dissented.
The question whether the paper signed and written by William T. French, dated March 7, 1872, was a con ditional will must be determined by the words of the will itself, construed by the light of the circumstances surrounding the testator when he wrote. The paper is in these words:
“Let all men know hereby, if I get drowned, this *508morning, March 7, 1872, that I bequeath all my property, personal and real, to my beloved wife Florence. “Witness my hand and seal, 7th March, 1872.
“William T. FreNch.”
The only circumstances surrounding the testator when he wrote this will, which can throw any light on its meaning, are these: That he then had a wife, Florence, the defendant, and no children; that if he had died without making a will on the morning of March 7, 1872, when the will was made, she, as his sole heir and distrib-utee, would have got all his property, personal and real; that he was, when he wrote this paper, about to cross a river which was deep, and he might in crossing it be drowned.
There were no other circumstances surrounding the writing of this paper, which can possibly throw any light on the meaning of this paper. The decisions, which have been cited by my brother Haymond, show clearly that a person may make a conditional will. This is not controverted by a single case. But in order to make a conditional will, the intention of the testator to do so must appear very clearly on the face of the will.- Now on the face of this will the purposes of the testator to make the bequest of all his property, real and personal, to his wife conditional upon his being drowned that morning, is as clear and distinct as it is possible to make it by the use of the English language.
There are, it is true, cases which have gone even further and held, that where the language of the testator used in his will is such that according to their usual signification it would make the will conditional, still the court, if they can find in any part of the will, or in the surrounding circumstances under which it was written, anything which will enable the court to interpret the will as merely indicating the motive -which induced the testator to make this will at the time it was made, they will so interpret the will, and hold it not to be conditional.
Beyond this the courts have never gone; and in fact it *509is impossible to conceive bow they cpuld go further than this, without holding that they could convert a conditional will into an unconditional one without being able to find in the will itself, or in the surrounding circumstances, any reason for doing such violence to the expressed purposes of the testator; in other words, without holding that the courts may, if they deem a conditional will unreasonable, set it aside and make a new and unconditional will for the testator, though no indication can be found in the will itself, or in the surrounding circumstances under which it was made, by which the testator’s words can be interpreted as doing otherwise than making his will conditional.
None of the cases cited by my brother Haymond, and none which I have been able to find, go farther than to hold that a will, conditional on its face, may be interpreted to be unconditional, when the court can find in other parts of the will, or in the surrounding circumstances under which it was made, reason to believe that the testator, though he used language which would, in ordinary signification, make his will conditional, nevertheless only meant to assign the motive which induced the testator to make this particular will at the particular time it was made.
All the cases do not go this far. But let us admit that to be the law ; and let us then apply it to the case before, us. The language of the will on its face makes it clearly a conditional will. But according to the law as laid down in the case most favorable to the views of the ap-pellee, if we can find in any portion of this will, or in any of the surrounding circumstances under which it was written, any reason to believe that the testator meant by the words “if I get drowned this morning, March 7, 1872, I bequeath all my property to my wife,” simply to indicate,.that the motive he had in making this will on the morning of March 7, 1872, whereby he gave all his property to his wife, was his apprehension that he might be drowned that morning, I admit there are deci-*510sious, which if followed, would enable us if this 'was all the testator meant, to hold- the will unconditional. But if we can lind in the will itself, and in the surrounding circumstances under which it was written, no reason lo believe that by the words “if I get drowned this morning, March 7, 1872, 1 bequeath all my properly to my wife,” tire testator could possibly have meant to express his motive for making that particular will at that particular time, then no decision lias been referred toby my brother Haymond, and I have found none, which wonkl justify us in violating the clear language of the testator by declaring this will unconditional.
In so doing wc would make the emphatic words “if I get drowned this morning, March 7, 1872,” to mean nothing. If this language cannot be construed to indicate the testator’s motive for making this will, they must be construed to make the will conditional, or they must be regarded as if they were not in the will; and this last alternative lias never been adopted by any court in any case, and cannot be without setting aside the testator’s clearly expressed will, and making another will for him.
It remains then to enquire whether by the words “if 1 get drowned this morning', March 7, 1872, J bequeath all my property, personal and real, to my wife,” the testator conld possibly have meant “as I may get drowned this morning, I therefore now make my will and give all my property, real and personal, to my wife.”
I think it is self-evident that this could not possibly be what was meant by the testator in using the words “it 1 get drowned this morning,” because in the. circumstances, which actually surrounded the testator, the fact, that he might get drowned that morning, could not possibly be any reason wliy he should then make a will, simply giving all his property to his wife. For the testator knew, if he got drowned that morning, that by the law his wife would get all his property, real and personal, This apprehension then that he might be drowned *511this morning, could not by any possibility be the reason Avhy he .then made this Avill. And yet to make this Avill unconditional Ave must construe the plain Avords “if I get drowned this morning, I give all my property to my Avife,” to mean an indication by the testator, that his apprehension of getting droAvned that morning was the motive for making this Avill. This Ave have .seen could not possibly be his motive in then making that will. And yet Ave are required in order to come to the conclusion that this is unconditional, not simply to pervert the plain and unambiguous language of the testator, but to make him assign as a reason for then making this Avill, a reason Avhieh could not possibly have operated upon him.
If the Avill had made any other disposition of the testator’s property other than precisely that Avhieh the law then made, or had even merely named an executor, 1 can see clearly, that the apprehension that he might be drowned that morning might have been a good reason for making such a will. For his object then might have well been to make a different disposition from what he knew the law would do, if he Avas drowned that morning; or in case he made no different disposition of his property, but simply appointed an executor, this Avould have iurnished him a motive for making a will then, as if he were drowned that morning the only Avay in which he could name the person, avIio was to be his representative after his death, Avas by making his will. But he could have had no possible motive in making the Avill he did to avoid the consequences of his being drowned that morning ; for it Avould have avoided none, of these consequences.
We are therefore compelled to construe this will as a conditional will. And there is no possible way of avoiding this conclusion except by striking out from the Avill these emphatic words, “if I get drowned this morning March 7, 1872,” Avords, which it was obvious Avere inserted by the testator for a purpose, and which constitute a third of the testator’s Avhole Avill. It- is said however *512that if these words were permitted to remain in the will; 'it would necessarily render it idle and nugatory. That is perfectly true. And that they render the will necessarily idle and nugatory furnishes a strong reason why we should if possible give them some other than their literal meaning. But we have seen it is impossible to give to these words any other than their plain ' literal meaning; for if we did, we would make the testator do a thing quite as absurd as making an idle and nugatory will, that is, we would make him .assign as a reason for his then making the will, which he made, a reason which could not possibly have operated upon him, but which must necessarily have had exactly the opposite effect; a reason which must have then prevented him from making this will. If then we cannot without being guilty of a palpable absurdity change the meaning of these words: “If I get drowned this morning,” can we simply disregard them, because they render the will idle or nugatory ? Can we strike out important words in a will, which can possibly bear but one construction, and the clear meaning of which the surrounding circumstances show the testator well knew, in order to prevent the will from being idle or absurd, and when by so doing we make a will for the ¿testator entirely different from anything, which we can gather from the will itself, he intended ?
■. It seems to me this would be exceeding the powers of any court. It would be clearly not interpreting the will, ■ but making a will for the testator. It would not be even professing to interpret the will, as it proposes to strike out of it words admitted to have but one clear meaning, and that too, a most important meaning. The fact that these words make the paper necessarily idle, can in this case only raise a suspicion, that it was not intended by the writer as his will, that it was not really testamentary; but intended by the testator at the time he wrote it to have no effect at all; a suspicion strengthened by its being written in pencil, which may be inferred from the defendant’s proving he was in the habit of *513writing with a pencil. Np one was present when this will was written except the testator's wife and a lady, who is' the wife now of the plaintiff in this suit, and who of course cannot testify under what circumstances this paper was written, or what was then said by the testator to indicate whether the writer of this paper wrote it as a will oras a jest. The testator's widow, the defendant in this suit, was obviously equally incompetent to testify, if she had been objected to as a witness. But she was examined by the plaintiff; and it may be this makes her statements evidence, though I am by no means prepared to say, that the wife or widow may give in evidence the confidential statements of the husband, even when she is introduced as a witness by consent of all parties. It seems to me that perhaps the public policy may, after a husband is dead, forbid his widow to so testify in any such case. The confidential intercourse between husband and wife may be seriously embarrassed, if the wife under any circumstances can testify as to such confidential communications after his death.
The testimony about what the testator afterwards said about this paper was of course not proper evidence to be considered in this case. Excluding this improper testimony, and it is in my mind very questionable whether the writer of this paper ever intended it to be regarded as his will. But in the view I take of the case this en-quiry is unimportant. Tf this paper had been in writing, and formally signed in the presence of attesting witnessess as the will of the testator, it would not have altered this case materially. It would then have been unquestionably the will of William T. French, when he made it, but in my judgment it would have clearly been a conditional will; and as-the condition, on which it was to take effect as a will, never arose, it can of course have no operation as a will.
Decree Affirmed.