr. Harrison, bearing interest for me. Of this I leave to Mrs. Anne Lindsay, widow of my dear brother now deceased, one hundred and fifty dollars, for the benefit of herself and her children, share and share alike. The other hundred and fifty, I leave to the Associate Presbyterian Church, &c., for promoting the cause of Christ in said church.”
It appears that the deceased proceeded safely to St. Louis, on the proposed journey mentioned in the will, and afterwards returned to Hew York, where she died in December last. Is the paper propounded for proof, an absolute or a conditional will, and must that point be determined on the probate % At common law there might be conditional wills of personalty, that is, wills the validity or operation of which was, by the terms of the instrument itself, made to depend upon a specified contingency. The condition must be one which goes to the root of the entire will, and not merely to certain provisions, in order to have the question raised on the probate. If the conditions
There is another question necessary to be determined in this class o.f cases, and that is, whether the words clearly express a contingency upon which the instrument is to take effect, or whether they may fairly be interpreted as indicating the cause or occasion of making the will; whether, in the language of Sir John Nicholl, “it is an absolute condition, or dependent on any particular motive operating at the time.” “ Albeit,” says Swinburne, “ the testator make his testament by reason of some great journey, yet it is not revoked by the return of the testator.” In Burton vs. Collingwood, 4 Hagg., 176, the will began in this way : “ March 5,1814. Morning, near one. All men are mortal, and no one knows how soon his life may be required of him. lest I should die before the next sun, I make this, my last will and testament, in thankfulness to God that I have anything left to devise.” This will was preserved by the testator for eighteen years, and was admitted to probate, on his decease; the court being of opinion that it was not contingent as to the disposition of the property. In Forbes vs. Gordon, 3 Phill., 625, the court said, “ The words, ‘ In case of my inability to make a regular codicil to my will, I desire the following to be taken as a codicil, &c.,’ are not provisional or conditional terms, but mean no more than ‘ Till I make a regular will, so long I adhere to this paper.’ ” In Bateman vs. Pennington, 3 Moore, P. C. C., 223, the instrument was written in ink, but dated and signed in pencil, with the addition, “ In case of accident, I sign this m/y will.” The testator lived more than three months after. The will was admitted to probate. The terms, in the case of Strauss vs. Schmidt, 3 Phill., 209., were, “ In case I should die on my travels, &c.” The testator returned home, and having
It will be observed that all these cases occurred before the adoption of the statute prescribing the mode of executing wills of personal estate, and when the court might judge from extrinsic evidence as to the intention of the testator. In the case now before me it appears in proof that the person with whom the decedent deposited the will offered on her return from St. Louis, to give it up to her, saying that “ she supposed the paper was of no use, to which the decedent replied she wished it to stand as it was, and desired her to keep it, for if she had to do it again she would make a similar will.” At the period when parol evidence of republication could be given and no formal act was required, this evidence of subsequent ratification or recognition would have been sufficient. But under our statute, republication now requires the same formalities as are requisite to the original execution of a will. The validity of this instrument must, therefore,, be tested by the proof of its original execution, and by its contents, without the aid of extrinsic evidence as to the intention of the testatrix. If