in existence. But every codicil must refer to some will, the last in date, if no express date is mentioned; if there is, that of the particular date expressed.2 republished Republication by a widow of her will under a power Effect of a only passes what property she could leave by that power, will exceeding and hence if it purport to leave other property, acquired its powers? after the will were made, but before republication, it would be so far ineffectual.3 Where a testator made a will in 1863, married, and afterwards in 1875 made another, and in case of no issue living at his wife's death, provided as follows :-" I hereby revive and bring into force again my former will made before my marriage. . . and direct that all its provisions and directions shall be complied with as though it formed part of this my last will and testament;" and himself died, leaving his widow and issue; the court, upon motion for probate of both wills, as incorporated and clearly identified, granted the application, though not entirely of opinion that such was the proper course, but on the ground of convenience, as no harm could result from it by this course.1 A will revoked by the cutting out of the signature is Signature not revived by gumming it in again. 1 Neate v. Pickard, 2 N. C. 406. 2 Crosbie v. M'Doual, 4 Ves. jun. 615; see also, since the Wills Act, Chapman, 1 Robert. 1. 3 Du Hourmelin v. Sheldon, 19 Baugham, 45 L. J., Prob. 80; replaced. Contingent wills. A contingent will revoked. Revival by recognition. CHAPTER V. WILLS CONTINGENT, DUPLICATE AND NUNCUPATIVE. A WILL purporting to be contingent upon the happening of a certain event, in other words, to be of no effect if that event does not happen-for example, contingent upon the testator's death during a period of service on the Gold Coast, is revoked by his survival. Wills of this description do not appear to be rightly classed under any of the five separate modes of revocation. They appear to partake somewhat of the nature of an escrow, or an informal paper becoming a will upon performance of a condition from which it derives its legal entity; but, be that as it may, this is a class of wills requiring a careful consideration of their terms, and of the acts of the testator relating to them, subsequent to execution and before death. It will be found that if the contingency does not take place, revocation ensues thereupon without further action; but if, subsequent to the failure of the contingency, the testator sufficiently recognizes his will, it becomes thereby revived, the conditional revocation being thus put an end to. A testator's will to take effect, "if he died before returning from Ireland," was held to be void upon his return, as a "provisional contingent disposition," and, under like circumstances, not applicable to a subsequent voyage, parol evidence to prove it being inadmissible.2 If, on the return of the deceased from his first voyage, he had, by subsequent acts, recognized these papers, in a manner capable of proof by evidence other than parol, the return would not have been held "such a defeazance as to invalidate the 1 Parsons v. Lanoe, 1 Ves. sen. 2 Winn, 2 Sw. & Tr. 147. will." The words of limitation of the effect of the will must be closely followed.2 Where the penning of the will is conditional,2 collateral or parol proof cannot be taken into consideration, for it would be dangerous, and what the court, since the Statute of Frauds, is not warranted to do. For nothing will set it up but some act done by the testator, after that event, to republish the will, or defeat the conditions. So that, though it is correct to say that mere tacit, or even verbal, adherence will not effect the revival of such a will, when the condition, on failure of which its existence depends, is performed, that expression must not be taken to shut out the possibility of such a will being revived. But the revival must conform to the requirements of the 22nd section of the Wills Act.1 will not really contingent. A paper, upon conditions similar to those in Parsons v. Instance of a Lanoe, and Roberts v. Roberts, but not executed as a will until the testator's return from his journey, was held valid upon the execution. But the point now under discussion did not arise, namely, the performance of some act after the event to republish the will or defeat the conditions, as the paper was not really an executed will until after the performance of the condition. A similar disposition, in effect, was similarly construed at the present time, and upon the authority of the preceding case, as the Wills Act contained no objection to it. Lord Penzance there stated, "There is nothing in the statute to prevent a man from saying that the question whether a paper shall be operative or otherwise shall depend upon an event to happen after his death." 6 But, as seen, recognition will re-establish a conditional testamentary paper, though the condition be never per Recognition dition is not performed. when the con Instance of wills contin gent and not contingent. Contingent. Conditional wills. formed. And this is in strict accordance with the principle that a conditional will may (in fact must) be got rid of, either by converting it into an absolute will by a subsequent act, as in the previous case, or by satisfying the condition.2 . . Where a will ran-"In case of my inability to make a regular codicil to my will . I desire the following to be taken as a codicil to and as a further part of my said will," the court held this to mean only, "till I make a regular will so long I adhere to this paper." But "lest I should die before the next sun, I make this my last will," was held not to create a contingent disposition, and subsequent preservation of this will for eighteen years entitled it, as so adhered to, valeat quantum, to probate. The most important part of this case-the judgment-is very briefly reported, but upon consideration the contingency appeared to be created, if clear from the report, is that which should impel all people to make their wills, namely, an acute appreciation of the uncertainty of life. An incomplete paper, dated before the Wills Act, and signed in pencil, with the addition, "In case of accident I sign this my will," was eventually admitted to probate as contingent, the accident having happened, and the deceased's intention to die testate having been proved. A testamentary letter, contingent only upon a certain event which did not take place, would have been considered revoked, had it not been subsequently recognized. Probate in common form, upon mere affidavits of intention, was refused in this case." A. made a will in 1864. At a later date he and his wife, in view of a railway journey, made a joint will thus: “In case we shall be called out of this world at one and the same time, and by one and the same accident, we direct, 1 Strauss v. Schmidt, 3 Phillim. 209; Tylden, 18 Jur. 136. 2 Ingram v. Strong, 2 Phillim. 294. 3 Forbes v. Gordon, 3 Phillim. 625. 4 Burton v. Collingwood, 4 Hagg. 176. 5 Bateman v. Pennington, 3 Moo. P. C. 223. 6 Ward, 4 Hagg. 179. &c., &c. We revoke all former wills, and declare this to be our last will and testament." No accident occurred. On the death of the testator some time afterwards, this will was held to be conditional throughout, and, therefore, not revocatory of the testator's earlier will of 1864.1 General probate was decreed of a will inter alia, conditional in these words, "to take effect only in the event of my son Charles dying under the age of twenty-one years, and my daughter Sarah dying under that age and unmarried." Both children were living at the time the will was sought to be proved. The reasons for this decree are not stated, but, as other provisions were made in the will, wholly independent of the condition, and probate was prayed, "with what limitations the court should think fit,” this may supply the reason for the decree. A decision, similar in effect to this, occurred in the case of an officer, who, in contemplation of death on the Gold Coast, inserted in his will the condition "in the event of my death while serving in this horrid climate, or any accident happening to me, &c." He subsequently died in England. Other testamentary directions appeared in the will, and the court, thinking the testator did not intend to limit its operation to the event of his death happening in Africa, upon proof of the fulfilment of other requirements not now under discussion, decreed administration with the will annexed. But a will thus:-"In case anything should happen to me during the remainder of the voyage from hence to Sicily and back to London, I give, &c.," was held conditional by Lord Penzance, who there stated, "In all these cases that Intention there is a line of division between contingent and non- of division contingent wills is very apparent, although in the different between contingent and circumstances of each case it may not be always very dis- non-contintinct. I am against this paper. I think it is conditional." gent wills. The intention of the testator in the preceding case influ 1 Hugo, 46 L. J., Prob. 21. 2 Cooper, Dea. & Sw. 9. 3 Thorne, 34 L. J. 131. Robinson, 2 P. & D. 17; see also draws the line |