Magee v. McNeil, 41 Miss. 17 (Miss.)

Ellbtt, J.,

delivered the opinion of the court.

This is an appeal from the Probate Court of Franklin county.

The appellants presented their petition to contest the validity

of a paper admitted to probate as the last will and testament of D. H. Parker, deceased, and thereupon an issue of devismit vel non was made up, and tried before a jury in the said court. The alleged testamentary paper was a letter from the deceased to his wife, the female appellee, in the course of which the following language is used, to wit: “ But we do not know about these things, and it is well enough to arrange them before hand, and if I never get back to you, I want all I have to he yours.” The deceased was at the time a soldier in the army of the Confederate States, and it was admitted that the paper offered was in his handwriting, and was written at Henderson, Tennessee, on or about the 13th March, 1862, 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 resident of Franklin county. It 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. It was, moreover, proved by witnesses that he reached home about the 6th or Ith of May, 1862, in feeble health, but in sound mind, and that his wife met him at Brookhaven, and accompanied him from thence to his home, a 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 13th of March, 1862, the deceased had several times expressed his intention that his wife should have all his property after his death.

It 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, blit is void. This proposition seems to be clearly established by the authorities.

In Ponsons v. Lanoe, 1 Vesey, Sen. 189, where the will was in the following form: “ If I die before my return from my journey to Ireland, that my house and land at Farley Hill be sold,” &c., and the testator returned from his journey to Ireland, Lord Chanceller Hardwicke held that it was merely a “provisional contingent disposition, and consequently no part thereof was intended 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 ; it did not appear that he made any other; and he spoke to his riends of a will, showing he did not intend to die intestate, of which he expressed some detestation. But the Lord Chancellor said “ collateral or parol proof cannot be taken into consideration, which would be dangerous, and what the court, since the statute of frauds, is not warranted to do ; for nothing will set it up but some act done by him after that event, to republish the will, or defeat the condition.”

In Sinclair v. Hone, 6 Vesey, 607, the testator, residing with his wife in the island of Dominica, and intending to make a voyage to England, took leave of his family, and went to the place whence the packets sailed for England, and while there, in the hourly expectation of embarking, he made a codicil to his will, as follows : “ In case I die before I join my beloved wife, Augusta Sinclair, I leave her all my property,” etc. The packet accidentally sailed without him, and he returned to his house, where he remained with his family until the ensuing year, when he carried them to England, and subsequently went abroad, and died at Lisbon. It was argued there by very eminent counsel, as it has been here, that this was not a conditional, but an absolute disposition, by a man foreseeing 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 a consti'uction. The words are words of as positive and express condition as can be. The question is only, whether a contingency exists or not; and I am of opinion there was condition and contingency.” And he held that the condition had hap* pened by the return of the testator under the circumstances, and that the codicil therefore did not take effect.

In the case of Todd’s will, 2 Watts & Sergeant, 145, the will, made in contemplation of a journey, was as follows: “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,” etc. The testator returned in bad health, but able

to attend to business, and died about a month after. The court held the will to be provisional, and not intended to serve in the event of his death at home, and refused to admit it to probate.

The same course was pursued in the Supreme Court of Maryland, in the case of Wagner v. McDonald, 2 Har. & Johns. 346. The words of the testamentary paper were : “ If I should not come to you again, my son will pay,” etc. The writer went to Kentucky, and returned, and lived several weeks after; and it was held that the paper could not be admitted to probate as his will. 1 Lomax on Exrs. 19; 1 Williams on Exrs. 163; Duppa v. Mayo, 1 Saund. R. 278 — Note 4.

These authorities are sufficient to show that the precise question involved in this case has undergone repeated and thorough investigation by courts entitled to the highest respect, and ought to be considered decisively settled. The condition is plainly expressed. There being no latent ambiguity, the intention is to be collected from the language employed, and that language is unequivocal. The event having happened upon which the existence and operation of the testamentary disposition depended, the will became inoperative and void, and ought not to have been admitted to probate.

There is no sound principle upon which the testimony in regard to statements made by the deceased while absent in the army, and before his return to his home, as to his intention that his wife should have all his property after his death, could have been admitted to go to the jury. They were not such testamentary words as could be established as a nuncupative will, and no attempt appears to have been made to give to them that effect. The statements were not made with any reference to the paper offered for probate, for the witness states that he knows nothing about that, and does not know when, where, or under what circumstances it was written. And even if made with special reference to it, they would not be competent as evidence to contradict, add to, explain, or in any manner control or affect the construction of the written instrument. Whether that instrument was conditional and eventual, or not, depended upon its terms, and it could not be competent to establish by

parol evidence a different- intention from that which the language imports.

Nor can it be seen what possible bearing the condition of the mind of the deceased at the time of his return, home, and subsequently, whether sound or unsound, could have had upon the case. If sane, he might have made another will; if insane, he could not. It appears that he was perfectly sane, and competent to transact any business. If any inference could be drawn from this fact in relation to his omission to make another will, the most obvious conclusion would be that he intentionally abstained from doing so. But the evidence was irrelevant, and ought to have been excluded.

■ Besides these errors in the admission of testimony, the court erred in refusing to charge the jury as requested by the appellants, as follows, to-wit: “If the jury believe from the evidence that after writing the letter in question, D. • H. Parker, the writer, did get back to his wife* they must find a verdict against the will.”

.The construction and effect- of a will, or other writing, are questions of law to be decided-by the court, and are not to be left as matters of fact to the determination of the jury. The only questions for the jury were, whether the paper was written by the deceased, and whether the event upon ■ which its existence depended, had happened. It was for the court to determine, by proper instructions to the jury, whether .-the paper was testamentary in its character, and whether it took effect absolutely, or only on a condition.

The second, third, and fourth instructions given on behalf of the appellees, were in conflict with the views expressed in this opinion, and were therefore erroneous.

■ The judgment of the court below, establishing the paper in controversy as the last will and testament of Parker, will be reversed, a new trial- granted, and the cause remanded.