Case of Todd's Will

The opinion of the Court was delivered by Gibson, C. J. No text-writer seems to have distinguished between a condition attached to a particular testamentary disposition, and a condition attached to the operation of the instrument. But in Parsons v. Lanoe, (1 Vez. Sr. 191), Lord Hardwicke said without hesitation that he would not require an authority for such a distinction, and that a paper subject to a condition ought not to be admitted to probate after failure of the contingency on the happening of which it was to have taken effect. Why should it be proved as a will, when it could not have the effect of one ? In that case the words “ I make my will in manner following: If I die before my return from my journey to Ireland,” &c., were held to make the whole contingent, chiefly, it would seem, because the words “ in manner” were deemed equivalent to the words, “on condition.” And in Sinclair v. Hone, (6 Vez. 608), where the words were, “ In case I die before I rejoin my beloved wife,” it was thought the whole codicil was intended to depend on that event, because the whole property was devised to the wife, except a portion of it dependent on her interest. But an intention to make the operation of the paper eventual, is not near so apparent in either of those cases, as it is in the one under consideration. The testator, in contemplation of a journey to the state of Indiana, for the amendment of his health, then in an advanced state of decline, [147] begins an informal testamentary paper addressed to his friend and intended executor in these very distinctive words: “ 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.” He then proceeds to give his property in reference to the state of his family as it then existed; but it is evident, not only from the expressions quoted, but from his declared and anxious uncertainty in regard to the suspected pregnancy of his wife, that the arrangement of his affairs was intended to be provisional, and not to serve in the event of his death at home, having had an opportunity to make a more considerate one when the question of his wife’s pregnancy should be settled. His intention, therefore, is as clear as his power to carry it into effect. Sentence of the court below affirmed.