Messrs. J. Altheus Johnson and Joseph A. Burkart for appellant and plaintiff in error. [193 U.S. 411, 412] Mr. Thomas Watts for appellees and defendants in error.
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, which is in the possession of 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.
The case was heard on the petition, an answer denying the allegations of the same, except on a point here immaterial, and [193 U.S. 411, 413] 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 domicil 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. Rep. 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, Ambler, 557, 1 Wils. 243; Sinclair v. Hone, 6 Ves. 607, 610; Roberts v. Roberts, 2 Swabey & T. 337; Lindsay v. Lindsay, L. R. 2 P. & D. 459; Todd's Will, 2 Watts & 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 [193 U.S. 411, 414] 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 opinion that the will should be admitted to proof.
It is to be noticed that in the leading case cited for the opposite conclusion from that which we reach (Parsons v. Lanoe), Lord Hardwicke emphasizes the proposition that under the circumstances of that case no court of equity would give any latitude to support such a will. There the will began 'in case I should die before I return from the journey I intend, God willing, shortly to undertake for Ireland.' The testator then was married but had no children. He afterwards returned from Ireland and had several children. If the will stood, the children would be disinherited; and that was the circumstance which led the Lord Chancellor to say what we have mentioned, and to add that courts would take hold of any words they could to make the will conditional and contingent. Ambler, 561; 1 Ves. Sr. 192. It is to be noticed further that in the more important of the other cases relied on by the appellees the language or circumstances confirmed the absoluteness of the condition. For instance, 'my wish, desire, and intention now is that if I should not return (which I will, no preventing Providence'). Todd's Will, 2 Watts. & S. 145. There the language in the clearest way showed the alternative of returning to have been present to the testator's mind when the condition was written, and the will was limited further by the word 'now.' Somewhat similar was [193 U.S. 411, 416] Porter's Goods, L. R. 2 Prob. & Div. 22, where Lord Penzance said, if we correctly understand him, that if the only words adverse to the will had been 'should anything unfortunately happen to me while abroad,' he would not have held the will conditional. See Mayd's Goods, L. R. 6 Prob. Div. 17, 19.
On the other hand, we may cite the following cases as strongly favoring the view which we adopt. It hardly is worth while to state them at length, as each case must stand so much on its own circumstances and words. The latest English decisions which we have seen qualify the tendency of some of the earlier ones. Mayd's Goods, L. R. 6 Prob. Div. 17; Dobson's Goods, L. R. 1 Prob. & Div. 88; Thorne's Goods, 4 Swabey & T. 36; Likefield v. Likefield, 82 Ky. 589, 56 Am. Rep. 908; Bradford v. Bradford, 4 Ky. L. Rep. 947; Skipwith v. Cabell, 19 Gratt. 758, 782-784; French v. French, 14 W. Va. 458, 502.