14 W. Va. 458 | W. Va. | 1877
Lead Opinion
delivered the opinion of the Court:
The plaintiff filed his bill against defendant in the circuit court of Hampshire county, in which he alleges, that William Taylor French departed this life on or about the 29th day of December, 1874, leaving no children, but leaving his wife, Florence French, surviving him; that plaintiff is the father of the said William Taylor French and his heir at law, that on the-day of May, 1876, the said Florence French propounded in the circuit court of Hampshire county as for the last will and testament of the said William Taylor French, deceased, a certain paper-writing in the words and figures following, to-wit: “Let all men know hereby, if I get drowned this morning, March .7, 1872, that I bequeath all my property, personal and real, to my beloved wife, Florence. Witnesss my hand and seal, 7th of March, 1872.
AVm. T. FRENCH.”
That the circuit court admitted the said writing to probate' as and for the will of said William Taylor French. A copy of the order of the circuit court admitting said will to probate is filed with the bill as an exhibit marked No. 1.
Plaintiff avers, that the said writing so admitted to pro
Plaintiff’s exhibit No. 1 referred to and filed with his bill is as follows, viz:
“West Virginia, Hampshire County, To wit:
. At a circuit court of Hampshire county continued and held at the court house of said county, on the 4th day of May, 1876, a paper writing in these words and figures,*464 to-wit: ‘Let all men know hereby, if I get drowned 'this morning, March 7, 1872, that I bequeath all my property, personal and real, to my beloved wife, Florence. Witness my hand and seal, 7th March 1872 — Wm. T. French,” was propounded in this court as the last will and testament of William T. French, deceased, by Florence French, the devisee named in said will; and it appearing to the court from the testimony of Hampton Stump and Charles.French, that said paper-writing and signature were wholly in the handwriting of said William T. French, deceased, and that he was of sound and disposing mind and memory at the time of the execution thereof, the said paper-writing was admitted to probate as the will of the said William T. French, deceased, and ordered to be recorded according to law.”
The order of the circuit court filed with the defendant’s answer is the same as exhibit No. 1. filed with plaintiff’s bill.
It appears that the plaintiff took and filed in the cause the following deposition, viz : Deposition of Mrs. Florence French.
“First question by counsel for complainant — Are you the widow of W. T. French, and were you present when he executed the paper propounded by you as his last will and testament and admitted to probate by the circuit court? If you were, state all the circumstances attending the same, stating fully all the conversation between you and him on the subject and any and all statements made by him at that time on the subject'
“Answer — I am the widow of W. T. French. 1 was present when he executed the paper referred to. The day he wrote this will the river was very deep, and In; started to go across the river, and I was very anxious for him not to go; Í. was afraid some accident would happen ; I tried to persuade him not to go; he started out of the room and then came back and sat down and wrote that will; I am not certain whether Miss Lizzie Pugh, who js now the wife of the plaintiff) William French, was in*465 the room when he wrote the will; but if not, she carne in, and he handed her the paper, and told her to read it.
“Second Question — State the manner in which W. T. French wrote the paper. Was it not done in rather a laughing way, and did he not state that you need not be afraid of the consequences, if he did get drowned that morning, as you-would be all right, or something to this effect ?
“Answer- — -I thought he was in earnest; I don’t recollect of his laughing at all; if I had not thought him in earnest, I should not' have presented the paper. If he made any such statement, I don’t recollect it.
“Third question — State what disposition was made of said paper after its execution, and what became of the same, and when and where it was found after the death of W. T. French ? .
“Answer — I was in the habit of keeping my husband’s papers; he generally gave them to me to take care of; I put that paper in a box with some receipts, and about one week before my husband’s death he told me to look up a receipt for him; and in looking for the receipt I came across this will, and took it and put it in another place, in my top drawer, in a box in my room with, some other important papers that I had; and for that reason I had difficulty in finding it when I was looking for it, because I had forgotten where I"had put it; I could not •tell where to look the first time, because my cousin was looking and I could not direct her where to look for it; my mind was so confused at the time on account of my trouble. This occurred after the death of my husband. After this I went to Baltimore and spent a month ; and while there thought over the matter, and then recollected exactly where I had put it. When I returned from Baltimore, I went to the place and found it myself.”
Cross-examined by counsel for the defendant:
“First question by defendant’s counsel — State whether or or not your husband, W. T. French, did ever, at any time subsequent to the making of said will, recognize the*466 same a!= his will; if so, when and how?” (Excepted toby 'plaintiff's counsel.)
“Answer — A short time after he wrote the will, not over a week, he asked me what I had done with the paper. I said, 'Is that paper any account ?' And he said, 'just, as nu.oh so as any will; all a man has to do now is to write his own will, and he can do that in a very few words;' and he referred to the case of Col. Isaac Parsons, who had written his own will and it had held good in law; and he said, 'I want you to take care of that paper.' at another time, in the presence of Miss Lizzie Pugh,' now Mrs. French, Miss Rebecca Swisher and myself and my husband Miss Pugh said to Miss Swisher: ‘Did you know that Mr. French had made his will ?' And then I stated the circumstances as I havejust stated them — how he happened to do it; and Miss Swisher turned to Mr. French and said to Mr. French: "How did you happen to think of writing your will; you don't look anything like dying?’ And he replied, 'I don't know what might happen to me and I wish my wife to have my property.' (The answer is objected to by plaintiff's counsel). And further deponent saith not.”
It appears that the defendant took and filed in the cause the following deposition, viz: Deposition of Rebecca Swisher :
“First question by defendant's counsel — State your name, age and residence.
“Answer — I am thirty years old; name, Rebecca Swisher, and reside on Levels in Hampshire county.
“Second question by same — State whether or not you have, at any time since 7th March, 1872, heard William T. French, now deceased, refer to the paper admitted to probate as his will ; if so, when and under what circumstances ?
“Answer — I was at Mr. French's house a few days after he wrote this will. Mr. and Mrs. French, Miss Lizzie Pugh and myself were sitting in a room together, Miss Pugh said : Mr. French made his will the other day.*467 I wanted then to know why it was he made his will. Mrs. French then told me he was going over the river a' few days before, and she objected on account of the river being high, but he started, came back and sat down and wrote his will. I then turned to Mr. French and asked him why it was that he had written his will; he told me that he didn’t know what might happen and he wanted his wife to have his property. And further the deponent saith not.”
Also the deposition of H. W. Stump which is as follows :
“First question by defendant’s counsel — State your name, age and residence ?
“Answer — Name is H. W. Stump • my age is forty-three years, and I reside near Clarksburg, W. Ya.
“Second question by same — State whether you knew W. T. French, now deceased, anything of his habits of business. Have you ever seen him write, and can you say whether or not he was in the habit of using a lead pencil in writing generally? (Excepted to by plaintiff’s counsel.)
“Answer — I knew William T. French, and knew his habits of business. He would write with whichever came the handiest. In business transactions and business letters, he was in the habit of using a pencil.
“Third question by same — Did you ever hear William T. French speak of the disposition of his estate by will ? If so, when and under what circumstances?
“Answer — -I heard him at one or more times since March, 1872, the date I cannot call to mind with the exception of one, speak of it. He and I got into conversation, and I said : ‘How are you getting along ? ’ And he said : ‘First rate, and have things in a good way to live, and if I live a year or two longer, will have them in better shape.’ And I said: ‘What are you going-to do with your property when you die ? You haven’t got any children, and I don’t suppose ever will have ? ’ And he said : ‘I expect Florence to have my property. I*468 don’t expect to live long anyhow.’ This was in October before he was killed. He was killed in December, 1874. On another'occasion he said: ‘I have got it in my head I am not going to live very long ; ’ and I made light of it and said, ‘What are yon going to do with your property?’ And he said‘I can leave it to my wife.’ And further this deponent says not.”
The foregoing are all the depositions appearing in the cause.
It appears by fhe record, that at a circuit court of Hampshire county continued and held at the court house of said county on the 12th day of December, 1876, the court made and entered this final decree in the cause, viz :
“ By consent of the parties, by their counsel, this cause came on to be heard upon the bill of William French, the answer of Florence French filed thereto, the general replication to said answer, and the depositions taken by consent and filed in the cause, and the repetition in this case of the formal proof of the execution of said will and the sanity of the testator, introduced at the probate of the will on the common law side of this court at its May term, 1876; and the parties, by their counsel, waiving an issue to be tried by a jury, it was argued by counsel and submitted to the court. On consideration whereof, the court, being of opinion from all the evidence in the cause that the paper admitted to probate as' the last will and testament of William T. French is his true and valid last will and testament, that the same was not conditional or contingent in its effects and operation, but rvas an absolute testamentary disposition of his estate, as such was recognized and referred to by said testator after the date mentioned therein, doth accordingly adjudge, order and decree, that the paper admitted to probate as the last will and testament of William T. French, deceased, is his true and valid last will and testament, and that it does operate to pass to Florence French all the estate, real and personal, of which the said William French died seized and possessed ; and it is further adjudged and*469 ordered, that the bill be dismissed, and that Florence French do recover of William French her costs about her suit in this behalf expended.”
From this decree the plaintiff obtained an appeal to this court, and has assigned in his petition for said appeal the following as errors, viz :
“1. The writing in controversy was not a final testamentary act, and not made animo testandi, although the court below held otherwise.
“2. The said writing, if a will at all, ivas made to depend for its effect upon a certain contingency, and was conditional. . The contingency not happening, the will was void, although the court below held otherwise.
“3. The court below erred in considering and relying upon declarations made by the alleged testator subsequent to the execution of said writing, and proved by parol testimony for the purpose of establishing or reviving the same as a valid will.
“4. The court below erred in considering and relying upon the testimony of the defendant, introduced in her behalf, as to transactions and communications had with William T. French, the alleged testator.”
I will proceed to consider the foregoing assignments of error, the first two together and the other three separately. The first thing to determinéis: Was the writing in controversy a final testamentary act ?”
The counsel for the plaintiff, in support of his said first assignment of error, has cited and quoted in his printed brief from Shep. Touchstone, 404, the following: “The second thing required to the making of a good testament is, that he that doth make it have, at the time of making it, animum testandi, i. e. the mind to dispose, a firm resolution and advised determination to make a testament; otherwise the testament will be void; for if a man rashly, unadvisedly, incidentally, jestingly, or boastingly, and not seriously, write or say that such a one shall be his executor, or have all his goods, or that he will give to such a one a thing, this is no testament.”
In 1 Redfield on Wills, 2d ed. 170, 171, cited by plaintiff’s counsel, it is said: “And when the paper on its face is equivocal, in order to lx; treated as testamentary, it must clearly appear that it was intended by the maker to operate as a disposition of his estate after death. 8. But the English ecclesiastical courts have held, that it is not requisite, in order to have a paper operate as testamentary, that the maker should so have intended in all cases, since if the paper contains a disposition of property of the maker, to become, or to be operative after the death of the maker, but was not intended by him to operate as a will, but as a settlement, or a deed of gift, or a- bond, if it cannot for any reason operate in that form, the courts have sometimes allowed it to operate as testamentary. 9. But it is not to be inferred from this, that a paper which was not intended to have any operation, as a paper which was drawn up in the form of a will, but not in seriousness and earnest, animo testandi, or as
The case of Nichols v. Nichols, 2 Phillim. 180. decides that: “A will, not written with a testamentary intention,” will be set aside; and that it was competent to prove by the subscribing witness facts and circumstances tending to show such want of testamentary intention. In this case there was no provision made in the will for his wife (he married after the date of the will), and as facts and circumstances tending to strengthen and confirm the other evidence in the cause, it was allowed to be proved, that the deceased lived on terms of affection with his wife, and he said he had no will; that the law would malee a good will for him. The court says : “ During none of these circumstances does he make any allusion to the existence of this paper. His forgetting it would not operate as a revocation ; but it is a circumstance to show that he originally never intended it as a testamentary paper. There is little doubt that when he threw it across the table he meant it should be put in the fire.”
In the case of Trevelyan v. Trevelyan, 1 Phillim. 149, the subscribing witness who wrote the will, as directed by the testator, and subscribed his name to it as a witness deposed that very soon after the will was executed and witnessed, and after he left the deceased, he destroyed it, because he supposed the deceased was not really serious; that he thought the joke had been carried to a sufficient length; still the court established the will. Sir John Nichol, in delivering the opinion of the court in this case, said : “There can be no doubt in law, that if a will duly executed is destroyed in the lifetime of the testator without his authority, it may be established upon satisfactory proof being given of it having been so destroyed, and also of its contents. The question then comes to the facts, and in this case there is abundant proof of the execution and contents of the instrument, as well as of the destruction of it without the authority or knowledge of the deceased. It is not necessary to decide
In the case of Hocker v. Hocker et al, 4 Gratt. 277, “a paper-writing, though in the handwriting of the deceased and signed by him, ivas held not to be a testamentary paper.” The paper-writing in this case commenced: “ Directions how I want my will wrote,” &c. Thiswrit-ing from its face was not a final act, it contemplated something else yet to be done, to-wit: the writing of the will, &c.
In the case of Sharp v. Sharp, 2 Leigh 249, the will commences: “My brothers and sisters as followeth” <&c. In this ease Judge Coulter, who delivered the opinion of a majority of the court, at page 260 says : “It seems to me to result from all the cases, when we are deciding on a paper whether on its face it is testamentary or not, that it is the mind not the words, the intention not the manner, which is to be looked to; unless indeed the words or manner show a suspended mind and intention.” Again at page 261 he says, “If, however, there be a well founded doubt, arising from the face of this writing, whether it was intended as a testamentary paper or not,
In the case of McBride et al. v. McBride et al., 26 Gratt. 476, it was held, that “1. It is not necessary to the validity of a will that it should have a testamentary form, or that the decedent should know that he had performed a testamentary act, or that he should intend to perform such act. If the paper contains a disposition of the property to take effect after the death of the testator, though it was not intended to be á will, but an instrument of a different shape, yet if it cannot operate in the character intended, it may operate as a testamentary act.
“2. It is not necessary that the paper should be the identical one intended by the testator for his last will. If the instrument has once received the sanction of the testator, as the final disposition of his property, it will so remain, until revoked or cancelled in a way prescribed by the statute, though he may have always intended to make another will.
“3. It is necessary however that the instrument, what
“4. But when the draft or notes of a will embody the provisions actually designed by the testator with reference to his property, and declare the settled purpose of the testator, they will be established as his will, although his purpose may have been to extend the notes or draft into a more regular form. This however is only permitted, when the testator is prevented by the act of God from completing the instrument in the form in which he designed it. And even in such a case it is essential that the paper shall contain the- final determination of the testator with regard to the disposition of his property.
“5. In all other cases the paper offered for probate must have been designed thereby to dispose of his property. He must have looked to that paper as the means by which an object was to be accomplished, and that object the disposition of his estate after his death. Unless he intended this, the paper is not his will, whatever he may have called it. If he did so intend it, it is his will whatever he may have called it. The intention is the controlling principle in such case.
“6. M. has a will prepared by his counsel, which he examines and approyes, and says he will meet the counsel in B., a village near, and execute it. A few days after this he writes to a brother in Texas, and after giving him a detailed account of his domestic troubles, which letter he suggests to him to burn, he states that he has made a will, and states the bequests in it, and that he has appointed this brother arid his counsel his executors. He says it is not such a will as he expects to make.' The letter is signed with the initial of his Christian name, ‘ J7 Two months after seeing the will prepared for him he is accidentally killed, not having executed the paper. • Held: I. The letter is not a testa
In this case Judge Staples, who delivered the opinion of the court, says at page 481: “It is necessary however that the instrument, whatever it may be, whether a note, settlement or deed, should have been designed to operate as a disposition of the testator’s property. That identical paper must have been intended to take effect in some form. It must have been written animo testandi. In the language of Judge Cabell: ‘Á. paper is not to be established as a man’s will merely by proving that he intended to make a disposition of his property similar to, or even identically with, the same with that contained in the paper. It must satisfactorily appear that he intended the very paper to be his will. Unless it does so appear the paper must be rejected, however correct it may be in its form, however comprehensive in its details, however conformable to the otherwise declared intentions of the party, and although it may have been signed by him with all due solemnity.’ ”
In the case of Constable v. Steihl and Emanuel, 1 Hag. 23, by Fuiguson, it was held according to the syllabus, that “handwriting and finding'are sufficient to support a codicil confirming a legacy under a will; which codicil came out of the custody of, and was propounded by, the person solely benefited under it; who had been sworn executor of the will and codicil four months before producing this paper, and the validity of whose legacy under the will was, at the time, a question depending in the court of chancery. In the courts of probate it is almost a settled principle not to pronounce for disputed papers on evidence of handwriting alone.”. In this case the genuinness of the paper was disputed and Sir John Nichol in his opinion in this case says, “These are peculiarly necessary in the present case, when there is much conflicting evidence on this point, for there are a great number of witnesses, also well acquainted with the handwriting of the deceased, who speak to their belief that the pa
The 5th rule as laid down by Mr. Jarman, as stated by Redfield on Wills, at page 425 and 426 of the 1st vol. of his work, is: “That the heir is not - to be disinherited without an express devise or necessary implication, such implication importing not natural necessity, but so strong a probability, that an intention to the contrary cannot be supposed.” Mr. Redfield however says in his text, that “in common with all general rules, they will be found to call for considerable discretion in their application to particular cases.” Mr. Redfield also in note 1 at the end of said rules says : “Within the last few months the court of last resort in England seems to evince a determination not to allow technical rules of construction to overbear and break down all the better interests, and involuntary sentiments of common sense, and the common experience of mankind, seen in the construction of wills, and we hail the omen with no slight gratification.”
In the case of Boisseau et al. v. Aldridges, 5 Leigh 222, it was held according to the syllabus as follows, viz: “B. in his lifetime signs and seals the following intrument, ‘not having’ made a will so as to dispose of my property, and two of my sisters having married contrary to my wish, I wish this instrument to prevent either of their husbands from having one centofxny estate, say the husbands of my two sisters M. and D. nor either of them to have one cent, unless they survive their husbands; in that case, I leave them $500.00 each to be paid/ &c. On which he endorses ‘mem. to prevent Bennett and Bus-well Aldridge (the two husbands) from having any part of my estate, that each might claim in right of their wives, without a will made by Kiel IIeld: 1. The instrument is a testamentary paper; but 2, a man cannot disinherit ihis heirs or next of kin, in any other way than by giving his estate to some one else; and 3, the instrument is not a devise and bequest of the testator’s estate by implication, to his heirs and next of kin other than the to wsisters
In this case Judge Brooke in his opinion at page 237 says: “ And in examining cases of this kind, we are not to forget that those, who claim under the law, have as strong a claim to the property, as those who claim under the will; indeed somewhat stronger, since it is a settled principle, that if a devise gives no other estate than the law gives, those, ivho are to take, take under the law and not under the will, their title under the law being preferable to their title under the will.” It may be remarked that the last named matter of law stated by Judge Brooke did not arise in the case except by use of illustration. In the same case Judge Tucker at pages 244 and 245 expresses the opinion, that a devise may be created by necessary implication, and that the exclusion of the heir even by implication and without express words may raise an estate by implication in another.
The case of Banks et al v. Berth, 6 Munf. 385, was a case in which the plaintiff filed a bill to perpetuate testimony, and to establish, as the last will of the decedent a paper found in his desk after his death purporting to be such will. In this case the court held, that “notwithstanding a paper purporting to be a will be proved in a suit in chancery to have been wholly written and subscribed by the supposed testator; yet if upon the evidence (there being no attesting witness) it be doubtful whether, at the time he wrote it, he was in a proper state of mind to make a testament, whether it was seriously intended by him as such, or if so, whether it has not been subsequently nullified by the republication of a former will, a revocation of it, or otherwise, the court ought to direct issues to ascertain such facts, before any decision of the cause.”
In the ease of Wootton v. Redd’s ex’r et al. 12 Gratt. 196 it was held, “1. In expounding a will the court will
In Chi tty’s Black. Com.-side page 450, note 6, it is said : “And the heir will not be disinherited by any implied construction of the devise of his ancestor, for descent is favored; and this rule applies as well to heirs general as by custom; and there must be some plain words of gift or necessary implication to disinherit an heir at law.”
In Ramsey et al. v. Ramsey’s ex'r, 13 Gratt. 664, it was held, that “the name of a testator at the commencement of a holograph will is an equivocal act, and unless it appears affirmatively from something on the face of the paper that it was intended as his signature, it is not a sufficient signing under the statute. Code, oh. 122, §4, p. 516.” The only question in this case was, whether
In tbe case of Sharp v. Sharp et al., 2 Leigh 249, the principal question was, whether the paper-writing in question was a mere memorandum of the manner in which the decedent intended to give his property by a will thereafter to be made, or a completed will; and the court, upon proof that such paper-writing was altogether in the handwriting of the deceased, and that his name subscribed thereto was in his proper handwriting, and that it was found in an old pocket-book in the desk of deceased with some other papers, namely, checks, tickets and sheriffs’ receipts, established the will.
In the case of Roy et al. v. Roy’s ex’r, 16 Gratt. 418, it was held: “1. In a holograph will the writing of the name of the testator at the commencement ot the paper, is an equivocal act, and therefore is not of itself a sufficient signing of the paper to constitute it his will. 2. The paper being folded up and endorsed by the testator with his name as his ‘E.’s will’ is not a sufficient signing.” In this case it was shown, that the alleged will was found in the pocket-book of the deceased after his death, which was locked up in his trunk; that there were bonds, receipts, and other papers in the pocketbook.
In the case of Ramsey et al v. Ramsey’s ex’r, 13 Gratt. 664, it was shown that the alleged will ivas found after the decedent’s death locked up in his drawer folded up in the form of a letter and sealed with a wafer, but without endorsement of any kind. In the said case of Roy et al. v. Roy’s ex’r, 16 Gratt. 418, it is stated by the reporter : “And it being found that the paper as well as the endorsement upon it was wholly in the handwriting of David M. Eoy, the only question in this court was, whether it was so signed by the testator as to make it his will.”
It seems to me, if F. makes and executes his will in due form of law, by which he devises his estate to his wife, who at the time of the execution of the will would have been his legal heir if he had then died, but before the death of F. the law is changed, so that the father at the time of his death is his legal heir, the will should ordinarily in that case or a like case be held valid, and not void for that reason; and to that end, if necessary, the court, to carry out the intention of the decedent and to avoid intestacy, would and ought to presume, if necessary, that the will was executed in contemplation that the law might- be changed as to heirship before his death. The fact, that at the date of the paper-writing in controversy in this case the defendant, as the wife of the decedent, would have been his legal heir and dis-tributee, and the contents of said paper-writing, may be considered in connection with others pro and eon in determining the question animo testandi at the execution of the said paper-writing. Nichols v. Nichols, 2 Phillim. 180.
In the case of Cody v. Conly et al., 27 Gratt. 313, the paper-writing in controversy was admitted to record by the county court of Fairfax county, Virginia in 1868, as the last will and testament of Edmund C. Conly, upon the same being proved to be wholly in the handwriting of the said Conly, and the signature thereto his genuine signature, by the oath of Samuel Farnsworth sworn in open court, and was admitted to probate and ordered to be recorded. The paper-writing in this ease was in these words:
“Lewinsville, August 19, 1862.
“Dear Wife:
“I am going away; I may never return. I leave my*482 property to Gaines and Dan; dispose of it as you see fit; don’t forget sister Mary and Bridget. Pay William McConly $20.00, Patrick Sulivan $25.00.
“EDMUND 0. CONLY.
“ Witness,
“Samuel EarNsworth.”
In 1869 Mary Cody, a sister of the alleged testator, brought her suit in the circuit court of Fairfax county, to invalidate the said probate. In her bill the plaintiff alleged among others, that she and others were the legal heirs of said Conly, deceased; that the said Conly, who in the year 1862 was a resident of said county and possessed of some lands and personal estate, in view of the civil war then raging contemplated leaving his residence and going abroad, and wrote a letter, as is alleged, to his wife, Margaret Conly, which letter is the paper-writing aforesaid; that said Edmund Conly never left his home, but continued to reside in Fairfax county until his death in 1868; that during his life he purchased a farm near Lewi'nsville, and placed the complainant, Mary, his sister, in possession of the same, for the use and benefit of herself and family, free of rent, and of which property she was still in possession; that after the death of said Edmund C. Conly the letter aforesaid was admitted to probate in the county court of said county, as the last will and testament of said Edmund C. Conly, on the oath of Samuel Farnsworth, who testified that said paper was wholly in the handwriting of said Edmund C. Conly, and his signature was genuine. Full proof was required of the genuineness of the latter; and even if genuine, complainant claimed that it was not the last will and testament of said Edmund C. Conly, or that he ever intended it to operate as such. Moreover even if said paper might be regarded as testamentary, complainant contended that it would be void for vagueness and uncertainty, and that the probate was also void, the said paper having been proved only by one
The widow, Margaret Conly, who filed her answer, among others related the following facts in substance: That her husband died in February, 1868, leaving personal estate worth some $500.00 or $600.00 and twro small tracts of land containing sixty-three acres and one hundred acres, which latter he purchased four or five years before his death and rented to the complainant, &c.; that he died without children, and that his heirs at law might be correctly named in the bill. She averred however, that the paper, referred to in the bill as having been admitted to probate, did contain the disposition of his property as he had frequently expressed to her. The two boys named therein James and Dan, were the children of her brother John Donavan, whose wife at her death left two small children, the boys above named, and at the instance and request of respondent’s said husband these two children were taken by her to their house, where they ha/e remained ever since, a period of upwards of sixteen years. The said boys were then (in October, 1869) nineteen and seventeen years of age. She further averred that she had frequently heard her husband say, both before and after the date of said will, that the two boys should have whatever he had to leave; that having been raised by him they felt like his children and should stand in place of children to him, &c.
In November, 1869, the cause coming on to be heard in the said circuit court, a decree was made, that there should be a new trial by jury on the common law side of the court to ascertain whether any, and if any how much, of the said paper-writing, in the bill and proceedings mentioned, offered in the county court of Fairfax county and there admitted to probate as the will of Edmund C. Conly, deceased, was the will of the decedent; and that in the trial the bill, answer and exhibits might be read. In November, 1871, the issue was accordingly tried by a jury, which found a special verdict in these
The case being heard and considered by the court upon the special verdict, and it seeming to the court upon the facts therein that the paper-writing therein referred to is the last will and testament of Edmund C. Conly, it was • afterwards, on the 6th day of December, 1871, decreed by the said court accordingly.
From the decree aforesaid, declaring the said paper-writing to be the last will and testament of the said Ed
The 3d section of chapter 77 of the Code of this State, which is the same as §4, of chapter 122 of the Code of Virginia, is in these words: “3. No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the same is intended as a signature; and moreover, unless it be wholly written by the testator, the signature shall.be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time ; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”
The 28th section of said chapter 77 of this State is as follows: “28. After a sentence or order made as aforesaid, a person interested, who was not a party to the proceeding, may, within five years, proceed by bill in equity to impeach or establish the will, on which bill, if required by either party, a trial by a jury shall be ordered, to ascertain whether any, and if any how much, of what was so offered for probate, be the will of
In the 1st vol. of Redfield on Wills 2d ed. pages 176, 177, 178 it is said: “As questions of a very embarrassing nature often arise in regard to the proper testamentary character of papers left in the form of a will but expressed in terms more or less contingent, it must be borne in mind, that in that class of instruments the question must turn upon the point, whether the contingency is referred to, as the occasion of malting the will, or as the condition upon which the instrument is to be become operative. Ordinarily, when the instrument is'executed with all the requisite formalities, it will be. presumed to have been done animo testandi, notwithstanding that it may be expressed to have been made to avoid the contingency of dying intestate, in case the testator should not return from a contemplated journey. In such a case, in order to render the instrument contingent in its operations, it should clearly appear by its language, that it was not intended to remain as an operative will except in the failure to return.” This seems to be in accordance mainly with principles stated by Judge Moncure in his opinion in the case of Cody v. Conly, 27 Gratt. 313:
In the case at bar we understand from the decree of the 12th day of December, 1876, and exhibits in the cause, that it was proven before said court with the consent of parties by parol evidence, that the paper-writing in question here was wholly in the handwriting of the deceased, and that the signature thereto was the genuine signature of the decedent, and that the decedent was at the time he executed said instrument of sound mind.
I inter from this evidence of Mrs. French, that she and her husband resided on or near a river, and that on the day said paper-writing was executed by the decedent said river was more full and deeper than common, and that she considered that it was dangerous for her husband to attemptto cross itinitsthen condition. It also appears that the decedent and his wife never had any children; and from the face of the will it appears that the decedent owned real and personal estate, although it nowhere appears in the cause what amount of real and personal estate he owned, or what was the probable value thereof. It is also a fact that if on the day of the date of said paper-writing the decedent had died, his wife would, by the statute of descents and distributions then in force in this,Slate, have inherited the whole of decedent’s real estate, and been entitled to receive the whole of his personal estate after payment of his debts, &c.
• Thus we have the making and execution of said paper-writing by the decedent with his own hand fully proved, and the circumstances which surrounded him when he made it. It is also shown that at the time he made and executed said paper-writing he deposited it with his wife to take eara of, and that according to his directions she did take care of it until her husband’s death. It is not established by the evidence in my judgment that said paper-writing was written with a pencil, as plaintiff’s counsel seems to infer, and I do not think at this day it should be consided material whether the will was written with pen or pencil. I am unable to see why a will written with pencil may not as well be held valid as a note or bond so written.
It is to be presumed that the decedent and his wife
"What is there in the case tending to show that the paper-writing Avas executed in jest and Avas not intended to be a testament? Certainly, considering that he Avas at the time of sound mind, Avhich is not questioned in this case, his acts and verbal declarations at the time, do not indicate that it Avas made jestingly, and that he did not intend said writing to be his testament. On the contrary they tend most strongly to prove, that the decedent did intend said writing as and for a testament. But it is argued that said Avriting did not give his Avife anything more than she Avould have been entitled to by law, if the .decedent had died on that day, and the said paper-writing is conditional and contingent in law, and became Amid and inoperative at 12 o'clock noon of the day of its date, because the contingency upon aaIiícIi said paper-Avriting Avas to operate as a Avill, to-Avit: the death of the dece
It is necessary and proper here to proceed to enquire and determine, whether said paper-writing must be considered in law as conditional and contingent, or otherwise. To determine this question, it is necessary and proper to recur to authorities and decisions upon the subject of conditional and contingent wills.
In the case of Parsons v. Lanoe, 1 Ves. Sr. 190, decided in 1748, the language of the paper-writing was : “ If I die before my return from my journey to Ireland.” In this case it was held by the Lord Chancellor, Hard-wicke, that the paper-writing was a provisional contingency and no part thereof was intended to take effect but in the event of his dying before his return; and haying returned, the whole disposition was ineffectual. In the same case the Lord Chancellor held, that when there is an alteration of circumstances by having children after making a will, as seems to have been the case in that case, no strained construction should be made to make the will effectual. See same case reported in 2 Ambler N. 557. The form of the will of the decedent in this case as given in 2 Ambler N. 557, is: “I, Charles Delanoe, of ——, do make and appoint this to be my last will and testament, in manner following: i. e. Im-primis, 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,” &c. The testator was
The syllabus to the ease of James Jacks et ux. v. George Henderson, 1 Desaus. Eq. 543, is : “ A native of Scotland enjoying some estate there, being about to come to Carolina to take possession of an estate there, executed a paper which has some characteristics of a deed and some of a will, which was recorded in Scotland by his proctor. This paper had reference to his intended voyage and the aeic-dents it exposed him to, as the inducements to its execution, in order to prevent disputes in case of his death. He arrived in Carolina, lived a number of years, married a lady of some fortune, and died without leaving issue. The court was of opinion,' that even if the paper was to be considered as a will, the dispositions of it were merely provisional and contingent; and the contingency (to-wit: his death before he arrived in Carolina) not having happened, the dispositions of the estate cannot take effect, at least not to the prejudice of the wife and her rights.” This case was decided in 1797.
In the case of Sinclair v. Hone, 6 Ves. 607. “A codicil expressed, in ‘ease of the testator’s death before he joins his wife’, was executed after a separation in the West Indies upon his voyage for England. That voyage being prevented by accident he joined her; they lived together there and in England having "returned together; and the testator having afterwards gone to Corsica and thence to Lisbon died there. The codicil •was held to be contingent, and did not take effect under the circumstances.”
In the case of Wagner v. McDonald, 2 Harr. &. J. 346. “A paper was exhibited for record as the will of C. W. proved to have been signed by him at a time when he was about to leave the State. It was written in the form of a letter, and stated: ‘If I should not come to you again, my son M. shall pay,’ Ac. Evidence was given that C. W. went to Kentucky and returned, and that he
In the case of Todd’s Will, 2 Watts & S. 145, it was held, that “an instrument, limited by a condition as to its operation, cannot be admitted to probate as a will after a failure of the contingency, on the happening of which it was to have taken effect. One, in contemplation of a journey, thus begins an informal testamentary paper. ‘My wish, desire and intention now is, that if I should not return (which I will no preventing providence) what I own shall be divided as follows.’ Held, that upon his return and subsequent death the instrument ought not to be admitted to probate.” This decision is based upon the said casos of Parsons v. Lanoc and Sinclair v. Hone.
In the caso of Maxwell, &c. v. Maxwell, 3 Metc. (Ken.) 101, it was held, that “a will or codicil may be entirety depending on a contingency, so as to have no effect asan instrument of a will unless that event happened (1 Ves. Sr. 199). In January, 1857, M. of Nelson county Kentucky ('scaped from the wreck of a steamer on the Mississippi river, and arriving in Memphis, Tennessee, wrote his wife a letter, in which, after an account of the hardships and dangers through which he had just passed, he says : ‘The ice is still running very bad in the river. I can’t say when I will be able to get off from here, but I suppose' soon, as the weather seems to be moderating. The river is very low and navigation very dangerous, so much so, I feel that 1. should protect you in any emergency. I would not have had you with me for the world. If I never get back home, 1 leave you everything I have in the world. The property I got by my first wife, I wish you to return everything to her father.’ The letter and signature were wholly in his handwriting. It was received by his wife. He subsequently returned home and lived until March, 1858, when he was murdered near his residence by his slaves. Held: That the in
In the case of Dougherty &c. v. Dougherty &c., 4 Metc. (Ky.) 25, the will was as follows: “As I intend starting in a few days to the State of Missouri, and should any thing happen that I should not return alive, my wish is, that all of my land,” &c. (going on to devise an estate). The author of the paper made the contemplated trip, returned to Kentucky and died. Held, that the instrument is contingent and inoperative as a will.” Decided in 1862.
In the case of Louis L. McGee et al. v. George McNeil et ux., 41 Miss. 17. “P., a soldier in the Confederate army, made his last will and testament to this effect: ‘If I never return home I want all I have to be my wife’s.’ The will was made whilst he was absent from home in the army. P. returned home and in a few weeks after-wards died. Held: That the will was to take effect opon the contingency that the testator never returned home, and that event having happened, the will had no effect and was void.”
In the case of W. H. Robnett et al. defendants in error v. Mary C. Ashlock plaintiff in error, 49 Mo. 171. “The opening clause of a will was as follows: ‘I this day start for Kentucky; I may never get back. If it should be my misfortune, I give my property’ &e. Held: That the visit to Kentucky was not named merely as the occasion of the making of the will as from its supposed risks reminding of the necessity or propriety of the act, but that his death prior to his return from Kentucky was the condition, on which the will depended for its efficacy, and in case of his return it became void.”
Kedfield in his work on Wills, 2d ed. pp. 170, 171, says: “When the payee of a promisory note made a special endorsement to the effect, that if he were not living at the time of its payment, he ordered the contents paid to a person named, and died before the note was paid, the endorsement was held to be of a testamentary
Mr. Jarman’s 16th rule as cited by Redfield p. 426, 427 is: “XVI. That words, in general are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascertained; and they are in all cases to receive a consideration, which will give to every expression some effect-, rather than one that will render any of the expressions inoperative; and of two modes of construction that is to be preferred, which will prevent a total intestacy.” Redfield in same book 432, 433, says: “All the books which treat of the construction of wills constantly repeat the formula, that the intention of the testator is the prevailing consideration in applying all rules of construction.” And in his first rule on same page he says: “1. The first and universal qualification of
In the case of Pond et al, v. Bergh et al., 10 Paige 140, Chancellor Walworth in delivering the opinion of the court at page 152 says: “The intention of the testator; so far as it is consistent with the roles of law, must govern in the construction of a will; when therefore the intention is apparent upon the whole will taken together, the court must give such a construction as to support the intent of the testator, even against strict grammatical rules. And to effectuate his evident intention, words and limitations may be transferred, supplied or rejected. Marshall v. Hopkins, 15 East 309; Spark v. Purnell, Hob. Rep. 75; Montagu v. Nucella, 1 Russ. 165; Doe v. Micklem, 6 East 486; Fonereau v. Fonereau, 3 Atk. 315; Doe v. Hicks, 7 T. R. 437; Boon v. Cornforth, 2 Ves. Sen. 279; Doe v. Stenlake, 12 East 515.”
In Burton v. Collingwood, 4 Hag. 176, “A will containing this passage ‘Lest I die before the next snn, I make this my last will was admitted to probate, the court holding the disposition not contingent; and ad-heranee to it being shown by careiul preservation.” 1 Williams on Executors, 5th American edition 162.
I have before cited the case of Cody v. Conly, 27 Gratt. 313.
In The Goods of Martin, decided in 1867, 1 Court of Probate and Divorce 380. “A will in these words: ‘L W. M. being physically weak in health, have obtained permission to cease from all duty for a few days, and I wish during such time to be removed from the brig Apel-lenia, to the floating hospital ship Berwick Walls, in order to recruit my health ; and in the event of my death occurring during such timo, I do hereby will and bequeath,’ &c. Held, not to be contingent on the event of the testator’s death in the illness from which he was suffering when the will was made.” Sir J. P. Wilde said in this case “I am of opinion that this will is not conditional. I am satisfied, that the testator, when he executed, did not intend that it should be conditional.” In The Goods of John Porter, decided November term 1869,
Lord Penzance said in this case : “ I am obliged very reluctantly to refuse this application; but it is open to the parties to propound the will if they think proper. The court is bound to hold that this will is conditional. Looking at the cases already decided, and the principles therein laid down as to contingent wills, I find a distinction drawn. It is the common feature of wills, in respect of which this sort of question arises, that the testator therein refers to- a possible impending calamity in connection with his will; and the question arises, whether he intends to limit the operation of the will to the time during which such calamity is imminent. If the language used by him can by reasonable interpretation be construed to mean that he refers to the calamity and the period of time during which it may happen as the reason for making a will, then the will is not conditional; but if he refers to the calamity or the possible occurrence of some event as a reason for a certain disposition of his property, and mixes up the disposition of the property with the event so that one is dependent on the other, then the court must hold the will to be conditional. I must now determine within which class this will falls. In Roberts v. Roberts, 2 Sw. & Tr. 337, the disposition of the property was only to take effect on the happening of an event which did not happen, and the will was held by C. Criswell to be conditional. In Thorne’s Case, 4 Sw.
He then refers to Martin’s Case, 1 P. & D., to which reference has been made by me, and he says of it: “Here again an event, the probability of death, is given as a reason for making a will.” He then proceeds: “The question then is, whether the paper before me comes within the principles of these cases. I think it does not. If it had stopped at the end of the first sentence, I think it would have come within it. ‘Being obliged to leave England to join my regiment-should anything unfortunately happen to me whilst abroad; ’ but the testator goes on to say : ‘ I wish everything that I may be in possession of at that time to be divided/ &c. At what time? His death whilst abroad.” &c.
In the case of Strauss v. Schmidt, 3 Phillim. 209, decided in 1820, according to the .syllabus of the case it was held by Judge Nicholl, that “a recognition establishes testamentary papers which were conditional;” but from what I see of the case the recognition seems to have been by letter or letters in the handwriting of the deceased.
In the case of Skipwith et al. v. Cabell’s ex’r et al., Lee et al. v. Cabell’s ex’r et al., 19 Gratt. 758, it was held : “1st. Mrs. C., an old and very wealthy lady, after disposing by her will and two codicils of a large amount of her property, at the close of the second codicil says: ‘In
It seems that it is now an established principle, that while a person may make a conditional will, his intention todo so must appear clearly. Judge Moncure in the case of Cody v. Conly et al., in his opinion in that case (and his opinion seems to have been that of the whole court) says at pp. 320, 321 : “The cases on this subject show, that while a person may certainly make a conditional will, his intention to do so must appear very clearly on the face of the will; and if such an intention do not so. appear, the will must be regarded as unconditional. Indeed in some of the cases the form of expression was conditional, and yet the construction of the will was otherwise.” See also 1 Redfield on Wills 2d ed. 177, 178, also in The Goods of Dobson, Law Reports Courts of Probate and Divorce 88. In Lister v. Smith, 10 Jur. N. S. 107 (1874), 1 Redfield on Wills 2d edition, note 22, page. 171, 172, 173. Sir J. P. Wilde said : “on the other hand, if the fact is plainly and conclusively made out, that the paper, which appears to be the record of a testamentary'act, was in reality the offspring of jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the court should turn it into an effective instrument. And such is no doubt the law. There must be the animus testandi.”
In the case of Butler v. Butler et al. 3 Barb. Ch. 304, it was held, that in the construction of wills if the language of the testator is such that it may be
What was the motive or purpose of the decedent in executing the paper-writing in question in the case at bar, regarding him as a man of sound mind, and considering the evidence in chief of Mrs. French, taken by plaintiff, and the surrounding circumstances and the facts, of which the decedent is presumed to have known, to which I have before referred ? Can we conclude that the decedent jestingly executed said paper-writing, and handed it to his wife with directions to take care of it ? To do so would be to so determine without sufficient evidence of the fact, in my "humble judgment. The acts and verbal declarations of the deceased at the time, do not indicate anything like jest; and the circumstances, which evidently led to its execution, or were the reason therefor, were not such as would be likely to cause a sane man to indulge in a mere jest of that description with his wife distressed for his safety, which could not in fact have been considered by her' short of a gross insult, as well as a source of great mortification, for she is presumed to have known the law of descents and distribution as well as the decedent. Mrs. French swears that she thought her husband was in earnest, and to attribute to him the opposite, under the circumstances, would be unnatural.
Can we consistently and properly construe said paper to be conditional and contingent, that is to say, from the language employed in the said paper-writing and the surrounding circumstances and the facts which the decedent must havn known, that it was the intention of the decedent to do a silly, absurd and useless act, an act without meaning, that he had i?no reasonable purpose in view, for if it is conceded that the decedent’s purpose in
If we ascertain his intent in executing said paper-writing to have been to make an unconditional testament giving his property to his wife, who he indicated to be the chief object of his bounty, at his death, then we determine that the decedent in making said paper-writing did a reasonable act, such an act as a reasonable man might well and consistently do.
I apprehend that it cannot reasonably be maintained, that the deceased meant that the disposition of his property or the validy of the vdll should depend upon the manner of his death, to-wit: by drowning. Suppose the deceased had been killed that morning by lightning, or had been shot dead while in the act of crossing the river on that morning, could it be successfully maintained that the will was void, and • that the testator intended it should be void in case of his death on that morning in any manner other than by drowning? I humbly think not. Such a construction would be too narrow and contracted, and would in fact be preposterous in my humble judgment. The testator was on that morning about to undertake a perilous and dangerous passage across a deep river, and death to him by drowning was then naturally most prominent in his mind, and thus he doubtless used the words get drowned, by which he indirectly meant “die” or death in any form. I have found no case just like this, though some of the cases cited, where the will was held to be absolute, have some resemblance to it. But suppose that at 11 o’clock that morning the decedent had crossed the river safely,
In the light of some of the more recent English authorities and Virginia cases which I have cited, and the rules of construction applicable to such a case, I am of opinion, under the facts and surrounding circumstances, to which I have alluded, we may well and properly conclude in this particular case with its peculiar characteristics, that said paper-writing was not intended by the decedent to be provisional and contingent, but was intended by him to be absolute; that the language used by the decedent in the said paper-writing can in this particular case, with its peculiar surroundings, 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 that the will should be interpreted as though it read : “ Lest I get drowned this morning; or lest-1 die this morning.” It is no valid objection to carrying out the obvious intention of the testator, if it be not illegal or against good morals, that it is strange, or unnatural or absurd. But such a construction will, if possible, be adopted, as will uphold the will, and bring it as near reason and good sense as practicable. Rule 6, 1 Redf. on Wills, 2 ed., 433, 435. The same author at pp. 435, 436, same book, says: “ It is said in one case, ‘It is our duty to give effect to all the the words, without rejecting or controlling any of them, if it can be done by a reasonable construction; ’ and also ‘the construction of a will depends upon the intention of the testator, to be ascertained from a full view of every thing contained in the four corners of the instrument.. And the natural construction of the words will be
After patient and careful consideration of the whole case I am convinced in my own mind, that the decedent Seriously executed said paper-writing, and that it was his
For the foregoing reasons the decree of the said circuit court of the county of Hampshire, rendered in this cause on the 12th day of December, 1876, must be affirmed.
Although the said evidence of Mrs. French, given in her own behalf, seems to have been excepted to at the time it was taken in general terms, the question of her competency to testify in her own behalf on her cross-examination as to said communication, does not appear to have been brought to the attention of the court below, or passed upon by the court below, still the witness being incompetent to testify in her own behalf to said communications, it is not too late to make the objection in this court, especially as the ground of incompetency is one that could not have been removed by the defendant, it the objection had been brought to the attention of the court below, and that court had sustained the objection. There may be some exceptions to the general rule laid down upon the subject of exceptions to the deposition of a witness for incompetency ; but that question does not arise here.
According to the New York authorities, as far as I have seen them, it was competent for Mrs. French to testify in her own behalf, under the second paragraph of said section 23 of chapter 130 of the Code, to the conversation had by Miss Rebecca Swisher personally with the deceased, which she .heard, if said conversation was relevant and proper evidence in the cause. Simmons et al. v. Sisson et al., 26 N. Y. 264; Lobdell et al. v. Lobdell et al. 36 N. Y. 327, 333 and 334; Sanford, by, &c. v. Sanford, 5 Lans. (N. Y.) 486; Hilderbrant v. Crawford, Crawford a survivor, &c. v. Hilderbrant, 6 Lansing 502; Marsh v. Gilbert, 2 Redf. (N. Y., Surrogate) 465; Brague v. Lord et al., ex’rs 67 N. Y. 495. But under
It appears from the decree rendered in this cause, to which I have referred, that the court was of opinion that the said paper writing “was not conditional or contingent in its effect or operation, but. was an absolute testa-* mentary disposition of his estate, as such was recognized and referred to by the said testator after the date mentioned therein, doth accordingly adjudge” &c. It would seem from this that the court below gave some weight and consideration in its determination of the cause to the fact, that the testator recognized and referred to said paper-writing as his will; and this the counsel for the plaintiff insists was error.
But I have already ascertained and determined that the substantial parts of the said decree rendered in this cause are correct, excluding and without considering the evidence of Mrs. French giveu on her own behalf on her cross-examination, and also the deposition of Jiebecca Swisher and H. W. Stump as to the verbal declarations of the decedent made to each of them ; and the plaintiff is not injured by any errors of the circuit court in hearing the cause thereon and giving effect in its determination of the cause, in whole or in part, in any respect whatever, as the substantial parts of said decree are sustained and authorized from what otherwise appears in the cause, after rejecting the cross-examination of Mrs. French and the depositions of Miss Swisher and H. W. Stump as to the verbal declarations of the decedent W. T. French.
The said decree must therefore be affirmed with costs and $30.00 damages to the appellee.
Dissenting Opinion
dissented.
The question whether the paper signed and written by William T. French, dated March 7, 1872, was a con ditional will must be determined by the words of the will itself, construed by the light of the circumstances surrounding the testator when he wrote. The paper is in these words:
“Let all men know hereby, if I get drowned, this*508 morning, March 7, 1872, that I bequeath all my property, personal and real, to my beloved wife Florence. “Witness my hand and seal, 7th March, 1872.
“William T. FreNch.”
The only circumstances surrounding the testator when he wrote this will, which can throw any light on its meaning, are these: That he then had a wife, Florence, the defendant, and no children; that if he had died without making a will on the morning of March 7, 1872, when the will was made, she, as his sole heir and distrib-utee, would have got all his property, personal and real; that he was, when he wrote this paper, about to cross a river which was deep, and he might in crossing it be drowned.
There were no other circumstances surrounding the writing of this paper, which can possibly throw any light on the meaning of this paper. The decisions, which have been cited by my brother Haymond, show clearly that a person may make a conditional will. This is not controverted by a single case. But in order to make a conditional will, the intention of the testator to do so must appear very clearly on the face of the will.- Now on the face of this will the purposes of the testator to make the bequest of all his property, real and personal, to his wife conditional upon his being drowned that morning, is as clear and distinct as it is possible to make it by the use of the English language.
There are, it is true, cases which have gone even further and held, that where the language of the testator used in his will is such that according to their usual signification it would make the will conditional, still the court, if they can find in any part of the will, or in the surrounding circumstances under which it was written, anything which will enable the court to interpret the will as merely indicating the motive -which induced the testator to make this will at the time it was made, they will so interpret the will, and hold it not to be conditional.
Beyond this the courts have never gone; and in fact it
None of the cases cited by my brother Haymond, and none which I have been able to find, go farther than to hold that a will, conditional on its face, may be interpreted to be unconditional, when the court can find in other parts of the will, or in the surrounding circumstances under which it was made, reason to believe that the testator, though he used language which would, in ordinary signification, make his will conditional, nevertheless only meant to assign the motive which induced the testator to make this particular will at the particular time it was made.
All the cases do not go this far. But let us admit that to be the law ; and let us then apply it to the case before, us. The language of the will on its face makes it clearly a conditional will. But according to the law as laid down in the case most favorable to the views of the ap-pellee, if we can find in any portion of this will, or in any of the surrounding circumstances under which it was written, any reason to believe that the testator meant by the words “if I get drowned this morning, March 7, 1872, I bequeath all my property to my wife,” simply to indicate,.that the motive he had in making this will on the morning of March 7, 1872, whereby he gave all his property to his wife, was his apprehension that he might be drowned that morning, I admit there are deci-
In so doing wc would make the emphatic words “if I get drowned this morning, March 7, 1872,” to mean nothing. If this language cannot be construed to indicate the testator’s motive for making this will, they must be construed to make the will conditional, or they must be regarded as if they were not in the will; and this last alternative lias never been adopted by any court in any case, and cannot be without setting aside the testator’s clearly expressed will, and making another will for him.
It remains then to enquire whether by the words “if 1 get drowned this morning', March 7, 1872, J bequeath all my property, personal and real, to my wife,” the testator conld possibly have meant “as I may get drowned this morning, I therefore now make my will and give all my property, real and personal, to my wife.”
I think it is self-evident that this could not possibly be what was meant by the testator in using the words “it 1 get drowned this morning,” because in the. circumstances, which actually surrounded the testator, the fact, that he might get drowned that morning, could not possibly be any reason wliy he should then make a will, simply giving all his property to his wife. For the testator knew, if he got drowned that morning, that by the law his wife would get all his property, real and personal, This apprehension then that he might be drowned
If the Avill had made any other disposition of the testator’s property other than precisely that Avhieh the law then made, or had even merely named an executor, 1 can see clearly, that the apprehension that he might be drowned that morning might have been a good reason for making such a will. For his object then might have well been to make a different disposition from what he knew the law would do, if he Avas drowned that morning; or in case he made no different disposition of his property, but simply appointed an executor, this Avould have iurnished him a motive for making a will then, as if he were drowned that morning the only Avay in which he could name the person, avIio was to be his representative after his death, Avas by making his will. But he could have had no possible motive in making the Avill he did to avoid the consequences of his being drowned that morning ; for it Avould have avoided none, of these consequences.
We are therefore compelled to construe this will as a conditional will. And there is no possible way of avoiding this conclusion except by striking out from the Avill these emphatic words, “if I get drowned this morning March 7, 1872,” Avords, which it was obvious Avere inserted by the testator for a purpose, and which constitute a third of the testator’s Avhole Avill. It- is said however
■. It seems to me this would be exceeding the powers of any court. It would be clearly not interpreting the will, ■ but making a will for the testator. It would not be even professing to interpret the will, as it proposes to strike out of it words admitted to have but one clear meaning, and that too, a most important meaning. The fact that these words make the paper necessarily idle, can in this case only raise a suspicion, that it was not intended by the writer as his will, that it was not really testamentary; but intended by the testator at the time he wrote it to have no effect at all; a suspicion strengthened by its being written in pencil, which may be inferred from the defendant’s proving he was in the habit of
The testimony about what the testator afterwards said about this paper was of course not proper evidence to be considered in this case. Excluding this improper testimony, and it is in my mind very questionable whether the writer of this paper ever intended it to be regarded as his will. But in the view I take of the case this en-quiry is unimportant. Tf this paper had been in writing, and formally signed in the presence of attesting witnessess as the will of the testator, it would not have altered this case materially. It would then have been unquestionably the will of William T. French, when he made it, but in my judgment it would have clearly been a conditional will; and as-the condition, on which it was to take effect as a will, never arose, it can of course have no operation as a will.
Decree Affirmed.