Hamilton's Estate , 74 Pa. 69 ( 1873 )

The opinion of the couit was delivered July 2d 1873, by

Williams, J. —

It is clear that the testamentary paper of January 13th 1873, admitted to probate by the register, cannot, be regarded as the will of James Hamilton. It is not his will, for the contingency upon which it was to take effect never happened: Todd’s Will, 2 W. & S. 145. It was a provisional will, and was only to become operative if he did not die before the 1st of March 1873; if he did, it was to have no force or effect. He died on the 23d of January 1873, and therefore, by the express provisions of the codicil to which it is subject, it did not take effect as his will. If, then, it never had any force or validity as a will, did it revoke the will of the 20th November 1871, which was also admitted to probate by the register ? It did not revoke it in express terms, for it contains no revoking clause. It did not revoke it by implication, for the contingency upon which it was to take effect never happened. If it did not take effect as a will, it did not take effect at all, and was as powerless to revoke the prior will as if it had never been made. But if it had contained a revoking clause, it does not follow that it would have repealed the former will. The fair construction in such case would be that the clause was intended only to operate if the paper took effect as a will; but if not, then it was to have no effect: Rudy v. Ulrich, 19 P. F. Smith 177. If at the time the testator executed the paper of the 13th of January 1873, he did not intend that it should be his will if he died before the 1st of March, then it is clear that it did not revoke the will of the 20th of November 1871. The codicil shows that he did not intend that it should be bis will if he died before that time. It is true that the codicil has no other date than that of the month and year; but, in the absence of all evidence as to the precise time of its execution, the presumption is that it was executed at the same time with the paper of which it was intended to be part. But whether it was executed at that time or on a subsequent day, its effect on the paper is the same. It is an addition or supplement to it, and the whole must be construed together as one instrument. Thus construed, can there be a doubt that the will of the 13th of January 1873 was intended to be provisional, and that it was not to take effect if the testator died before the 1st of March following ? The fallacy of the appellants’ argument lies in the assumption that the will of the 20th of November 1871 was revoked ipso facto by the execution of the will of the 13th of January 1873. But it was not revoked unless the testator intended to revoke it, and in the face of the declaration in the codicil no inference that he intended to revoke it can possibly arise. There is no pretence that the codicil was intended as an addition or supplement to the prior will. It was manifestly intended to be a part of the latter will, and the sole purpose of its sixth item was to convert what would otherwise have been an absolute, into a conditional will. It changed the character of the instrument and prevented it from operating as a revocation of the former will. What rule or policy of law, then, prevents us from giving to it the effect which the testator intended that it should have ? Why should it be so construed as to defeat the end for which it was designed ? Whether the testator’s gifts of charity stand or fall, it is clear that the will of the 20th of November 1871 must be regarded as his will. If not, then he left no will; but so to hold would shock all sense of right and justice. From what time, then, does it speak ? It was never republished, for it was never revoked; and, therefore, it speaks from its date. And, if so, its bequests of charity are not avoided by the statute of 26th April 1855, which forbids such gifts within one month of the testator’s decease. The decree of the Orphans’ Court must, therefore, be affirmed.

Decree affirmed, at the costs of the appellants to be paid out of estate of the testator.