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of a black art, and his pleas and demurrers, his in- record the same, and issue letters thereupon as distructions and exceptions, correspond to the penta- rected in the judgment. $ 1864. But the plaintiff is not

entitled to a judgment establishing a lost or destroyed gons and aspects, the houses and cadalabadra of old

will, as prescribed in this article, unless the will was Paracelsus and his mates. That this anticipation

in existence at the time of the testator's death, or was of increased authority is not purely theoretical may fraudulently destroyed in his life time; and its probe seen by a comparison of the public esteem in visions are clearly and distinctly proved by at least which the civil law is held in the countries under two credible witnesses, a correct copy or draft being its rule, with the total indifference of our own peo

equivalent to oue witness. $ 1865. ple to the common law as a distinctive system. It

A lost or destroyed will can be admitted to probate

in a Surrogate's Court; but only in a case where a is not that the civil law is better than the common

judgment establishing the will could be rendered by law, but it is presented in a better shape, a shape the Supreme Court, as prescribed in section 1865. $ 2621. more comprehensible by the laity. In a word, it is Before admitting a will to probate the surrogate must more scientific.

inquire particularly into all the facts and circumstan

ces, and must be satisfied of the genuineness of the The vulgar error that codification would reduce

will, and the validity of its execution. $2622. It it or appreciably affect the amount of litigation is

appears to the surrogate that the will was duly execuhardly worth notice. Litigation is the application ted, and that the testator at the time of executing it of law to facts, or, and more frequently, the decis- was in all respects competent to make a will, and not ion of disputes as to what are facts; our quarrel $2623. Before a written will is admitted to probate,

under restraint, it must be admitted to probate, etc. is upon the law itself. • We give the authority of

two at least of the subscribing witnesses must be prolaw to infinite doctors, infinite arrests, and as many

duced and examined, if so many are within

the State interpretations, yet do we find any end of the need and competent and able to testify. $ 2018. The death, of interpreting?” We believe wot. Let us then absence from the State, lunacy, or other incompetency have something definite to interpret. Let us en- of a witness, required to be examiued as prescribed in deavor to make of our profession not a mere em

this or the last section, or proof that such witness can

not, after due diligence, be found within the State or piric trade, carried on almost by rule of thumb, but

elsewhere, must be shown by affidavit, or other coma science, distinct, clear and consistent. For this petent evidence to the satisfaction of the surrogate, a code is the first requisite, and without it all must before dispensing with bis testimony. § 2619. If all remain in ever-changing confusion, and the term

the subscribing witnesses to a will are, or if a subscrib“ jurist” or jurisconsult,” as applied to an Ameri

ing witness whose testimony is required is dead or in

competent, by reason of lunacy or otherwise, to tescan or English lawyer, must be a ridiculous mis

tify, or unable to testify, or if such a subscribing wit. nomer,

ness is absent from the State, and the surrogate is satA. B. M. isfied that his testimony cannot, with due diligence,

be obtained by a commission, or if such a subscribing

witness has forgotten the occurrence, or testifies LOST WILLS.

against the execution of the will, the will may never1.

theless be established upon proof of the hand-writing

of the testator and of the subscribing witnesses, and AN N action to procure a judgment, establishing a will. also of such other circumstances as would be sufficient

may be maintained by any person interested in to prove the will upon the trial of an action. S the establishment thereof, where a will of real or per- 2620. sonal property, or both, has been executed in such a Every last will and testament of real or personal manner, and under such circumstances, that it might, property, or both, shall be executed and attested in under the laws of the State, be admitted to probate in the following manner: a Surrogate's Court, but the original will has been lost 1. It shall be subscribed by the testator at the end or destroyed, by accident or design, before it was duly of the will. proved and recorded within the State. Code of Civ. 2. Such subscription shall be made by the testator in Proc., $ 1861. If in such an action, the facts necessary the presence of each of the attesting witnesses, or shall to establish the validity of the will as prescribed in be acknowledged by bim to have been so made to each the last section are satisfactorily proved, final judg- of the attesting witnesses. ment must be rendered establishing the will accord- 3. The testator at the time of making such subscripingly. Code, $ 1862. Where the parties to the action tion, or at the time of acknowledging the same, shall who have appeared, or have been duly summoned, in- declare the instrument so subscribed to be his last will clude all the persons, who would be necessary parties and testament. to a special proceeding in a Surrogate's Court, for the 4. There shall be at least two attesting witnesses, probate of the same will, and the grant of letters each of whom shall sign his name as a witness at the thereupon, if the circumstances were such that it end of the will, at the request of the testator. 2 R. S., could have been proved in a Surrogate's Court, the p. 63, 40. final judgment, rendered as prescribed in the last sec- These are all of the statutory provisions which have tion, must direct that an exemplified copy thereof be any general bearing upon questions relating to the transmitted to the surrogate having jurisdiction, and probate of lost wills; and it will be observed that lost be recorded in his office; and that letters testament- wills must be proved in substantially the same manary, or letters of administration with the will an- ner as wills which are in court. nexed, be issued thereupon from his court in the same Before a decree can be made establishing a lost will, the manner, and with like effect as upon a will duly proved court must be satisfied that the statutory requirements in that court. $ 1863. A copy of the will so established, have been substantially complied with. or if it is lost or destroyed, the substance thereof, must Strict proof is not necessary in any case, unless there be incorporated into a final judgment, rendered as are suspicious circumstances, and in the probate of prescribed in the last section, and the surrogate must lost wills the proof is necessarily less strict than in

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cases where the will itself is in court. It is not to be and therefore it must be proved by the best evidence expected that the proof will be of the same formal the nature of the case will admit. In case the wite character. Redfield Sur. Prac. 224.

nesses be dead, there cannot probably be any express The proof of a lost or destroyed will proceeds upon proof; since at the execution of wills few are present the theory that it is not in existence, and cannot be but the devisor and witnesses. There,as in other cases, produced before the surrogate. Hence the case is one the proof must be circumstantial, and here are circumof secondary evidence exolusively. Everitt v. Everitt, stances : 41 Barb. 385.

1. These witnesses have set their names, and it must First, as to proof of the execution of the will. The be intended that they did it regularly. witnesses should be produced and sworn, if their tes- 2. One witness was an attorney of good character, timony can be secured. It is not indispensably neces- and may be presumed to understand what ought to be sary to show who all the witnesses to a will are, if the done, rather than the contrary. circumstances proven are sufficient to warrant a pre- And there may be circumstances to induce a jury to sumption of due execution. See the remarks of the believe that the witnesses set their hands in the prescourt in Butler v. Benson, 1 Barb. 538. If an attesting ence of the testator rather than the contrary.” This witness has forgotten all about the attestation, the will case was cited and approved in Croft v. Pawlet, 5 Str. may nevertheless be admitted to probate upon other 1109. satisfactory proof. Code, $ 2020. As far as his testi- Dau y. Brown, 4 Cow. 483, was a case where a lost mony is concerned, a witness might as well be dead will, executed before the revised statutes, was atas to have forgotten the transaction about which he is tempted to be proved. At that time three subscribing expected to testify; and a party might as well not witnesses were necessary. William L. Maroy, the law. know who a witness is, as to be unable to prove any yer who drew the will, could only recolleot the names thing by him when he is brought into court. The of two of the witnesses. No one was able to state who failure of witnesses to remember the circumstances the third witness was, and of course his signature was attending the execution and attestation of a will, shall not proved; yet the court held the will sufficiently not be allowed to defeat nor prejudice the rights of proved, and cited with approbation the case of Hands those interested in its probate. So the court say in V. James, supra. Woodworth, J., said the testimony the last case cited (Butler v. Benson) : “Get the best was all that could be expected under the circumstanevidence there is, and if there are no suspisious cir- ces, and it made a prima facie case. The counsel for cumstances the law will presume the instrument prop- the defendants say in the argument: “ The witnesses erly executed, particularly where the attestation may be entire strangers to each other, or subscribe at clause is full.' For a very instructive discussion of different times, and it would be hardly possible to this question, see the opinion of Ingraham, J., in Law- reach the strictness demanded of us. Who of the lerence v. Norton, 45 Barb. 448.

gal profession, when they write and attest wills, charge If the circumstances show that the statutory re- themselves with names? If not, and the will happens quirements were probably complied with, the will to be lost, it must be unavailable, unless the proof in should be admitted to probate.

the present instance be enough. The hardship upon if the attestation clause is full, and the signatures the heirs is no answer. The presumption is always in genuine, and the circumstances corroborative of due favor of supporting the will. Bond v. Seuwell, 3 Burr. execution, and there is no evidence disproving a com- 1773. Suppose the names obliterated or eaten out by pliance in any particular, the presumption may be rats, how can we know them? Yet it cannot be delawfully indulged that all the provisions of the statute nied that the will may, notwithstanding, be estabwere complied with, although the witnesses are un- lished." able to recollect the execution, or what took place at Fetherly v. Waggoner, 11 Wend. 599, is a case simithe time. A mere failure of memory on tho part of lar to Dau v. Brown. The court say: “The best evithe witnesses shall not defeat a will, if the attestation dence of which the vature of the case admits is comclause and other circumstances are satisfactory to petent for the purpose of showing a valid execution," prove its execution. In re Kellum Will, 52 N. Y. 517. and it was held that while the name of the third witIn this case a good deal of importance was attached to ness did not appear, the circumstances were suffithe fact that the will was drawn by an experienced cient to warrant the tinding of the fact of due execulawyer, accustomed to drawing wills, and convers- tion. ant with the provisions of the statute respecting their Brown v. Clark, 77 N. Y. 369, is an instructive case, execution.

though the will was in court. There the attestation The law raises certain presumptions respectivg the clause was full, and recited all the facts constituting a execution of wills.

Jue execution, and was signed by two witnesses. When The earliest case involving these presumptions that examined the witnesses were unable to state that they has come under my observation is Hands v. James, 2 signed the will as witnesses at the request of the teaComyn, Rep. 531 (1735-6).

tatrix, or that she at that time declared it to be her The attestation clause was as follows: “Subscribed will. The will was drawn by Mr. Clark, who was a and signed, sealed, published and declared by the tes- lawyer by profession, and was executed by the testatatrix as the last will and testament in presence of trix uuder his supervision. At the time of the prous," and then three witnesses set their names.


bate of the will Mr. Clark was dead, and no persons these witnesses being all dead, there was no proof that were living who were present at the execution, except the witnesses set their names in the presence of the the two witnesses. Yet the court held tbat the testatrix, but one witness was an attorney of good attestation clause, taken with other circumstances character. The court said: “The witnesses, by the and the fact that the will was drawn by a lawyer, statute of frauds, sought to set their names as wit- were sufficient to warrant the finding of due execution nesses in the presence of the testatrix; but it is not re- of the will. quired by the statute that this should be taken notice No unvarying rule as to the amount of proof necesof in the subscription to the will, and whether inserted sary to establish the execution of a will cau be laid or not, it must be proved. If inserted, it does not down, which is to control every case, as the circumconclude, but it may be proved contra, and the verdict stances of each case must differ from any other. Hence may be found contra. Then if not conclusive when it becomes the duty of the court to ascertain from all inserted, the omission does not conclude it was not so, the facts and circumstances, whether the instrument

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offered is established with reasonable certainty, and if involved the question of the proof requisite to estabit is, to receive the same. Rider v. Legg, 51 Barb. lish the due execution of a lost will, and it was there 260. The law lays down no stubborn, inflexi- held that if the witness had been able to state that the ble rule in this class of cases, but accepts the two or three names which he noticed at the foot of the best evidence that can be procured, adapted to paper, were subscribed to a full attestation clause, the nature of human affairs, human infirmities and showing that the paper had been executed with the casualties, which tends with reasonable certainty to formalities required by the statute of wills, that testiestablish the fact in controversy. Everitt v. Everitt, 41 mony, in connection with the other testimony adBarb. 385.

duced by the proponent, might have made out a prima Greenleaf, 2 Ev., $ 688 a, says, that if the will is facie case." The other testimony referred to conproved to be lost, it may still be admitteā to probate sisted entirely of declarations by the testator to the upon secondary evidence, as in the case of lost deeds effect that he had made a will. The witness who tesand other writings, putting lost deeds and lost wills on tified to having seen the will did not remember the the same basis.

names of only one witness, though he testified that In Jackson v. Vail, Wend. 125 (a case of a lost there were two or three pames at the foot of the padeed), it is said, that where it appears that there were per, under and at the left hand of that of the testator. subscribing witnesses to the deed, but it does not ap- The court also very properly held that the bare deolarpear, and cannot be ascertained who they were, the ation of the deceased, that the paper which the witness party seeking to prove the deed cannot be required to 8&w was his will, does pot tend to prove tbat it was produce the witnesses. The loss of the deed put it as executed as the statute requires. much beyond his power to call upon the subscribing It is not essential that the date should be shown to a witnesses, as to read the deed itself.

certainty. All that can be required is that the eviIt is true that subscribing witnesses to deeds are not dence shall be sufficient to enable the court to approxinecessary in tbis State, but the same rule is applicable mate to the date. Steele v. Price, 5 B. Mon. 58; Deakins in case of wills, as in case of lost deeds, where subscrib- v. Hollis, 7 Gill & Johns. 311; 2 Phil. Ey. 660. ing witnesses are necessary. Greenl. 1 Ev., $69, eto., If the execution of the will is satisfactorily proved, it discusses this subject, and lays down the general rule must then be shown that the will was in existence at the that proof of the instrument must be made by the time of the testator's death, or was fraudulently destroyed subscribing witnesses, but to this rule several excep- in his life-time. Code, $ 1865. tious are made, one of which is, that if the instrument A will is “fraudulently destroyed,” within the is lost, and the name of the subscribing witness is

meaning of the statute, where it is destroyed without unknown, the instrument may be proved without call- the intelligent consent of the testator, e. g., unless it is ing such witness. & 572.

destroyed by the testator himself, under undue influNo higher or stricter rule exists as to a lost will than

ence, and in belief of a fraudulent statement, made by as to a lost deed. By statute in several States, deeds one interested in his estate. Voorhees v. Voorhees, 39 must be attested and proved with the same formali- N. Y. 463; Timon v. Claffy, 45 Barb. 438, is on the same at

line; .

ritories, attesting wituesses are necessary to convey Wait

, 4 Barbs

. 25, where it was held that the destruc

tion of a will by the testator is not a revocation thereof, unless he intends thereby to revoke it, and where the testator is a lunatic, he can have no such intention. It is also held that if a man is incompetent to make a valid will, he is equally incompetent to revoke a will previously made.


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ances of real estate. In Arkansas, Delaware, Idaho,
Nebraska, Nevada, North Carolina, Pennsylvania,
Texas, Utah and Wyoming at least one witness is
necessary, and in Conuectiout, Florida, Georgia, Lou-
isiana, Maryland, Michigan, Minnesota, New Hamp-
sbire, Ohio, South Carolina, Vermout, Washington
Territory and Wisconsin two witnesses are necessary
to the valid execution of a deed.

Judge Nelson in Pelletreau v. Jackson, 11 Wend. 123,
discussing this question, says: “Where there is no
witness to the deed, or if there is, and he denies hav-
ing any knowledge of the execution, or the name of a
subscribing witness is fictitious, or the witness is in.
terested, or of an ipfamous character, or if dead, or
out of the jurisdiction of the court, and after diligent
inquiry, no proof of the handwriting can be made, or
if upon like inquiry nothing can be heard of the sub-
scribing witness, so that he can neither be produced,
por his handwriting proved; in all these cases the ex-
ecution of the deed may be established by proving the
handwriting of the party, or by his admission that he
executed it. And all these qualifications of the gen-
eral principles, as to the proof of the execution of in-
struments with subscribing witnesses, are in strict ob-
servance of another rule of evidence, namely, that the
best of which the nature and state of the case will ad-
mit must be produced, citing numerous authorities.
The declarations of the grantor may be received as
corroborative evidence of the execution and existence
of a lort deed. Kent v. Harcourt, 33 Barb. 491. Prob-
ably the same rule would apply in the probate of lost
wills, with some limitations as to time, etc.; and in
Steele v. Price, 5 B. Mon. (Ky.) 58, such declarations
were held to be proper, taken in connection with other
declarations, introduced to prove a non-revocation of

In re Russell, 33 Hun, 271, was a case in which was

MERCHANTS' NATIONAL BANK V. HANSON. 1. The plea of ultra vires is not available to defeat a recovery

by a National bank upon negotiable paper purchased

by it.

2. L., holding certain promissory notes payable to his own

order, transferred them to the plaintiff for value. The plaintiff afterward returned them to L. for collection, having made upon them indorsements directing payment to be made to L., or order, for collection on the plaintiff's account. L., receiving the notes for collection, indorsed them to defendant before maturity, for value. The defendant noticed the indorsements, which remained uncanceled when he purchased the notes, but made no inquiry, and no facts were communicated to him, except such as were implied from the 'indorsements. Held, that the indorsements were effectual as notice of the plaintiff's title, and that the purchase of the notes by the defendant, without inquiry, was in the absence of any explanation conclusive proof of bad faith, PPEAL from an order of the District Court, Wil

kin county,

che will.

C. E. & A. G. Otis, for respondent, Merchants' Nat. disregarded without affecting the result. The plaintBank, of St. Paul.

iff was entitled to recover, unless the defendant is to A. B. Matthews and Cole & Bramhall, for appellant,

be deemed as having taken the notes unaffected with Peter Hanson.

notice of the plaintiff's rights. The court declared the

indorsements sufficient to charge the defendant with DICKINSON, J. One Luce was doing business in

notice of whatever interest the Merchants' National dividually under the name of “The Bank of Brecken

Bank had in the notes, and refused to submit the quesridge." He had several notes payable to himself by

tion of the defeudant's bona fides to the jury. Whether name, or by the name of “The Bank of Breckenridge.'

this was error is the only remaining question to be conHe indorsed these notes, “Pay G. C. Power, or order,

sidered. for account and credit Bank of Breckenridge.

It is well established that negligence on the part of [Signed]

E. E. LUCE,”

au indorsee of negotiable paper, for value and before and sent them to the plaintiff bank with a letter re

maturity, respecting infirmities in the paper or the questing the latter to discount them, and place the

title to it, will not defeat the title of the purchaser or proceeds to his credit. The plaintiff retained the notes

his right of recovery, unless the circumslances are crediting the Bank of Breckenridge with their amount,

such as to convict him of mala fides. Goodman v. Har. less interest to the time of maturity, and advised Luce

vey, 4 Adol. & E. 870; Goodman v. Simonds, 20 How. of their action. The sum so credited was afterward

343; Freeman's Nat. Bank v. Savery, 127 Mass. 75, 79; paid. Before the maturity of the notes the plaiutiff | Magee v. Badger, 34 N. Y. 247; Hamilton v. Vought, 34 sent the notes to the Bank of Breckenridge for collec

N. J. L. 187. tion, having indorsed them as follows: “Pay Bank

We are of the opinion that the case conolusively of Breckenridge, or order, for collection, account of

shows the defendant to have acquired the notes, not Merchants' National Bank, St. Paul.

merely negligently, but in bad faith. The indorseF. A. SEYMOUR, Cashier.”

ments to the Bank of Breckenridge “for collection, Luoe receiving the notes, transferred them by in- account of Merchants' National Bank, St. Paul," upon dorsement before their maturity, with the indorse- their face indicated that the latter bank had, or at ments uncancelled upon them, to the defendant in least claimed to have, the title to the notes, and that payment of a precedent debt. The defendant noticed the Bank of Breckenridge (Luce) was its agent, with the indorsements when he received the notes, but authority merely to collect. Rock Co Bank v. Hollisasked no questions, and appears to have had no notice ter, 21 Minn. 385; National Bank v. Clark, 23 id. 263. of the plaintiff's rights respecting the notes, except as This assertion of title, as borne upon the notes themit is to be in ferred from what has been stated. The

selves, was so placed as to show that it was presum. defendant having refused to restore the notes to the ably the last indorsement made. It is true, the prior plaintiff, this action is prosecuted to recover their indorsement by the payee to Power, being restrictive, value.

did not show that the payee had parted with his title; Iu First Nat. Bank of Rochester v. Pierson, 24 Minn. but it was not necessary that the payee should have 140, this court decided that National banks were not indorsed the notes in order to transfer his title. Pease authorized to purchase promissory notes, in the ordi- v. Rush, 2 Minn. 107 (Gil. 89); Foster v. Berkey, 8 Minn. pary sense of the word “purchase," the transaction

351 (Gil. 310); Cassidy y. First National Bank, 30 Minn. not being a discounting of the paper, or a lending of 86. money upon the credit of it; and the defense of ultra

If Luce bad presented to the defendant notes not vires was sustained in an action upon a note so pur- thus indorsed, and had stated to him that a St. Paul cbased. Since that decision was rendered the act of

bank claimed to own the notes, and had assumed to Congress upon which it was based has come before the

constitute him, Luce, its agent, to collect them, a purSupreme Court of the United States for construction

chase on the property from Luce without further exNational Bank v. Matthews, 98 U.S. 621; National Bank

planation, and without inquiry would, if unaffected v. Whitney, 103 id. 99. The decisions of that court are by other circumstances, be palpably inconsistent with to the effect that the enforcement in favor of a bank good faith. The case before us not less conclusively of securities upon real property, which securities charges the defendant with mala fides. Luce assumthe bank had acquired without authority, could ing to transfer the notes in payment of his own prenot be opposed by the plea of ultra vires, but existing debt, presented them to the defendant bearthat it was intended by Congress that the con- ing indorsements, uncancelled and unexplained, which sequences of such violations of law should be only upon their face indicated that Luce had no right to such as might be imposed in proceedings insti- dispose of the property, but that it belonged to tuted against the bank by th government. This another. Such was the unmistakable import of the construction of the law of Congress is authoritative, indorsements. It was not to be presumed that the inand it is our duty to follow it. In doing so we neces- dorsements had been wrongfully or surreptitiously sarily overrule Bank v. Pierson, supra, as to the effect placed upon the notes. It was an extraordinary cirof the plea of ultra vires in such cases.

cumstance that Luce, if he was the owner of the paper Applying the principle established by these decis. should, when assuming to dispose of it as his own, sufjons to the case before us, it is not material whether fer such indorsements, impuguing his own title, to rethe transaction through which the plaintiff acquired main upon the paper unexplained. The defendant the notes was a purchase of the potes in the ordinary noticed the indorsements, but asked no questions. He sense of the word " purchase," or a discount of the testified in his own behalf, but no explavation or fact notes as a loan to the payee. In either case the plaint- is presented going to oppose the conclusion which iff's right as against this defendant would be the same. should be drawn from the circumstances which we That the plaintiff acquired the notes either as its ab- have stated. solute property or as security is conclusively shown by The defendant's purpose in acquiring the notes from the evidence. The defendant claims that the case Luce was, of course, to make collection from the shows a simple purchase of the notes by the plaintiff. maker for his own benefit. Having express notice by This may be conceded for the purposes of the case. the indorsements that Luce probably did not own the The special verdict of the jury, to the effect that the property, but that this plaintiff was the owner, be plaintiff discounted the notes for the benefit of the could not willfully disregard the apparent rights of the Bank of Breckenridge, is not inconsistent with their plaintiff, and by carefully abstaining from such ingeneral verdict in favor of the plaintiff, and may be quiry as the circumstances suggested, assert the right

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to defeat plaintiff's title under the claim of being an sonably held that the maker was simply expressing his
indorsee in good faith. His conduot in disregarding inducement to make it, however inaccurate the language
the notice, and forbearing to make inquiries, is inex- may be for that purpose if strictly construed; and un-
plicable except upon the assumption that he was re- less the words clearly show that it was intended to be
gardless of the plaintiff's appareut rights, and willfully temporary or contingent it will be upheld. In this in-
abstained from inquiry lest it should confirm the fact stance if the testator, by the words he used, referred
of which the indorsements notified him, and he should to the possibility of his accidentally dying from home
thus be unable to so acquire the notes that he might as a reason for making the will, then it must be main-
protect himself against the plaintiff's superior right. tained; but if he intended by them to show that he
This was not merely wegligence concerning his own in- was then making only a temporary or conditional dis-
terests or the rights of others, but mala fides. The position of his property it must fail, because the event
proof of such mala fides resting in the circumstances named never happened.
detailed is unopposed by any fact going to support a An unexpressed intention, however strongly we may
contrary conclusion, and the court did not err in de- suppose it to have existed, cannot be enforced; but
terminiug the matter as a conclusion of the law. Jones upon the other haud, a will cannot be allowed to fail
v. Gordon, L. R., 2 App. Cas. 616; 20 Moak Eng. 127; upon slight indications that the testator intended it
National Security Bank v. McDonald, 127 Mass. 82; Na- to be conditional. The end however to be assiduously
tional Bunk of Com. v. Law, 127 id. 72; Fowler v. sought is the intention of the testator; and all rules
Brantly, 14 Pet. 318.

must be subordinated to it.
The order denying a new trial is affirmed.

A brief review of adjudged cases may also serve to bring us to a proper conclusion, although each case in

volving the construction of an instrument must neoWILL-CONDITIONAL.

essarily depend upon the particular language used;

and we have been unable to find any exactly similar KENTUCKY COURT OF APPEALS, FEB, 28, 1885. case.

In Parsons v. Lanoe, 1 Ves. Sr., 190, the words, “If I LIKEFIELD V. LIKEFIELD.

die before my return from my journey to Ireland," A testator made his will, in which he provided that "if any

eto., were held to constitute a contingent will, and an accident happen to me that I die from home, my wife

inoperative one, because the maker returned home.

“In case I die before I join my beloved wife," etc., shall have every thing." He died at home many years

shared a like fate. Sinclair v. Hone,6 Ves. Jr. 607. afterward, having preserved the will, and read it within a

In Todd's Will, 2 W. & S. 145, the testator had in year of his death. Héld, that his dying away from home

view a certain journey,and the language used was: “My was not a condition precedent, and that the wife was entitled to the estate under it.

wish, desire and intention now is that if I should not

return," eto.; and the will was held to be conditional. PPEAL from Jefferson Common Pleas Court. AP

Also in Massie v. Griffin, 2 Met. (Ky.) 364, where the

will was made while the testator was on a visit in Woolley & Buckner and 0. A. Wehle, for appellants. Missouri, and he willed the notes and accounts he held

on his brothers to them in case he never returued. Elliott & Hemingray, for appellee.

Also in The Goods of Robinson, L. R., 2 P. & D., 171, Holt, J. A paper wholly written by William A. wbere the words were: “In case any thing should Likefield, and worded as follows, is in question as his happen to me during the remainder of the voyage last will by this appeal, after having been probated as from hence to Sicily and back to London, that I give such by the Jefferson County Court, aud its judgment and bequeath,” etc. sustained by the Jefferson Court of Common Pleas: In Maxwell v. Maxwell, 3 Met. (Ky.) 101, the words

“LOUISVILLE, Jan. 14, 1859. were: “If I never get back home I leave you every "If any accident should happen to me that I die thing I have in the world.” In this case the testator from home, my wife, Julia Ann Likefield, shall have was away from home when the will was made; he had every thing I possess, the house and lots and the just escaped from a steamboat disaster; the navigamoney that is due to me, and for her to hold it as her tion was peculiarly dangerous at the time, and the nec

essary continuation of his journey homeward con tin“WM. A. LIKEFIELD." ued the danger; and it was plain from the entire inHe died at home on March 28, 1881, leaving the ap

strument (a letter) that it was intended to be operative pellee as his widow, but uo children, they having pre

ouly during his absence upon that occasion. viously died. The testimony shows that the decedent,

In Dougherty v. Dougherty, 4 Met. (Ky.) 25, the lanabout the date of the above writing, occasionally made

guage was: “As I intend starting in a few days to the steamboat trips upon the Ohio river as a watchman;

State of Missouri, and should any thing happen that I that he and the appellee lived happily together as hus

should not return alive, my wish is,” eto. band and wife for over thirty years; that he kept the

It will be noticed in all the above cases and in others paper in contest in a small tin box; that in the latter

not now at hand, where the will has been held to be part of the year before his death, and in the presence

conditional, that a specifio contingency is named, of his wife, he examined his papers, including it; and

and is either confined to a time certain or a particular after reading it over replaced it in the box and di

event. rected her to take care of it.

In this respect they are clearly distinguishable from His brother and sisters and the children of a de- the case now presented. The will in this instance fixes ceased brother now contend that it was a contingent

no limit or time, as during a particular journey, or for will, and never became effective, as he died at home;

a particular length of time. No specific time or parthat the words “ If any accident should happen to me

ticular event is named. It refers to no particular that I dio from home's constitute a condition; while expected calamity, and the words are general in their upon the other hand the widow urges that they were

character; and this fact leads to the conclusion that only used to give a reason for making the will.

the testator, who was evidently not an educated man A few general observations may aid in the solution or an adept in writing such instruments, did not inof the question. The rule is that courts will not in

tend the disposition of his estate to depend upon cline to regard a will as conditional if it can be rea

whether he died at or away from his home.


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