The daily clarion. [volume] (Meridian, Miss.) 1863-1866, 1866-03-24

Elicit.
This is an appeal from the Probate Court
4 OF Franklin county.
Inc appellants presented their petition II
contest the validity of a paper admitted tC
PROBATE as the last will and testament of d
n: Farker, deceased, and thereupon an issue
| ol de0'sdrat rel non was made up, and tried
De1ore jury in said court The alleged tes
1amentary paper was letter from the de-
ceased 10 his wife, the female appellee, in
the course of which the following Language
Is Is USED, to'wlt: But we do not know about
these things and it is we'll enough to arrange
them before hand, and if l never get back
70 you' want all l have to be yours" The
| deceased was at the time a soldier in the
army OF the Confederate States, and it was
;ldllitleu that the paper offered was in his
handwriting and was written at Hender-
son, tennessee, on or about the 18th of March,
Ioo2, and mailed to his wife on that day, and
afterwards received by her. and that he was
over twenty-one years of age, and a resilient
OF rankin county. 1t was also admitted
that previous to his death he got back to his
wife, and died at home in said county, and
was with his wife at the time of his death.
1t was moreover proved by witnesses that
he reached home about the 9th or 9TH
of May, 1862, in feeble health, but in sound
mind, and that his wife met him at Brook
haven, and accompanied him from thence to
his home, distance of about twenty miles,
where he died.
The appellees were permitted to prove,
after objection, that while absent in the
army, both before and after the 18th of
March, 1862, the deceased had several times
expressed his intention that his wife should
have all his property after his death.
1t is contended on behalf of the appellants
that this will was contingent, depending
upon the event of the testator getting back
to his wife, and that as he did so get back,
the will can have no effect, but is void
This proposition seems to be clearly eStab-
lished by the authorities.
In Parsons VS.. Lance, Vesey, sen. 1S9
where the will was i'll the following form ::
If die before my return from my journey
to Ireland, that my house and land at Far
ley Hill be sold, &c" and the testator re-
turned from his journey to Ireland, Lord
Chancellor Hardwicke held that it was
merely "a provisional contingent disposition
and consequently no part thereof was in
tended to take effect, but in the event of his
dying before his return, in which view it
was made" There was proof in that case
that the testator kept that will by him; il
did not appear that he made any other, and
he spoke to his friends of will, showing he
dld not intend to die intestate of which he
expressed some deteStatiOn. But the Lord
Chancellor said collateral or paroI proof
cannot be taken into consideration, which
would be dangerous, and what the court
since the statute of frauds is not warranted
10 do; Tor nothing will set it up but some
act done by him after that event, to repub-
llsh the will, or defeat the condition"
In Sinclair VS.. Hone g. Vesey, COZ the tes-
tator, residing with his wife in the island of
Dominica, and intending to make a voyage
TO England, took leave of his family, aud
Went TO the place whence the packets sailed
Tor England, and while there, in the hourly
expectation of embarking, he made cod
lcIl to his will, as follows: "In case l die
before join my beloved wife, Augusta Sin
clair, leave her all my property &c. The
packet accidentally sailed without him, and
he returned to his home, where he remained
with his family until the ensuing year, when
he carried them to England, and subsequent
ly went abroad, and died at Lisbon. 1t was
argued there by very eminent counsel, as it
has beeu here, that this was not condi-
tlonal, but absolute disposition by man
loreseelng the event of his not joining his
wife again, and that the construction might |
be, lest he should never join her. But Sir
William Grant, the Master of the Rolls |
SAID, That would be infinitely too violent |
/ construction The words are words of as |
positive and express condition as can be |
The question is only, whether a contingent |
" exists or.not; and / am of opinion there
vas condition and contingency" And he |
leld that the condition had happened by
he return of the testator under the circum-
stances and that the codicil therefore did |
lot take effect.
In the case of TOdd's will, Watts, g.
sergeant, l45, the will, made in contempla-
ION OF journey, was as follows, My wish,
ieslre and intention now is, that if / should
lot return, (Which | will, no preventing
'rovidence), what / own shall be divided as
nj " NI,..K
lealth, but able to attend to business, and
lied about a month after. The Court held
he will to be provisional and not intended
o serve IN the event of his death at home
md refused to admit it to probate.
Ihe same course was pursued in the Su-
reme Court of Maryland, in the case of
Wagner rs. Mcdonald, Har. & Johns
46 The words of the testamentary paper
7ere, IF should not come to yon again,
ny son will pay, &c. The writer went to
.entucky, and returned, and lived several
'eeks after, and it was held that the paper
)uld not be admitted to probate as his will.
LomaX on Exr's, 10 l, Williams on Exr's
%. Duppa rs. Mayo, l Saund. r., 27S q,
ote d.
These authorities are sufficient to sho W
lat the precise question involved in this
Use has undergone repeated and thorough 1
veStISatIon by courts entitled to the high :
t respect, and ought to be considered de-
sively settled The condition is plainly
lpressed, There being no latent ambigu-
y, the intention is to be collected from
lie language employed, and that language
unequlvOcal. The event having hap
ned upon which the existence and opera
On of the testamentary disposition de- /
nded, the will became imperative and
nd and ought not to have been admitted
probate. o
There is no sound principle upon which fo
e testimony in regard to statements made
the deceased while absent in the army,
d before his return to his home, as to his
tention that his wife should have all his
operty after his death, could have been
mitted to go to the jury. They were not
en- testamentary words as could be es-
ollshed as nuncupative will, and no at
npt appears to have been made to give TO
en- that effect.
| he statements were not made with any
erence to the paper offered for probate, for
2 wltpess states that he knows nothing
out tpat and does not know when, where
under What circumstances it was written
q even II made with special reference to
they would not be competent as evidence
contradict, add to, explain, or in any man.
: control or affect the construction of the
ltten instrument. Whether that instru-
mt was conditional and eventual, or not,
pended upon its terms, and it wOuld not
ltferent intention from that which the
guage imports
'or can 1t be seen what possible bearing
condition of the mind of the deceased NH
the time OF his return home, and subsp -
Entity, whether sound or unsOund, could
'e mad upon the case. If sane, he might
e made another will; if insane. he could To
1t appears that he was perfectly sane.
competent to transact any business If
inference could be drawn from this fart LII
elation to his omission to make another
|, the most obvious conclusion would he Pc
he Intentionally abstained from doing L
But the evidence was irrelevant and ADJ
ht to have been excluded.
esldes these errors in the admission of
lmony, the court erred in refusing to
rye the jury as requested by the appel. "
$, as follows, to-wit: IF the iury he
e, from the evidence, that after WRITING
letter in question, d. H. Parker. the wri.
did get back to his wife, they must find CO
rdlct against the will"
ne construction, and effect of will, or
T writing, are questions of law to be de-
q by the court, and are not to be left as H
fers OF fact to the determination of the pare
The only questions for the iurv were ton
ther the paper was written by the de- ~l
ed, and whether the event uDor xrb;oL pure