294, 22 South. 803; Reese v. Hawthorn, 10 Grat. (Va.) 548; Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371; In re Rutt's Estate, 200 Pa. 549, 50 Atl. 171; O'Neill v. Smith, 33 Md. 569. A more liberal view, however, of the meaning of this phrase has found favor in recent decisions of the Supreme Courts of Alabama, Tennessee, Illinois, and Kansas. Johnson v. Glasscock, 2 Ala. 218; Nolan v. Gardner, 7 Heisk. (Tenn.) 215; Harrington v. Stees, 82 Ill. 50, 25 Am. Rep. 290; Baird v. Baird, 70 Kan. 564, 79 Pac. 164, 68 L. R. A. 627.

Under the decisions last cited it is held that, where a verbal will is made in the last sickness, of which the testator dies, when such sickness has progressed to such a point that he expects death at any time, and realizes that he is liable to die there from at any time, and in view of such expected death, and as preparatory thereto, makes a will near to the time of his death, such will is made in the last sickness of the testator, although a sufficient time may have intervened between the making of the oral will and the death of the testator to have permitted the making of a written will. We are inclined to think that this rule is all that a fair interpretation of the statute requires, and that a sufficient precaution to prevent imposition and fraud on the estates of decedents is taken by the courts when strict proof is required by disinterested witnesses that the words spoken were intended as the last will of the decedent, and that the witnesses present, or some of them, were called upon to bear witness of such fact. We think that the evidence was probably sufficient to sustain the verdict of the jury on the question that the will offered for probate was made in the last sickness. of the deceased.

In view of the conclusion to be reached, it is not necessary to determine the question whether real estate is a subject of devise by nuncupative will under our statute. The only question involved in this controversy at the present time, and now before us for adjudication, is whether or not the will offered in the county court shall be admitted to probate as the last will and testament of the deceased, and because of the interest of one of the attesting witnesses and the incompetency of the other, as before set out, there is not sufficient competent evidence to sustain the judgment, and we therefore recommend that the judgment of the district court be reversed, and the cause be remanded for further proceedings.

AMES and LETTON, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause is remanded for further proceedings.?

7 See In re Miller's Estate, 47 Wash. 253, 91 Pac. 967, 125 Am. St. Rep. 904, 13 L. R. A. (N. S.) 1092 (1907), 3 Am. & Eng. Ann. Cas. 317, note. On rogatio testium, see Dawson's Appeal, 23 Wis. 69 (1868); Wiley's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am. St. Rep. 569 (1898), 10 Am. & Eng. Ann. Cas. 1132, note. "A nuncupative will is where the testator, without any writing, declares his will or testament, as to personal estate, before two witnesses. In England there must be three witnesses. No case was produced

In re DAVIS' WILL.

(Supreme Court of Wisconsin, 1899. 103 Wis. 455, 79 N. W. 761.)

8

CASSODAY, C. J. It appears from the record: That August 18, 1896, at 5 o'clock a. m., Russell E. Davis died at his home in Milwaukee, leaving a nuncupative will spoken a few hours before, and during his last sickness, and which was thereupon reduced to writing, as follows: "I give unto my wife the income of my entire estate during her widowhood. If she shall remarry, she is to have one-third of my estate, and the other two-thirds is to go to my children. Upon the death of my wife, my whole estate is then to go to my children. I appoint my brother Oscar F. Davis my executor." * * *

The only question for consideration is whether the words so spoken, and constituting the nuncupative will of the deceased, were effectual to pass the income of the real estate to the widow. The statute declares, in effect, that the owner of "lands," or of any interest therein, "may devise and dispose of the same by last will and testament in writing; and all such estate not disposed of by will shall descend as the estate of an intestate," etc. Rev. St. § 2277. This includes the right to "devise" the homestead. Id. § 2280. The statute also declares that "the word 'land' or 'lands,' and the words 'real estate' and 'real property' shall be construed to include lands, tenements and hereditaments and all rights thereto and interests therein." Rev. St. § 4971, subd. 9; Id. § 2025. The statute also declares that every competent person, "may, by last will and testament in writing, bequeath and dispose of all his or her personal estate remaining at his or her decease," etc. Id. § 2281. All wills, except nuncupative wills, must be in writing, and executed as prescribed. Id. § 2282. And the statute further declares that "no nuncupative will shall be good when the estate bequeathed

where it was held that a decedent, who intended to make a written will, which, for any cause, was left incomplete or unfinished, died testate by nuncupation of the unfinished will. I have met with but one case, that of Offutt v. Offutt, 3 B. Mon. 162, 38 Am. Dec. 183, where it was ruled that a paper not perfected as a written will may be established as a nuncupative will, where its completion is prevented by the act of God. But this depended much on the peculiarity, or rather distinctive character, of the Kentucky statute. There ought, therefore, to be present, in order to constitute a nuncupative will, not only the animus testandi, but the mind and intent to nuncupate." Coulter J., in Porter's Appeal, 10 Pa. 254, 258, 259 (1849). See, also, Kennedy v. Douglas (N. C.) 66 S. E. 216 (1909).

* * *

In Re Miller's Estate, supra, it was held that upon the probate of a nuncupative will the court, in the exercise of a sound discretion, may permit the alleged will and its records to be amended to conform to what the facts show was the will of the testator.

On nuncupative wills, see 11 Prob. Rep. Ann. 13, note; 67 Am. St. Rep. 572, note; 20 Am. Dec. 44, note; 2 Prob. Rep. Ann. 171; 5 Am. Prob. Rep. 391, note; 8 L. R. A. 40, note; 9 L. R. A. 829, note; 3 Am. & Eng. Ann. Cas. 317, note; 10 Am. & Eng. Ann. Cas. 1132, note; 14 Am. & Eng. Ann. Cas. 1164, note.

8 Part only of the opinion is given

shall exceed the value of $150 that is not proved," as therein prescribed. Id. § 2292.

The old English statute, of which that section is almost a literal copy, used the words "the estate thereby bequeathed." Act 29 Car. II. c. 3, § 19. The word "bequeath" is commonly used with reference to the disposition of personal property; and the word "devise," with reference to the disposition of real property. Cent. Dict.; And. Law Dict.; Schouler, Wills, §§ 3, 513; In re Fetrow's Estate, 58 Pa. 427. To hold that real estate could be disposed of by a nuncupative will would be repugnant to other provisions of the statutes requiring conveyances of and contracts relating to real estate to be in writing. Rev. St. §§ 2302, 2304. We must hold that under our statutes a nuncupative will is inoperative to transfer title to real estate. This is in accord with the rulings of other courts under similar statutes. Sadler v. Sadler, 60 Miss. 251; McLeod v. Dell, 9 Fla. 451; Smithdeal v. Smith, 64 N. C. 52; Palmer v. Palmer, 2 Dana (Ky.) 390; Page v. Page, 2 Rob. (Va.) 424; Lewis v. Aylott, 45 Tex. 190; Pierce v. Pierce, 46 Ind. 86. But this does not prevent such will from being effectual as to the personal property. McLeod v. Dell, supra.

* * *

We must hold that the will was inoperative in so far as it attempted to dispose of the income of the real estate. The judgment of the circuit court is affirmed.

SECTION 4.—CONDITIONAL WILLS

In re GOODS OF SMITH.

(Court of Probate, 1869. L. R. 1 P. & D. 717.)

LORD PENZANCE.10 The codicil in question contains this clause: "I give my wife the option of adding this codicil to my will or not, as she may think proper or necessary." Now the proposition is clear that the mere fact that a part is in the form of a will, will not necessarily shew that it is testamentary. There must have been in the execution of it an animus testandi; the testator must have intended that the paper shall operate as a will. There have been cases in which persons have signed and executed with the formalities required by law papers in all outward respects wills, but which, it has afterwards been proved to the satisfaction of the court, were executed in joke or for some collateral object. What the testator has tried to do in this case is, he has endeavoured to leave it to his wife to say whether or no this testamentary paper shall be operative or not. He has declared it to be operative or not according to a certain event, namely, his wife's

See Mulligan v. Leonard, 46 Iowa, 692 (1877).

10 The statement of facts is omitted.

determination. The court will be anxious to carry out his wishes, if it be able to do so within the provisions of the law; and the question is, whether the object of the testator is illegal.

I think not. It is true that a testator cannot confide to another the right to make a will for him, and it is equally true that he cannot leave to another a power to revoke his will after his death, because the statute says that wills shall be revoked only in the manner prescribed by it, and if a will be destroyed by some person other than the testator, it must be destroyed in the presence of the testator, and by his direction, but 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. Neither common sense nor the words of the statute are opposed to such a proposition. In Parsons v. Lanoe, 1 Ves. Sr. 190, Lord Chancellor Hardwicke said: "It has been argued that although the dispositions might be made conditional and contingent, yet it was impossible to make the instrument so. If the entire disposition is made so, the consequence will be the same; but though it be truly said that in the several chapters of Swinburne of conditions, there is no instance of the instrument of the will being made eventual, I am very clear, without the help of an authority, that a will or codicil may be entirely depending on a contingency, so as to have no effect as an instrument, unless that event happened, nor should it be proved in the Ecclesiastical Court."

I think the intention of the testator in this case was lawful, and as his wife has exercised her option by refusing to recognize the second codicil as testamentary, I decree probate of the will and first codicil only.

EATON v. BROWN.

(Supreme Court of the United States, 1904. 193 U. S. 411, 24 Sup. Ct. 487, 48 L. Ed. 730.)

Mr. Justice HOLMES delivered the opinion of the court.

The question in this case is whether the following instrument is entitled to probate:

"Washington, D. C. Aug. 31′′ /001.

"I am going on a Journey and may, not ever return. And if I do not, this is my last request. The Mortgage on the King House, wich is in the possession Mr H H Brown to go to the Methodist Church at Bloomingburgh. All the rest of my properday both real and personal to My adopted Son L. B. Eaton of the life Saving Service, Treasury Department Washington D. C, All I have is my one hard earnings and and I propose to leave it to whome I please.

"Caroline Holley."

The case was heard on the petition, an answer denying the allegations of the same, except on a point here immaterial, and setting up

that the residence of the deceased was in New York, and upon a stipulation that the instrument was written and signed by the deceased on August 31, 1901, and that she went on her journey, returned to Washington, resumed her occupation there as a clerk in the Treasury Department, and died there on December 17, 1901. Probate was denied by the Supreme Court with costs against the appellant, and this decree was affirmed by the Court of Appeals upon the ground that the will was conditioned upon an event which did not come to pass. It will be noticed that the domicile of the testatrix in Washington was not admitted in terms. But the Court of Appeals assumed the allegation of the petition that she was domiciled in Washington to be true, and obviously it must have been understood not to be disputed. The argument for the appellee does not mention the point. The petition also sets up certain subsequent declarations of the deceased as amounting to a republication of the will after the alleged failure of condition, but as these are denied by the answer they do not come into consideration here.

It might be argued that logically the only question upon the probate was the factum of the instrument. Pohlman v. Untzellman, 2 Lee, Eccl. 319, 320. But the practice is well settled to deny probate if it clearly appears from the contents of the instrument, coupled with the admitted facts, that it is inoperative in the event which has happened. Parsons v. Lanoe, 1 Ves. Sr. 189; S. C., Ambler, 557; 1 Wils. 243; Sinclair v. Hone, 6 Ves. 607, 610; Roberts v. Roberts, 2 Sw. & Tr. 337; Lindsay v. Lindsay, L. R. 2 P. & D. 459; Todd's Will, 2 W. & S. 145. The only question therefore is whether the instrument is void because of the return of the deceased from her contemplated journey. As to this, it cannot be disputed that grammatically and literally the words "if I do not" [return] are the condition of the whole "last request." There is no doubt either of the danger in going beyond the literal and grammatical meaning of the words. The English courts are especially and wisely careful not to substitute a lively imagination of what a testatrix would have said if her attention had been directed to a particular point for what she has said in fact. On the other hand, to a certain extent, not to be exactly defined, but depending on judgment and tact, the primary import of isolated words may be held to be modified and controlled by the dominant intention to be gathered from the instrument as a whole. Bearing these opposing considerations in mind, the court is of the opinion that the will should be admitted to proof.

"Courts do not incline to regard a will as conditional where it can be reasonably held that the testator was merely expressing his inducement to make it, however inaccurate his use of language might be, if strictly construed." Damon v. Damon, 8 Allen (Mass.) 192, 197. Lord Penzance puts the same proposition perhaps even more strongly in In the Goods of Porter, L. R. 2 P. & D. 22, 23; and it is almost a commonplace. In the case at bar we have an illiterate woman writing