Eaton v. Brown ( 1902 )

Mr. Justice Morris

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.

1. The second of these assignments of error we must dispose of summarily with the statement that there is nothing in the record before us to show that the question of the admission of testimony to qualify or explain the paper was raised in the court below or was decided by it. There is no offer in the record to adduce such testimony. The only reference which we find to anything of the hind is the statement contained in the amended petition to the effect that, during the last two or three months of her life, the deceased had often spoken of having made her will and that it was among her papers; and that, during the last two or three years of her life, she had often spoken of its being her intention to leave her property to the appellant Eaton and to the Methodist Church at Bloomingburgh. But these allegations are all denied by the answer; and, as we have said, there was no offer of proof to sustain them. Moreover, it is not apparent to us how, in the face of the elementary rule of evidence that oral testimony is not admissible to vary or contradict the terms of a written instrument, any such statements as are here indicated could be received to explain away and to nullify the express language of the paper writing before the court.

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 cannot be sustained as now valid and operative. If the words used in it as a preamble do not constitute a condition upon wbicb the document is to become effective, we find it impossible say what words could have been used for the purpose. The statement is that, if she does not return from the journey on which she was then about to enter, the paper writing was then to be taken as her last request; that is, as her last will and testament. The converse of the proposition is, that, if she did return, then it was not to be her last will and testament. Language could not well be plainer than this. And as she did return, it is very clear that the paper thereafter ceased to have any effect as a testamentary disposition of her estate.

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.

The conclusion reached by the court below is sanctioned by the apparently unanimous current of legal authority in England, and by the great preponderance of decision in America. With great industry, learning and ingenuity the principal cases on the subject have been cited and considered in the brief filed on behalf of the appellees in this case. Among them are Parsons v. Lanoe, 1 Ves. Sr. 190; Sinclair v. Hone, 6 Ves. Jr. 607; In re Winn, 2 P. & D. 47; Roberts v. Roberts, 8 Jur. (N. S.) 220; In re John Porter, L. R., 2 P. & D. 22; In re Robinson, L. R., 2 P. & D. 171; Lindsay v. Lindsay, L. R., 2 P. & D. 449; In re Ward, 4 Haggard, 176; In re Todd, 2 Watts & Sergeant (Pa.) 145; Morrow's Appeal, 116 Pa. St. 440; Wagner v. McDonald, 2 Har. & J. 346; Maxwell v. Maxwell, 3 Metc. (Ky.) 101; Dougherty v. Dougherty, 4 Metc. (Ky.) 25; Robnett v. Ashlock, 49 Mo. 171; Magee v. McNeill, 41 Miss. 17. See, also, Jarman on Wills, Vol. I, p. 17; and Schouler on Wills, p. 285.

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 In re John Porter, L. R., 2 P. & D. 22, where the words used were: “ Should anything unfortunately happen to me while abroad, etc., etc.,” and which were held to make the will conditional, the distinction was pointed out between words of condition and words which simply express the reason and the occasion for making the will; and it was stated that, if by .any reasonable interpretation, the language can be construed as referring to the apprehended occurrence as merely the reason for making the will, it should be so construed, and the will should not be regarded as conditional. And the current of modern authority, as claimed on behalf of the appellant, is strongly in favor of this proposition. In pursuance of this view the cases were decided of Bradford v. Bradford, 4 Ky. L. Rep. 947; Likefield v. Likefield, 82 Ky. 589; French v. French, 14 W. Va. 458; In re George Thorne, 4 Sw. & Tr. 36; In re Dobson, L. R., 1 P. & D. 88; In re Lindsay, 2 Bradf. (N. Y.). 204; Thompson v. Connor, 3 Bradf. (N. Y.) 366; Shipwith v. Cabell, 19 Gratt. 758; Cody v. Conly, 27 Gratt. 313. Of these probably the cases of Likefield v. Likefield and French v. French are the strongest in support of the appellant’s contention.

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 to the making of the will only, and not that the disposition of his property should depend merely upon the place of his death.”

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 paper writing there at issue “ evidently embodied what the testator wanted in any event to be done with his property.” The cases of Likefield v. Likefield and French v. French were cases in which the wills were made by husbands in favor of their wives, a disposition which they would probably have made of their respective estates in any event; and it is evident in both cases that the testator contemplated the propriety of making wills in view of the possible nearness of death, and did not intend the testamentary disposition to be specifically contingent upon the issue of the journeys upon which they were at the time about to enter.

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 the matter of costs is mainly in the discretion of the court below in proceedings in the probate court, although it may be noticed incidentally on appeal (Canter v. Insurance Co., 3 Pet. 307; United States v. The Malek Adhel, 2 How. 210; Tuohy v. Hanlon, 18 App. D. C. 225, 230, and cases there cited), we cannot assume that the decision was erroneous in this regard, when we find no other reason to disturb it. Nor would we have deemed it proper to disturb it, if the decision had been the other way, and the court had awarded the costs to be paid out of the estate.

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.