tator dying before his return from the journey in contemplation, that it could not be shown, in regard to such a will of real estate, under the statute of frauds, that the testator continued to treat it as his will, after his return, as that would be to set up the will by parol, which could only be done properly by a reexecution, in conformity with the statute.42 And the same rule has been followed by a considerable number of recent English cases.43 Thus, where a master mariner being about to sail from Liverpool to Wales, made a will, which contained the following clause: "Should any thing happen to me on my passage to Wales, or during my stay there, I leave all my goods," &c. The testator returned from that voyage, and evidence was offered of his recognition of, and adherence to the will, subsequently; but it was held, that the will was conditional, and that no evidence could be received to show that the testator intended it to operate, after the time limited by the condition had expired. And in another case,44 the testator stated, in the paper claimed to be his will, that he was about to embark for foreign parts, and in case of his decease during his absence being fully ascertained and proved, he made certain bequests. He returned from that voyage, and subsequently left England, and was supposed to have died in Australia. It was held the paper was conditional, to operate only if the testator died upon his then ⚫ intended voyage; and that, as he returned from it, the will had no further effect. 18. There is a very recent case in the English Court of Probate, where the testator wrote his will in contemplation of a long journey, thus: "In contemplation of a long journey, should God not permit me to return to my home, I make this my last will and testament." The deceased made the journey and re 12 Parsons v. Lanoe, 1 Vesey, 189; s. c. Ambler, 559; Sinclair v. Hone, 6 Vesey, 608. 43 Roberts v. Roberts, 8 Jur. N. s. (1862), 220. * In re Winn, 7 Jur. N. s. 764 (1861). turned home, and subsequently executed the will, by acknowl edging his signature in the presence of two witnesses, and it was held, that the event having happened before the will was executed, it ceased to be conditional, and must be admitted to probate.45 In re Cawthorn, 10 Jur. N. s. 51 (1864). This seems to be the latest declaration of the present state of the English law as to conditional wills, required to be executed before witnesses. Wills of personalty, executed before 1838, which might be validly done by parol, when made dependent upon similar contingencies, were often upheld upon the ground that the testator continued to recognize the instrument, as his will, until the time of his death. Strauss v. Schmidt, 3 Phillim. 209; Ingram v. Strong, 2 Phillim. 294; Forbes v. Gordon, 3 Phillim. 625. It was held, in Wagner v. M'Donald, 2 Har. & J. 346, that a paper written in the form of a letter, thus: "If I should not come to you again, my son shall pay," &c., evidence being given that the writer went to Kentucky, and returned home, and lived several weeks after; as the writer had returned before his death, the paper could not be admitted to probate. See also, Broadus v. Rosson, 3 Leigh, 12. The expression, "lest I die before the next sun, I make this my last will," held not to create a contingency affecting the instrument; adherence being shown by its careful preservation. Burton v. Collingwood, 4 Hagg. 176; In re Ward, 4 Hagg. 179. In Todd's Will, 2 Watts & S. 145, it was held, that an instrument, limited by a condition as to its operation, becomes wholly inoperative after a failure of the condition, and cannot be admitted to probate. See Johnston v. Johnston, 1 Phillim. 485. The question was considered in Ex parte Lindsay, 2 Bradf. Sur. Rep. 204, where the will began: "According to my present intention, should any thing happen to me before I reach my friends in St. Louis, I wish to make a correct disposal of the three hundred dollars now in the hands of H.," &c. The testatrix proceeded safely to St. Louis, and subsequently returned to New York, where she died. It was held, that the validity of the instrument must be tested by the proof of its original execution, and by its contents, without the aid of parol evidence as to the intention of the testatrix by its subsequent recognition; that a condition in a will in order to defeat the probate, must appear upon the face of the instrument, and go to its entire subversion. If the condition is of partial application, and does not express that the entire instrument is to take effect, or fail, upon a particular event, probate will be granted, and the effect of the condition upon particular legacies be left to future construc 19. Where a person, being in India, executed the following instrument: "Know all men," &c., " that I make," E. my "lawful attorney for me, and in my name and to my use to ask, demand," &c. "And I do empower her, the said " E. "to hold and retain all proceeds of the said property for her own use, until I may return to England, and claim possession in person, or in the event of my death, I do hereby in my name assign and deliver to said" E. "the sole claim to the before-mentioned property, to be held by her during her life, and disposed of by her, as she may deem proper, at the time of her death; at the same time, I wish it to be understood that I claim all right and title to the said property on my arrival in Great Britain, when the term of said E.'s occupancy shall be considered at an end." The instrument was acted upon as a power of attorney; afterwards the maker died in India, without having returned to Great Britain, and it was held that it operated as a devise to E. Lord Denman, Ch. J., said: "I cannot see the least ground for doubt in this case. If a man, being in India, by a deedpoll gives something to his mother, and adds, 'I also devise and bequeath,' so and so, why are we to say that is not a will? What principle of law is there to prevent it from being a will? We are called upon to create a new and arbitrary rule, for the purpose of getting rid of a disposition of property, made in the event of the death of the party disposing." 46 20. Where one being informed that he could not recover from his present illness, expressed a wish, that his wife should be in a condition to receive, at his death, certain sums of money in two .savings-banks, and signed, in the presence of two witnesses, orders for the payment of the money to her, by the banks, tion. That in the present case, the prefatory words appeared to give the occasion for making the will, and not to express any clear condition upon which its validity was to depend, it was therefore admitted to probate. See also, Thompson v. Connor, 3 Brad. Sur. Rep. 366. 46 Doe d. Cross v. Cross, 8 Ad. & Ellis, N. s. 714. and died the day after, the court granted administration to the widow, with the orders annexed, as containing the will of the deceased.47 21. Where a will was executed, giving all the testator's property to his wife, but contained a printed clause giving the residue among the children of the testator, which was not read to him, it was held that it formed no portion of the instrument, and should be omitted in the probate.49 22. Where a person had changed his mind after the first execution of his will, in regard to one important devise, and by a codicil directed that the devise should go to another, and subsequently determined to restore the devise, but in the mean time had rewritten his will, making the first proposed alteration in the name of the devisee, but after his return to his first purpose, destroyed the last will, and at his death, the first will with codicils, made after the date of the last will, were found preserved by the testator, in an envelope together, and the date of the sealing certified by the initials of the testator; and it appeared that the testator, not long before his decease, had written a letter to the first devisee confirming the devise to her, which letter was duly attested, the court granted probate of the will, as contained in the letter and the papers inclosed in the sealed envelope.48 * Marsden in re, 1 Swah. & Trist. 542. The rule is here reaffirmed, that where one claims probate of a paper not apparently of a testamentary character, or not clearly so, upon its face, the burden of proof is upon that person, to satisfy the court that it was executed animo testandi. An expression of a wish that a certain person shall continue in the care of the testator's estate after his decease, is not testamentary. Thorncroft v. Lashmar, 8 Jur. N. s. 595; post, § 43. * M'Cabe in re, 2 Swab. & Trist. 474. Where a clause is accidentally introduced into a will, without any such instructions from the testator, and he exe-cutes the same without knowing of such clause being in the paper, it forms no part of the will, and probate will be granted of the remainder of the paper, omitting such clause. Duane in re, 8 Jur. N. s. 752. 23. Questions have often arisen in the English Court of Probate, in regard to discrepancies between the final, revised, draftwill, and the engrossed copy, which the testator executed, without careful comparison. The testator, in a recent case,49 executed a draft-will in April, 1847, and in May of the same year, he executed an engrossed will. In September, 1854, he executed a codicil, purporting to be a codicil to his last will of April, 1847. It was supposed, that he really intended it to be a codicil of the will of May, 1847. The draft-will contained interlineations in the handwriting of the testator, in ink, and in pencil, and cancellations. Both wills were in the handwriting of the same person, who deposed that he copied the engrossed will from the draft-will, with which it agreed, so far as the alterations in ink were concerned, but not as to those in pencil. Probate was decreed of the draft-will of April, 1847, including the alterations in ink, but not those in pencil, in so far as they agreed with the will of May, 1847, together with the codicil of 1854. 24. Two or more persons may execute a joint will, which will operate the same as if executed separately by each, and will be entitled to probate upon the decease of either, but will require a separate probate upon the death of the other.50 But if the will so provides, the probate must be delayed until the death of both.51 The same point was so decided in Day, ex parte.52 And it is here said, that such an instrument, though 49 Wyatt in re, 2 Swab. & Trist. 494. In this case, it would seem the testator made a formal execution of the first draft, which was doubtless intended to be provisional in some respects, and to be superseded by the execution of the engrossed will soon after. 50 Re Stracey, 1 Deane & Swab. Eccl. Rep. 6; 1 Jur. N. s. 1177. 51 Re Raine, 1 Swab. & Trist. 144; 1 Jarman, ed. 1861, 13; Lovegrove in re, |