be wills it is held that the subject matter of valid testamentary dispositions includes not only the property of the testator, but also the appointment of an executor to take charge of the estate of deceased, and likewise the naming of a guardian for the minor children of decedent.* Unless the written instrument aims to effect one or more of these purposes, the disposing of property, the appointment of an executor or the naming of a guardian it cannot be held a will.†

Sec. 966. SAME SUBJECT-CONTINGENT WILLS.-Whether an instrument shall operate as a will, or not, may be made to depend upon a contingency or condition. When this is the case it is called a contingent will. One of the most common forms of

22 Ia. 60; Owen v. Smith, 91 Ga. 564, 18 S. E. Rep. 527; Diefendorf v. Diefendorf, 132 N. Y. 100.

*Remington v. Bank, 76 Md. 546; In re John's Will, 30 Ore. 494; Stringfellow v. Somerville, 95 Va. 701, 40 L. R. A. 623.

+Coffman v. Coffman, 85 Va. 459; in this case an instrument was denied probate because it simply disinherited a son of the maker, and did nothing further either as to disposition or property or the appointment of an executor or a guardian. So the mere recognition of certain persons, as his daughters, by the maker of an instrument, is not a will. So the appointment of an attorney to assist the executor is not a testamentary act. (Ogier's Est., 101 Cal. 381.)

"A will is said to be contingent when the testator has in such will named some future event as a condition precedent to his will's taking effect, or upon whose happening the will never can take effect. This contingency, furthermore, is one which relates to the whole will." (Page on Wills, Sec. 60; Damon v. Damon, 8 Allen 192.)

contingent wills are those made by persons about to do some unusual act; as to go upon a journey or the like, and designed to take effect only in case of death while absent on such journey. The difficulty in these cases is to determine whether the contingency named, is a condition, or only the occasion which prompts the making of the will. If it is a condition, the instrument will not take effect unless the contingency happens. If it be but the occasion, the will becomes valid and operative as a testamentary disposition though the contingency never happens.*

Courts incline against construing the contingency as a condition, wherever it is possible to hold that the named event is the mere occasion for making the will. The contingency must be one appearing on the face of the instrument and can never be supplied by parol proof.

*Morrow's App., 116 Pa. St. 440; Magee v. McNeil, 41 Miss. 17; Goods of Porter, L. R. 2 P. & D. 22. In the Pennsylvania case just cited, the testator used this language, "I am going to town with my drill and am not feeling good, and in case I should not get back I make the following disposition," and it was held to be a condition and not fulfilled, though he became ill on the journey and was brought home and soon died. In French v. French, 14 W. Va. 458, the language used was, "If I get drowned this morning, March 7, 1872, I bequeath," etc., and it was held to be the occasion for making the will and not a condition which would invalidate it, the event not having happened. In Ex parte Lindsay, 2 Bradf. (N.) 204, the language used was, "Should anything happen to me before I reach St. Louis," and it was held to be the occasion for making the will and not a condition. See also the English case of Goods of Martin, L. R. 1 P. & D. 380.

So a contingency is usually held conditional, only where a specific event is named, and the contingency is confined, either to a time certain, or to a particular event.*

Where the contingency affects only a part of the will, and never happens, that part of the will to which the contingency applies will be invalid, but the rest of the will may stand. Thus in Damon v. Damon, 8 Allen 192, the first bequest began, "If by casualty or otherwise, I should lose my life during this voyage, I give," etc., it was held that this condition applied only to such bequest and the remainder of the will was absolute. The courts preferring to hold such wills as contingent in part rather than as a whole.

The testator may also execute a will which shall take effect in the alternative, with reference to a specified event. (74 Pa. St. 69.)

Sec. 967. SAME SUBJECT-INCORPORATION OF DOCUMENTS.-Papers and documents may be made part of a will so as to influence its meaning by being referred to in the will itself, although not entirely copied therein. For this to be done effectually, the paper referred to must be in existence at the time of the making of the will, and not thereafter to be drawn; and such paper must be referred to in the will in such a way that it may be identified by inspection, or by the aid of parol evidence of the identity and genuineness of the

*Likefield v. Likefield, 82 Ky. 589, 56 Am. Rep. 908; Robnett v. Ashlock, 49 Mo. 171. Where the language was, "If I die before I return from Ireland," it was held a contingent will. (Parsons v. Lanoe, 1 Ves. Sr. 189; Amb. Rep. 557.)

document, and it must further appear to be the testator's intention to incorporate such instrument in his will as a part thereof.* If the paper is not in existence at the time of making the will, no reference to it in the will itself can operate to incorporate it as part of the will.†

Another requisite to the valid incorporation of such a document in a will is that the document itself must correspond to the one described and intended to be incorporated in the testator's will. The absence of any one of these requirements will be a bar to the paper in question becoming a part of the will.‡

The effect of a valid incorporation of a paper in a will by referring to it as above described, is to make such paper a part of the will as though it were fully set forth in the will.§

SAME

SUBJECT-WHAT

IS A

Sec. 968. SUFFICIENT REFERENCE?-Just what will constitute a sufficient reference to a paper in order to incorporate it as part of a will is not always clear. It is held that a reference to, or description of, the document in the will is sufficient though it needs extrinsic evidence to identify such document as the one referred

*Scillaber's Est., 74 Cal. 144; Smith v. Smith, 54 N. J. Eq. -; Ford v. Ford, 70 Wis. 19; Mortgage Co. v. Moore, 150 Ind. 465; Young's Est., 123 Cal. 337; Zimmerman v. Hafer, 81 Md. 347.

Dennis v. Holsapple, 148 Ind. 297; Chase v. Stockett, 72 Md. 235.

369.

Baker's App., 107 Pa. St. 318; Brown v. Clark, 77 N. Y.

§Fickle v. Snepp, 97 Ind. 289; Page on Wills, Sec. 167.

to. Thus where the reference was to a deed by the language "The deed which I send you a copy of," this was held sufficient, the copy being enclosed in the same letter with the will.* So a reference to a deed is sufficient to incorporate it as part of a will if the names of the parties and the date of the deed are given, likewise a reference to a note is sufficient if the amount and the names of the parties are given.†

No reference in a will can incorporate verbal instructions which have been given to some one by the testator, since the statute requires the will to be in writing.‡ Where a document is referred to by the testator for the mere purpose of identifying the beneficiary under the will, the rules of incorporation do not apply, and such document can be used for the purpose, though not in existence at the time of making the will, and not specifically described.§

Sec. 969. SIGNING BY THE TESTATOR.— The Statutes of Wills quite universally require that the will shall be signed by the testator.** The usual and

*Skerett's Est., 67 Cal. 585; Newton v. Society, 130 Mass. 91; Allen v. Boomer, 82 Wis. 364.

†Fickle v. Snepp, 97 Ind. 289; Tesler v. Simpson, 58 Ind. 83; Bizzey v. Flight, L. R. 3 Ch. Div. 269.

Oliffe v. Wells, 130 Mass. 221; Sims v. Sims, 94 Va. 580. §Page on Wills, Sec. 169; Dennis v. Holsapple, 148 Ind. 297, 46 L. R. A. 168; Piffard's Est., 111 N. Y. 410, 2 L. R. A. 193. **Remington v. Bank, 76 Md. 546. In Showers v. Showers, 27 Pa. St. 485, under an early statute where testator was prevented by sudden illness from signing or requesting another to sign his will, it was held valid.