Oliver Wendell Holmes, Jr.

“ If her failure to return from the journey had been the condition of her bounty,-an hypothesis which is to the last degree improbable in the absence of explanation,-it is not to be believed that when she came to explain her will she would not have explained it with reference to the extraordinary contingency upon which she made it depend instead of going on to give a reason which, on the face of it, has reference to an unconditioned gift. ”

“ 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. ”

“ 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. ”

“ 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. ”