
    Arndt against Arndt.
    APPEAL from the Register’s Court of Northampton county.
    On the 4th of November, 1812, a paper was exhibited to the register of wills, &c. of Northampton county, for probate, as the last will and testament of Jacob Arndt, late of the borough of Easton, deceased, against which a caveat was entered by George W. Arndt, C. Lambert, and John Arndt, who at the same time filed in the office of the register, another paper which they alleged to be the last will and testament of the said Arndt, dated March 6th, 1803.'
    By the will of 1803, which was regularly proved by the subscribing witnesses, the testator gave to his neice Elizabeth Leidig, 1000 dollars; to his wife, Elizabeth, he gave one half of his estate, both real and personal absolutely, and the other half during her natural life; and after her decease, he gave the said half to “ the male heirs or sons” of his brothers John and Abraham, and his sister Elizabeth Shoemaker, to be divided among them, share and share alike. He then appointed his brother John Arndt, and.his brother-in-law, John Nyce, his executors.
    The paper first presented for probate, and concerning which the present controversy arose, was in the hand writing of Jacob Arndt, except one word which will be hereafter noticed, and was headed “ Memorandum of the last will and “ testament of Jacob Arndt, in the borrow of Easton.” By it the testator directed the executors therein named, to sell all the real estate of which he might die seised, with the exception of two houses, and the lots respectively belonging to them. These he gave to his wife Elizabeth, during her life, together with all his furniture and the income of the whole of his estate. To his brother Abraham, if he should be living at the time of his wife’s death, he gave the rent of one of the said houses, during his natural life. To the two daughters of his • , . . ' sister Elizabeth, and to the daughter of his brother John, 400 dollars each; to be paid in eighteen months after the death of his wife and of his brother Abraham. Several other bequests were made, not necessary to the elucidation of the present case. The residue of his estate, he directed to be divided among the four children of his brother Abraham, after the death of his wife and of that brother.
    
      A testator executesawill in due form in the presence of witnesses. Afterwards he sells part of his real estate, and purchases other real properly. Several years after he draws •up a paper, headed “ Memorandum of the last will,5> &e. by which he makes a different disposition of his , estate, and appoints execu-; tors. This paper he shows to a third person, and requests him toputitin form. Some apparent inconsistencies are pointed out, and the testator is advised to apply • to counsel.
    He says, he •will do so; but survives the conversation five months, . during which he is of sound mind amb capable of doing business, and then dies without having made any alteration in the paper, and having in his possession the former will uncancelled.
    Held, that the paper being proved by two witnesses,‘to be in the hand writing of the testator, it is a good will under the law of Pennsylvania, and revokes the former will, so far as it is inconsistent therewith. 'Yeates J. contra.
    
      The 5th and 6th clauses which were alleged by the persons who entered the caveat, to be inconsistent with each other, were in the following words :
    5th. “ After all the foregoing are complied with, and after “ the death of my wife, and brother Abraham, I order and “ direct my excutors to make sale of the two houses and lots “ before mentioned, at public sale ; giving my said executors “ full power and authority, to make deed or deeds for the “ same, as will stand good in law, as if I had done it myself, “ in my lifetime.”
    6th. “ After the sale so made, my wife shall have liberty in her lifetime, to make a will, and will to whom she pleases, “ one half, of the estate which is not heretofore bequeathed, “ &c.”
    The wife of the testator was named executrix, and his brother Abraham Arndt, and his brother-in-law John Nice, executors.
    It appeared, that at the time the first Will was made, in 1803, the personal estate of the testator amounted to 12,000 dollars, and that his real estate was of the value of 8000 dollars. After that period, however, he made considerable changes in his estate, both by purchase and sale, and at the time of his death, nearly the whole of his property consisted of real estate.
    In proof of these facts, the following deeds were given in evidence:
    Deed from Jacob Arndt and wife, to the President, Directors, and Company of the Bank of Pennsylvania, for lot, No. 94, in the borough of Easton, dated August 1st, 1808.
    Deed from Jacob Herster and wife, and Peter Miller, to Jacob Arndt, for lots, No. 82, and No. 83, in the borough of Easton, dated November 7th, 1808.
    Deed from Naphthali Hart and wife, and Jacob Hart and wife, to Jacob Arndt and John Herster, as tenants in common for a messuage, and the greater part of lots, No. 88, and No. 89, in the borough of Easton, dated April, 11th 1812. ■ ■
    
      John Herster proved the paper in question to be in the hand writing of Jacob Arndt, except the word u Elizabeth”inserted between the 7th and 8th lines of the first page.
    
      Robert Traill also proved the paper to be in'the hand writing of Jacob Arndt, except the word “ Elizabeth” which was inserted by himself in the presence of Mr. Arndt. He also deposed, that towards the end of May, or beginning of ■June, 1812, Mr. Arndt called at his office with the paper now contested, which he said was a memorandum of his last will and testament, and which he requested the deponent to put in form for him. After having looked over it, the deponent made the insertion above mentioned, and requested that it might be left with him for consideration. That about two' weeks afterwards, Mr. Arndt having called again, the deponent told him, that he had examined the paper and found some things in it rather incon-istent; pointed out the inconsistency between the 5th and 6th clauses, and advised him to apply to some other person, as he did not clearly understand' it; and for that purpose mentioned Mr. Sitgreaves. Mr.' Arndt, having looked over the paper, observed, that it was so, and that he believed he would go to Mr. Sitgreaves. He then went away. The deponent had no conversation afterwards on the subject with Mr. Arndt, but supposed that he had made a will, as he then appeared so urgent to have it done. That the will of 1803, was drawn by the deponent from a memorandum furnished him by Mr. Arndt, in his own hand writing, similar to the contested paper, and which was afterwards destroyed by the deponent.
    In addition to the preceding testimony, the following facts were admitted by the parties :
    That Jacob Arndt was struck with an apoplexy, on the morning of the 27th of October, 1812: That he was senseless from that time, until the morning of the following day, when he died : That from the time the paper in controversy was returned to him by Mr. Traill, until he was struck with an apoplexy, Mr. Arndt was generally in health, and competent to the transaction of business : That a few days be-, fore his death, he made an entry in his books, of the bonds due to him, classed according to the time of their becoming payable ; entries of a similar kind he had made at different times previously: That he had no children, and that his wife, to whom he had been married upwards of thirty years, survived him : That the paper purporting to be the will of 1803, was produced in consequence of notice served on the counsel of the parties exhibiting the subsequent paper for probate.
    On the 6th of March, 1813, the Register’s Court, without argument, and in the absence of the president, decided; That the paper or writing in question, exhibited for probate, on the 4th of November, 1812, as the last will and testament of Jacob Arndt, late of the borough of Easton, Esq. deceased, cannot be taken and accepted as the last will and testament of the said Jacob Arndt.
    
    From this decision the executors therein named, appealed to the Supreme Court, where the cause was argued on the 28th of December, 1814.
    
      Scott for the appellants.
    The paper exhibited by the appellants as the last will of Jacob Arndt, being in his hand writing, and proved by two witnesses, comes within the provisions of the act of assembly, of 1705, 1 Sm. Laxos, 33, although it is not subscribed by the testator, nor by witnesses. Provided the animus testandi, the vital principle of every instrument of this kind, can be discovered, it is a good will.
    The disposition of the estate was perfectly equitable. Mr. Arndt had no children ; he had lived upwards of thirty years with his wife, for whom, it appears, he always intended to make an ample provision. In 1803, when his first will was made, his personal estate amounted to 12,000 dollars; his real estate was worth 8000 dollars. Of this, with the exception of 100Ó dollars, bequeathed to Elizabeth Leidig, he gave half to his wife absolutely, and the other half during her life. After the year 1803, Mr. Arndt converted the greater part of his personal property into real estate, which at the time Of his death was worth about 20,000 dollars. In order therefore, to provide for his wife according to his original intentions, it was necessary to make a new will, as it is settled law, that after-purchased lands do not pass. 1 Broton Par. cas. 199. With respect to the rest of his relations, it is plain from the paper in controversy, that the feelings of the testator had experienced a considerable change.
    The word « Memorandum,” at the beginning of the paper, and the circumstance of its notbeing signed by the testator, and attested by witnesses, afford no presumption of a want of the animus testandi. Carlton v. Griffin.
      
       Much looser and more informal instruments than the disputed paper, have frequently been established as testamentary. Sid. 315. Limbrey v. Mason.
      Roberts on Wills, 21. 196, 7, 8, 9. If upon the face of the will it appear, that something further was intended to be done, which the testator, having time and opportunity, omits to do, it cannot be admitted to probate. Such, according to the late decisions in England,, seems to be the law. Roberts on Wills, 200. But this was not the case on the present occasion. When Mr. Traill suggested that there was an inconsistency in the paper handed to him, Mr. Arndt, at first, supposed that there was. But in fact there was no inconsistency ; the sale spoken of in the sixth clause being that directed to be made by the executors in the commencement of the will, and not that mentioned in the clause immediately preceding. Upon reflection, Mr. Arndt probably perceived that there was no inconsistency; and knowing perhaps, that in point of law, it was sufficient, provided it disclosed his settled and final determination, he resolved not to apply to Mr. Sitgreaves, but to let it stand as it was. The case of Catharine Lloyd’s will is applicable, and strongly in favour of the appellants. There the testatrix wrote a letter to her attorney, directing the manner in which her estate should go after her death, by way of instructions to him for drawing her will; and added, “ this you have under my hand, if any “ thing should happen before writing drawn up.” She survived the writing of this letter four months, but took no fur•ther steps towards the completion of the will. The prerogative court considering this letter conditional, and to take effect only in case she died suddenly, pronounced against it; but on appeal to the delegates this decision was reversed.
    Before the counsel for the appellees went on, Mr. Tilghman cited the following cases, Hight v. Wilson,
      
       Lewis v. Maris,
      
       Harvard v. Davis,
      
       Walmsley v. Read. He also mentioned the wills of John Roberts, and of Alexander Wilcocks Esq.
    
      
      Chauncey and Binney, for the appellees,
    insisted that the disputed paper ought not to be received as the will of Jacob Arndt, — First, Because it was not proved to contain his settled and final determination, with respect to the disposition of his estate. Secondly, Because the omission to perfect the instrument, not being accounted for, a presumption arises against it; and that presumption is greatly increased by the circumstance of there being a perfect will in existence.
    In order to give effect to every instrument of a testamentary nature, the animus testandi must be apparent upon the face of it. It must appear that the testator intended that it should operate as it stood; for if he contemplated any further act towards its completion, and without being prevented by circumstances not under his controul, omitted to perform that act, it must be supposed that he had abandoned the idea of making such a will. Therefore mere notes for drawing a will do not amount to a will. 3 Swinb. 970. pl. 7. sec. 13. Shep. Touch. 404. c. 23. So far is the law carried, that if the testator intended to alter any thing, the animus testandi is wanting; for the court.cannot decide whether the alteration would be material or immaterial. 1 Swinb. 12. According to the old cases, it was sufficient if the intention were consummate, although something further were contemplated in point of form; but from the later authorities it appears, that-" the law has undergone a change in England. Roberts on Wills, 200. The testator must have a serious and setded intention to make such a will. 7 Bacon, 299. 303. Wills, A and C. 8 Fin. 118. Devise, n. pl. 2. 11. With this principle all the authorities correspond. In Powel v. Berresford, 
      
       where the testator said, “ I do make this my last will and testament for fear of mortality, till I can settle it more at “ large,” the will was, it is true, established by the delegates, reversing the decision of the prerogative court; but in that case there was an express declaration that-it should take effect as it was, if he could not “settle it more at large.” The will was also established in Warlick v. Pollet, cited in Roberts on Wills, 198, although it contained the words, signed and sealed, £s?c. and yet there was no signature; because it was proved that after the paper was drawn the testatrix said it was her will.
    
      In the case of Walmsley’s will,
      
       there was 'proof by two “witnesses that the writing corresponded exactly with the verbal instructions given for drawing the will. If a man draw up a testamentary paper and send it to counsel to be advised of the legality of it, it is no will, unless, after it is returned to 'him, he republishes it as such. Bartlett v. Ransdon,
      
       Roberts on Wills, 137. Such are the principles of law, which are too well established, now to' be called in question. To apply these principles to the facts. Mr. Arndt never said he wished this paper to stand as his will in case he should go off suddenly, or any thing to that effect. He said it was a memorandum of his will, which he wished Mr. Traill to put in form, and about which he no doubt intended to ask his advice. He, nevertheless, suffered five months to elapse after his conversation with that gentleman, during which period he enjoyed health and understanding, and then died without having taken any step in order to perfect this memorandum. From these circumstances a strong presumption arises, that he had abandoned the idea of making a new will, and that he intended to abide by the will of 1803, which was perfect, and which remained uncancelled.
    
      E. Tilghman, in reply.
    Since the will of 1803, the circumstances of Jacob Arndt’s estate have been so much changed, that if the paper in question be rejected, he has died intestate as to a great part of his property, although it is evident, that it was not his wish to die intestate as to any part of it. The paper now set. up wants nothing under the law. of Pennsylvania to make it a perfect will. The whole of it is proved to be in Arndt’s hand writing, except the word “ Eli-u zabeth,” which is superfluous, and was added in his presence. It is true it is without signature or date, but it was certainly made after the deed from Herster and Miller, of the 7th November, 1808, because one of the two lots conveyed by that deed, is mentioned in the will. If this paper had never been shewn to Mr. Traill, but had been found among Mr. Arndt’s papers after his death, proof of the hand writing by two witnesses would have been sufficient under the act of assembly. The objection that it is called a memorandum, is without force, because it refers to nothing further to be done. It contains an absolute disposition of the whole of the testator’s estate, and evinces his final determination with re-' spect to it. The result of all the cases is, that manner is nothing, intention every thing; and as the only alteration contemplated when Mr. Arndt applied to Traill was in matter of form, the paper cannot be affected by that circumstance.
    
      
       1 Burr. 549.
    
    
      
      
         2 Com. Rep. 452.
    
    
      
       4 Vesey, jr. 200. note.
      
    
    
      
      
         1 Dall. 94.
    
    
      
       1 Dall. 278.
    
    
      
       2 Binn. 414.
    
    
      
       1 Smith’s Laws, 39, note.
      
    
    
      
       2 Ld. Raymond, 1283.
    
    
      
      
         1 Smith’s Laws, 39.
      
    
    
      
      
         8 Viner, 118. Devise, n. 2. pl. 16.
    
   This day the Court delivered the following opinions:

Tilghman C. J.

The paper exhibited as the will of Jacob Arndt, is of his own hand writing ; it disposes of his whole estate, and appoints executors. So that proof being made of the hand writing by two witnesses, it would be a perfect will by the law of Pennsylvania. This is a very strong circumstance in the case, and one that distinguishes it from most that have occurred. I think too, that there can be no doubt, but it contained the whole substance of what he intended for his will. It ought, therefore, to be supported, if it can be done without violating the law. The hand writing of the testator has been proved. What then prevents it from being established as his will ? It is not his will, say its opponents, because, from the evidence it appears that the animus testandi was wanting. This is resting the cause on its true point. There is no difficulty in the law. All the cases that have been, or can be cited, will be narrowed at last to this simple question. Does it appear from the evidence, that the testator intended the contents of this writing for his last will ? Being on its face a complete will, it lies on those who object to it to show in what it is deficient. The testimony of Mr. Traill is relied on. Arndt carried the paper to him, and requested him to put it into form, saying that it contained a memorandum of his -will. Traill read it over, inserted the name of Elizabeth in the devise to the wife, (an addition proper, but not at all necessary) desired him to leave the paper, and told him that he would consider on it. In about two weeks, Arndt called again, Traill told him “ he had examined the paper and had “found something in it rather inconsistentf 'pointed out the inconsistencies between the 5th and 6th clauses, and advised him to apply to Mr. Sitgreaves for assistance, as he (Traill) did not clearly understand the subject. Arndt then looked over the paper, said it was as Traill had told him, and that he believed, he would go to Mr. Sitgreaves, who on a former occasion had offered him his services. This is all that Traill "knows of the matter. Arndt lived about five months after this conversation, which took place in June, 1812. It does not appear that he ever spoke to Mr. Sitgreaves on the subject of his will. When he died, this paper was in his possession, and also a will drawn in the year 1803, by Traill (from written notes furnished by the testator), signed by him, and regularly executed in the presence of two subscribing witnesses. The circumstance of his keeping the prior will uncancelled, is relied on to prove, that he meant that to stand for his will, until the latter should be reduced to form and executed. It certainly is a circumstance deserving of consideration. But it is outweighed by stronger circumstances. It will appear on an examination of the two writings, that the mind of Arndt had undergone a great change with regard to two of his brothers and their families. Add to this, that having acquired the most valuable part of his real estate subsequent to the making of the will of 1803, if that is to stand for his will, he died intestate as to all the after purchased property, which is contrary to his intention, because, by both wills he disposed of the whole of his estate. Considering all circumstances then, I should conclude that he retained the written memorandum now exhibited, intending it to stand as his will, in case he should die without reducing it to more perfect form; unless it appears, that the inconsistencies pointed out by Traill were such as to involve a contradiction, or tend to some absurdity. The inconsistency is this, In the 5th clause, he authorises his executors to sell certain houses and lots after the death of his wife and his brother Abraham. In the 6th clause, he gives his wife liberty, after the sale made, in her life time to make a will, and will to whom she pleases, one-half of the estate which was not before bequeathed. The houses and lots are not to be sold till after her death, yet during her life, and after the sale, she is to make a will. The inconsistency is not material. The mode of expression is awkward, but no one can doubt of the meaning, which is, that she may make a will, and thereby dispose of one-half of certain property, including the proceeds of sale of certain houses and lots which are not to be sold till after her death. It has been remarked also, that the 5th clause is not consistent with itself. It directs the three executors to sell and convey certain property, which is not to be sold till after the death of two of them. (the wife of Arndt and his brother Abrahani). This is true. But the surviving executor will have power to sell, so that the will would not be defeated.

It does not appear, however, that this last objection was pointed out by Traill, or had any influence on the mind of Arndt. So that after all, he kept in his possession, to the time of his death, a writing called a memorandum, purporting to dispose of all his property, and effectual for that purpose both in form and substance. That he himself supposed it to be effectual, (although he might intend to give it better form and more solemnity), there is strong reason to conclude, from his doing nothing further in the course of five months, and if he did suppose it to be effectual, nothing more is wanting; that supposition is itself the animus testandi. I am, therefore, of opinion, that the decree of the Register’s Court should be reversed, and the paper in question, received and established as the last will and testament of Jacob Arndt.

Ye ates J.

If the written memorandum of Jacob Arndt, drawn up by himself, (in all probability in 1812,) had stood on the proof by two witnesses, that it was in his own hand writing, independently of the conversations had with Robert Traill respecting it, I have no doubt, that it would have operated as a valid will. It had all the solemnities required by our law, and containing dispositions of his property, real and personal, inconsistent with his former will, of March 6th, 1803, necessarily revoked the same, as both could not stand together.

It has been contended on the part of the appellants, that these conversations can have no influence on our decision; but I cannot accede thereto. The true question in this case must be, whether the disputed paper, was in truth designed by Arndt, as his last will, containing a disposition of his property to take effect after his death ? We are told in the books, there must be the animus testandi, a firm resolution and advised determination to make a will% The mind and intention are every thing, the manner nothing. (Roberts on Wills, 201.) The mind and intention of a man are to be collected, not only from what he does, but what he says. Acts in themselves may be equivocal, and therefore subject to explanation from attendant circumstances, and declarations of the party. And hence, parol evidence has been admitted to show, whether the deceased by cancelling a subsequent will, meant to revive a former one, or to die intestate. Boudinot et al. v. Bradford, 2 Dall. 266, Lawson v. Morrison et al. Ib. 286.

It has also been contended, that as the instrument of 1812 carries upon the face of it no evidence of an intention to perfect it by some further solemnity, it shall be deemed to be the will of Arndt, and that extrinsic evidence cannot be received against it. I admit, that this distinction seems to have taken place in the later determinations, at Doctors’ Commons, (according to Roberts on Wills, 198); but I can find no such discrimination in the English cases previous to the American revolution. The remarks I have already made are applicable to this objection. Was it the settled resolve of the testator’s mind, that the instrument in question should be a substitute for his will of 1803, formally executed in the presence of subscribing witnesses ? If several witnesses of undoubted credit, had sworn, that after Arndt had thus drawn up the paper, he had declared, that he meant it only as rough notes for his counsel to draw his will, and that his former will was considered by him to be in force, until such new will was formally executed, I think little doubt could be entertained, that this was not his will: the animus testandi would be wanting, which alone could give it life and vigour.

Having thus disposed of these two points, to my own satisfaction at least, I proceed to consider the effect of Mr. Traill’s testimony, from which no doubt others may draw different conclusions.

The testator brought to him the paper, which he said was a memorandum of.his last will and testament, and requested him to put it into form. He looked over it,, and it was left with him for consideration. About a fortnight afterwards, Arndt called again, when an inconsistency waspointed out to him in a certain part of the paper, and he was advised to apply to some other person, as Traill did not clearly understand it' — Mr. Sitgreaves was named — -Arndt looked o.ver the paper, and said it was as Traill had told him, .and believed he would go to Mr. Sitgreaves. He thanked Mr. Traill and left him* and he continued of sound mind and. memory until the day preceding his death, which took.place between four and five months afterwards. , • .. .

The inconsistency pointed out by Mr. Traill, is evident on inspection of the will»- . .In the 5th. item,..it is,.directed, that after the death of the testator’s wife, and his brother Abraham, his executors should sell two certain houses, &c. The next item provides, that after the sale so made, his wife should have the power of devising one-half of the estate not before bequeathed, &c. His wife, his brother Abraham, and John Nice, are appointed his executors in the last clause : after the decease of the two former, one executor only would be left to sell.- Substance, as well as form, was wanting to render this an accuráte disposition of Jacob Arndt's property.

The features of this case upon the testimoney of Traill, much resemble that of Bartlett v. Ransden et al. Trin. 15. Car. 2. in B. R. which preceded the statute of frauds. It is reported in 8 Fin. 118, pi. 16, and is recognised by Roberts in his Treatise on Wills, 137. There the testator drew up, his own will, and sent it to counsel to be advised of the legality of it; and it was held to be no will, unless it had been published after it had been received back.

Arndt appeared urgent to Traill to have the will drawn, from which circumstance he supposed it to have been done. How then can we account for his not completing this business, unless we suppose, that his intention was suspended from what passed in his last interview. He concurred with Traill upon his showing to him, what seemed rather inconsistent in his dispositions. When did he return to his former state of mind ? And how long did it last ? A design to make a will, containing certain dispositions of the party’s whole property, but looking forward to something further to be done before its final completion, if such other matter remains unexecuted, is clearly inoperative in my idea, though the design was reduced to writing. We are not at liberty to indulge conjecture as to any change or settled purpose of his mind at subsequent periods of time. We have no data in the evidence from which we can draw any reasonable conclusions. Unless we are satisfied, that the instrument propounded, was meant by him to operate as his will after his death, I do not see how we can establish it. Preserving also fhe will of 1803, uncancelled, fortifies the presumption contended for by the appellees : from what the t^tator had before done, and from his application to Traill to draw his will from the sketch prepared by himself, we may well infer what Were his ideas of a perfect will, and that he did not intend this memorandum as such. The circumstance of keeping this memorandum uncancelled, is of no great weight with me, when I reflect on the unsettled state of his mind in his last interview with Traill, and that the same argument applies with equal force at least, as to the regularly executed will of 1803.

Upon the whole, I am of opinion, that the decree of the Register’s Court be affirmed.

Brackenridge J.

I incline to support the paper of 1812, as the will of Jacob Arndt. It was his will when he brought it to Traill, subject to such alteration in matter of form as he ('Traill) might think it necessary to make. It was his will when he took it away subject to such alteration, in matter of form, as Mr. Sitgreaves might advise to be made. Still it was only as to form that any alteration was contemplated to be made. I am not of opinion that any alteration as to form could have made it better. There is no inconsistency between the fifth and sixth sections, as Traill would seem to have supposed. The sale spoken Of in the sixth section does not refer to the sale spoken of in the fifth, but to the sale spoken of in the introductory part of-the will, and before the bequests began; the sale of all his estate, the two houses excepted. There are two sales spoken of, one in the first instance and one in the last. The sale spoken of in the sixth section refers to the sale spoken of in the first instance, for that was a sale in the wife’s lifetime. But the sale spoken of in the fifth section was that of a sale after the wife’s death, for it was of a sale of property that could not be sold until after her death. The testator, therefore, seeing no inconsistency, as there was none, upon re-examination, may be presumed to have rested upon the will as made, and to have put an end to his deliberation as to the form of the will, and the arrangement of the dispositions and perspicuity of terms which was the only thing he would seem to have had any deliberation about. Form and not substance, was the only thing he could be said to have had any idea of altering. If he had taken away the paper with the idea of putting in the word Elizabeth, th<?name of his wife, a thing totally unnecessary, as he had not two wives at the time, would it be said, that in this case it did not remain his will ? I apply the same thing to the want of the words, “ sale so made in the first instance,” in the sixth section, because the meaning must be sale so .made in the first instance, for ,the sale so spoken of was a sale to be made in the lifetime of the wife.

Decree reversed.  