Appeal of Morrow , 116 Pa. 440 ( 1887 )

Opinion,

Mr. Justice Green:

It is scarcely possible to add anything to the very lucid and exhaustive opinion of the learned court below in this case. We agree entirely with the conclusion arrived at and the reasoning in support of it. The authorities cited are numerous and altogether convincing in their character. Our own case of Todd’s Will, 2 W. & S. 145, is exactly in point and controls the present contention. The essential words there were, “ if I should not return . . . what I own shall be divided as follows.” The words here are, “in case if I shouldend get back, do as I say on this paper.” The meaning in both these cases is the same. A testament is to take place if there is no return. But there was a return in both instances, and the testament does not transpire. There is no will because the condition on which it was to come into existence has not occurred. In both cases the deceased did return.

It is useless to speculate as to what the deceased would have done had he foreseen the precise facts which were to happen. He has made no provision for them. The condition which he has expressed is one which attaches to the operation of the instrument, and the effect of this is strongly expressed by Gibson, C. J., in Todd’s Will case, thus: “ No text writer seems to have rdistinguished 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 Ves. 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 ? ” And so here. The decedent did return from the journey he was about to take and the contingency upon which the paper was to take effect as a testament did not happen. Whether the journey was long or short is not material, it is the fact of the return which defeats the contingencjn It is true he was sick at his return, but as, he lived several days after, this fact also is immaterial. Further discussion seems unnecessary.

Decree affirmed.