Case of Todd's Will

An instrument, limited by a condition as to its operation, can not be admitted to probate as a will after 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.

APPEAL from the Register’s Court of Westmoreland county, which sustained the caveat, and rejected the paper offered as the last will and testament of George Todd deceased, which was as follows: “ Stewartsville, 25th of May 1840. “ To Benjamin Byerly, Esq. “ 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: $100 to my father, together with my bookcase and one silver watch with the initials of my name on it, if I own it; if not, the best that I own, if I have any. My mother gets my horse, saddle, bridle, sleigh, and all my wearing apparel, to dispose of as- she thinks proper; or, if she wishes it, the horse and forty-five dollars in gold, if I should have it. Each of my brothers and sisters, fifty dollars. My books and documents to be divided as impartially as you can among to each one mentioned in this paper to whom any other thing is left. The remainder I leave to Sophia, my wife, &c. &c.” Then follow some further provisions in anticipation of the birth of a child after his death. The testator returned to Stewartsville in bad health, but able to attend to business, and died about a month after. The question was, whether the paper could be admitted to probate. The Register’s Court (White, President) determined that the instrument ought not to be admitted to probate. contended, that in Pennsylvania a will cannot depend upon any other contingency than the death of the testator. It must be good and valid before his death, or void; if good, it can only be avoided by a revocation. If the instrument may be a will, or no will, dependent upon a condition, such condition may be put in the shape of a contingency, which will depend upon the uncertain testimony of witnesses. It is to avoid this that parol revocations and alterations are provided against. No case can be found which recognises a conditional will, except that in 1 Fez. 191, where the Lord Chancellor says, there is no authority for such a doctrine, and in that case he confines it to a condition annexed to a legacy or devise. There is no necessity for establishing the principle contended for on the other side, for the testator has it in his power at all times to alter any will he has made. He cited Swinburne on Wills 532; 2 Eq. Cas. Ab. 761; 2 Lord Raym. 1282; 6 Fez. Jr. 608. argued that the peculiar phraseology of the will exhibited clearly the intention of the testator that the instrument should be his will or not his will, depending upon the contingency of his return. This was a condition which violates no legal principle, and therefore one which the testator had a right to make. Lord Hardwicke, in the case in 1 Fez. 191, 243, says, the principle is so clear, that it requires no authority to support it.