A testator cannot, in his will, reserve a right to qualify, by an unattested writ-
ing, a transaction which, at the time of such writing, shall have already passed
and taken effect, or which was the act of another person, so as by means
thereof to affect legacies or other provisions in his testamentary papers. He
cannot alter his will otherwise than by an instrument attested in the same man-
ner as required to give it effect as a will. A testator may, however, make his
testamentary gifts dependent upon the happening of any event in the future,
whether in his lifetime or afterwards. He may, therefore, provide that a legacy
shall not be payable, if in his lifetime he shall give to the legatee an amount
equal to such legacy; and he may add to the condition the further require-
ment that any advancement he may make shall, in order to be applied on
account of the legacies, be charged to the legatee on his books of account.
Such entries, made in the usual course of business, and at the time of parting
with the subject of the advancements, are parcel of the res gestæ, a feature
of the transaction itself. Otherwise of an entry which might be made relat-
ing to a gift to the legatee by a third person; such a gift being res inter
alios, and not having in its own nature any operation in regard to the testa-
tor and his proposed testamentary provisions, the testator can give no effect
to it, by way of qualifying his own bequest, by an unattested writing.
The testator, by the second codicil to his will, which was executed primarily,
January 9th, 1839, bequeathed to his daughter, the plaintiff, the income of
$100,000, deposited in the New-York Life Insurance and Trust Company,
and bearing interest at five per cent per annum, to receive (directly, or, in
SMITH.-VOL. II.