with my drill and I aint feeling good," was the contingency suggesting the propriety of making the will. "And in case if I shouldend get back, do as I say on this paper," contains the contingency upon which the will should become operative. It is very clear that the will is not presently operative. He does not say: "I hereby give and bequeath"; there is no immediate gift. He does not say absolutely, "do as I say on this paper"; some time at least must elapse after his departure for town, before any such duty is imposed. The command is provisional: "if I shouldend get back do as I say on this paper." It is plain, that his failure to return, is the condition precedent required before the instrument can become effectual. If it was ineffectual until there was a failure to return, and if there was no such failure, it is also plain it never became effectual; that it was a contingent will, and became void by the non-happening of the contingency.

In Todd's Will the expression is, "if I should not return, what I own shall be divided as follows." In Morrow's Will the expression is, "if I shouldend get back do as I say on this paper." If I should not return, and if I shouldend get back are forms of expression so plainly equivalent, that we are unable to see any distinction or difference between them. Notwithstanding the able argument of proponent's counsel, we are of opinion that the register's decision was right in principle, and obedient to the authority of Todd's Will, and must therefore be affirmed. And now, 4th November, 1886, the decision of the register is affirmed.

Thereupon the proponent took the present appeal and assigned for error the affirmation of the register's decree refusing to vacate the letters granted, and to admit the alleged will to probate.

In the Supreme Court (before MERCUR, C. J., GORDON, TRUNKEY, STERRETT, GREEN, and CLARK, JJ.; PAXSON, J., absent), the opinion was written by

GREEN, J. 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

divided as follows. The words here are,

on this paper."

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 "in case if I shouldend get back do as I say 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 distinguished 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 contingency. 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.

Incorporation of Documents in Will by Reference.* APPEAL OF WILLIAM JENNINGS BRYAN, ET AL., FROM PROBATE.

77 Conn. 240; 68 L. R. A. 353. 1904.

Appeal by William Jennings Bryan, individually and as trustee, from a decree of the Superior Court for New Haven County which affirmed a decree of the Probate Court refusing to approve a writing as part of the will of Philo S. Bennett, deceased. (Affirmed)

The facts are stated in the opinion.

TORRANCE, Ch. J., delivered the opinion of the court:

The court of probate for the district of New Haven approved and admitted to probate a certain writing as the last will of Philo S. Bennett, deceased. That will contained, as its twelfth clause, the following: "I give and bequeath unto my wife, Grace Imogene Bennett, the sum of fifty thousand dollars ($50,000) in trust, however, for the purposes set forth in a sealed letter which will be found with this will." At the time this will was offered for probate, there were also offered for probate, as a part of it, under the twelfth clause of the will, two writings hereinafter referred to as exhibits B and C. The court of probate refused to approve or admit to probate as parts of said will each and both of these exhibits, and from that part of its decree an appeal was taken to the superior court by William J. Bryan, individually and as trustee under the will, as he claims it to be. The will admitted to probate is, in the record, called "exhibit A," while exhibits B and C are letters which, as the appellant claims, constitute a part of the will. The will was executed in New York, and is dated the 22d day of May, 1900.

Exhibit B is a letter from the testator to his wife, of which the following is a copy:

My dear wife :

New York, 5-22-1900.

In my will just executed I have bequeathed to you seventyfive thousand dollars, ($75,000) and the Bridgeport houses,

* See Secs. 967-968, Vol. 7, Cyclopedia of Law.

and have, in addition to this made you the residuary legatee of a sum which will amount to twenty-five thousand more. This will give you a larger income than you can spend while you live, and will enable you to make bountiful provision for those you desire to remember in your will. In my will you will find the following provisions: I give and bequeath unto my wife, Grace Imogene Bennett, the sum of fifty thousand dollars ($50,000) in trust, however, for the purpose set forth in a sealed letter which will be found with this will.

It is my desire that fifty thousand dollars conveyed to you in trust by this provision shall be by you paid to William Jennings Bryan, of Lincoln, Nebr., or to his heirs if I survive him. I am earnestly devoted to the political principles which Mr. Bryan advocates, and believe the welfare of the nation depends upon the triumph of those principles. As I am not as able as he to defend those principles with tongue and pen, and as his political work prevents the application of his time and talents to money making, I consider it a duty, as I find it a pleasure, to make this provision for his financial aid, so that he may be more free to devote himself to his chosen field of labor. If for any reason he is unwilling to receive this sum for himself, it is my will that he shall distribute the said sum of fifty thousand dollars according to his judgment among educational and charitable institutions. I have sent a duplicate of this letter to Mr. Bryan, and it is my desire that no one excepting you and Mr. Bryan himself shall know of this letter and bequest. For this reason I place this letter in a sealed envelope, and direct that it shall be opened only by you, and read by you, alone.

With love and kisses,

P. S. BENNETT.

Exhibit C was a typewritten duplicate of exhibit B, except that the words, "with love and kisses, P. S. Bennett," at the end of exhibit B, were not contained in exhibit C, nor was exhibit C signed by the testator. Respecting these exhibits, the appellant, in the superior court, offered evidence tending to prove the following facts: That about a week or ten days before the date of the will, at the city of Lincoln, Nebraska, the testator and Mr. Bryan and his wife prepared a blank draft form of the will which was subsequently filled out and executed, and that exhibit C was then also prepared as a blank draft form from which exhibit B was to be, and was subsequently, drawn; that exhibit B was in the handwriting of the

testator and was by him placed in a sealed envelope bearing the following indorsement in his handwriting: "Mrs. P. S. Bennett. To be read only by Mrs. P. S. Bennett and by her alone, after my death. P. S. Bennett, [Seal]"; that the testator, on the day after the date of the will, placed said will and said envelope containing exhibit B in his box in a vault in the Wool Exchange building, in New York City, where they remained as he put them until after his death, the will being "separated from said letter and said sealed envelope"; and that exhibit C, from the time it was drawn up, remained in Bennett's custody till after his death, and was found soon after that event among his private papers, in an envelope subscribed in Bennett's handwriting as follows: "Copy of letter in Safe Deposit Company vault Wool Exchange." The appellant then offered exhibit C in evidence as part of the will, claiming that it was the original and equivalent of the paper exhibit B, "and that it was substantially the sealed letter referred to in paragraph 12 of the will." The court excluded the evidence. The appellant thereupon offered in evidence, as part of the will, the letter exhibit B, and the court excluded it. The appellant also offered parol evidence tending to prove that exhibit B was the instrument to which reference was made in clause 12 of the will, but the court excluded such evidence. Subsequently the jury, under the direction of the court, rendered a verdict to the effect that exhibit B and C "are not, either separately or together, a part of the last will of said Philo S. Bennett, deceased," and judgment followed in accordance with the verdict.

From the opinion of the trial court, which is made part of the record, the rulings of the court seem to have been based upon several distinct grounds, which may be briefly indicated in this way: (1) Apparently upon the ground that the doctrine of incorporation by reference does not prevail as to wills, under our statute relating to their making and execution; (2) that, even if that doctrine prevails here, no paper in the present will is by reference made a part of it, according to the rules universally applied in jurisdictions where the above doctrine prevails; and (3) that the letter exhibit B shows on its face an intent on the part of the testator that it should not