Clarke

The instrument in question is not in form a testamentary disposition. It is the mere expression of a wish that the proponent should, after the death of Mrs. Gordon, have the sum of money, and the articles therein mentioned. The instrument, therefore, cannot be considered either as a will or codicil entitling it to be admitted to probate as such, unless from the circumstances attending its execution it can be held to be such, and this is conceded by my associates. But the circumstances in evidence, so far from showing that Mrs. Gordon intended the instrument as a will or codicil, affirmatively show the contrary. It appears that the purpose of Mrs. Gordon was merely to charge Clarke, as being her general devisee and legatee, with the payment of the money and delivery of the articles mentioned in the instrument. She and the proponent, at the time the instrument was prepared, discussed the probabilities as to Clarke’s respecting her verbal wishes in that respect, expressed by her on previous occasions. The conclusion arrived at was that he would not do so. The instrument was then prepared and delivered to the proponent, upon her express promise that she would not exhibit it to Clarke…

The question to be determined is, whether the paper propounded by Miss Bansom, and which is entirely in the handwriting of the late Mrs. Gordon, and was written during her last illness, is entitled to probate as an olographic will. It is not denied that at the time when it was written Mrs. Gordon was of sound mind, and wrote it under the belief that her death was near at hand, as in fact it was. The point chiefly discussed by counsel is, whether the paper is or was designed to be testamentary in character. It was dated June 23, 1874, a few days before Mrs. Gordon’s death, and is in these words:

On its face there is nothing to indicate that it was intended to be testamentary. The full name of the beneficiary is not mentioned, nor is there any reference to the antici-

*600 pated death of Mrs. Gordon. Aside from the surrounding circumstances, as developed by the oral testimony, the instrument on its face simply expresses a desire, or at most an intention, on the part of Mrs. Gordon, to give to the person designated as “Dear Old Nance” the watch and shawls, together with $5000. It clearly appears, however, from the testimony, without contradiction, that Miss Ransom is the person…