On Motion for Rehearing. After the fuller light of a reconsideration, this court is constrained to adhere to its original holding that this brief and informal memorandum — written by Mrs. Jackson in a scrawling hand upon a small piece (4 1/2 by 6 1/2 inches) of ordinary note paper, as the photostatic copy attached to the statement of facts unmistakably shows, on the eve of the departure together of herself and her husband for the seashore at Port Arthur — was never intended as other than a provision by forethought against the sole contingency of their both failing to likewise return together alive from that brief journey, hence should not now be given the legal effect of an unconditional will, when such contingency, so unequivocally expressed in the note itself as its sine qua non, has wholly failed.
We are not construing internal parts or portions of an instrument shown in other respects to be a valid will, but, at the threshold, one as an entirety that is tendered as such, and might be that — in so far as concerns form alone; accordingly, the sole material inquiry left over under the well-settled rules of construction relating to this species of documents is: "Whether the contingency is referred to as the reason or occasion for making the disposition, or as the condition upon which the disposition is to become operative," French v. French, 14 W. Va. 459; in other words, in the language of Dougherty v. Holscheider,40 Tex. Civ. App. 31, 88 S.W. 1113, 1114: "If it appears that the testator intended to dispose of his property in case of the happening of the named event, then it will be held to be conditional. * * *
"In most of the cases holding wills dependent on the happening of the condition named, the words `if I never get back,' referring to a certain journey, or `should anything happen to me,' referring to a particular time or event, were used."
These cases, among many others, inclusive of the latest direct expression of the Texas Supreme Court on the precise question in Ferguson v. Ferguson, 45 S.W.2d 1096, 79 A.L.R. 1163, were cited in our former opinion as making very clear this stated rule; so that there can remain but the one task of correctly applying this principle to the language of Mrs. Jackson here involved. It is permissible, in attempting to do that, to take into consideration the circumstances surrounding her at the time, and, when that is done, who can doubt that she merely intended to so dispose of her property in case anything should happen to both Mr. Jackson and herself on that imminent journey, when she unequivocally says that (using practically verbatim the expressions ruled upon in these cited cases), and nothing else? "If anything should happen to us," through the use of both conjunctive and subjunctive words not only thus doubly introduces a condition, but one that was itself two-pronged — that is, whatever happened to her must alike befall Mr. Jackson also; there is no designation of the missive as "last will," or a "will" at all, nor other intimation of its being so intended, like a purpose of changing it, if she came back alive; nor, finally, is there any ambiguity or uncertainty whatever — just the plain, clear statement that what she requested was to be done "for the nonce," or on that condition only.
These considerations, in our opinion, differentiate this case from that of Ferguson v. Ferguson (Tex. Sup.) 45 S.W.2d 1096, 79 A.L.R. 1163, and the similar one of Eaton v. Brown, 193 U.S. 412, 24 S. Ct. 487, 48 L. Ed. 730, and bring it within the rule applied in Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S.W. 1113, and those collated thereunder in our original opinion.
Conspicuous among the latter is Matter of Bittner, 104 Misc. 112, 171 N.Y.S., page 366, in which the deceased wrote a letter to his wife — on the eve of his departure with his son for Europe — to the effect that, if any misfortune should happen to him or his son in going abroad, he wanted his wife to have his property. It appears that nothing happened to either of them. The court, in holding the will to be contingent, on facts thus practically on all fours with those obtaining here, said:
"The will seems plainly to be conditional upon the death of both the decedent and his son. When the whole will is inspired by a possible danger from a definite source, and the gift is made in terms to depend upon a failure to escape such danger, it must be conditional. The cases are irreconcilable, but the best authority, and the most abundant, is in favor of contingency when the sole gift is made to take effect if the decedent shall die upon an intended voyage. * * *
"While it is true that the contemplated voyage in times of unusual peril may have been regarded by the testator as the occasion for making a will, it was also plainly shown in the instrument that the gift was to take effect only in the happening of a fatal event. The most persuasive feature of the paper is that the gift is dependent, not only upon the death of the decedent during the proposed voyage, but upon the death also of his son."
The analogy between the Bittner Case and the one at bar is that, if this contingent request of the wife should be regarded as an *Page 434 absolute will, the husband would be disinherited to the extent of his wife's full half of joint accumulations, which otherwise would go to him by statute. R.S. articles 2578 and 3662. Mr. Jackson in this case, as in the case of the six year old son in the Bittner Case, would take all the property as the wife's heir, unless there was an absolute will. As said in the Bittner Case, the most persuasive feature of the paper is that the gift is dependent, not only upon the death of the writer during the proposed voyage, but upon the death also of his son.
It may be added that this paper was undisputedly shown to have been in the possession of the proponent, Mrs. Jackson's mother, from the date of its execution until after the death of the former; that Mr. Denny had never seen it until shortly before it was offered for probate; that the proponent had been cared for in the home of Mr. and Mrs. Jackson for thirty years before the daughter's death, wherefore, presumably at least, Mrs. Jackson might reasonably have assumed — in conditioning the gift to her mother direct upon something happening to Mr. Jackson too — that, if and so long as he lived, he would continue their provision for the mother; that the property affected had at all times been the community holdings of the husband and wife, who never had any children; and that the record fails to contain any intimation whatever that Mrs. Jackson ever entertained an idea of cutting off her husband from sharing in her part of their common gains.
The motion will be overruled.
Overruled.