
    Lalla Redhead v. Joseph Redhead et al.
    Wills. Recitals of voyage. Occasion of execution.
    
    . If it appear from tlie face of a writing, testamentary in its character, that a contemplated voyage, and the dangers incident thereto, were merely the occasion of its execution, and that the testator’s death while on the voyage was not made a condition upon which its validity depended, it will he operative and may he probated after the testator’s return and subsequent death.
    Eeom the chancery court of Wilkinson county.
    Hon. Widliam P. S. VeNtbess, Chancellor.
    Joseph Redhead, and. others, appellees, propounded for probate an instrument of writing as the last will and testament of John A. Redhead, deceased. Mrs. Redhead, appellant, objected to its probation. An issue devisavií vel non was made up and tried in the court below, resulting in a verdict and judgment for the proponent, the appellee, and the contestant, appellant, appealed to the supreme court. The opinion of the court sufficiently states the facts.
    
      A. G. Shannon, for appellant.
    The ground upon which the will is attached is that it is a contingent will, contingent upon the failure of testator to return from a trip to the Pan-American Exposition at Buffalo, New York. That he returned from this trip and lived for sometime at home and then died.
    That the will begins: “Realizing the uncertainty of life at all times and the dangers incident to travel, I leave this as a memorandum of my wishes, should anything happen to me during my intended trip to Buffalo and other places.”
    Upon this clause appellant mainly relies. It is broadly but inaccurately stated that if the contingency is referred to as the occasion for making tbe will, tben tbe will is good, wbetber tbe contingency happen or not, bnt if tbe contingency is referred to as tbe condition upon wbicb tbe will is to become operative, tben, unless tbe contingency happen, tbe will cannot go into effect. This is about tbe substance of what may be gathered from tbe authorities. 29 Am. & Eng. Enc. Law. 130.
    The language here under discussion applies to tbe condition upon wbicb tbe will shall go into effect.
    It cannot be overlooked that in every will that ever was written, or ever will be written, there is an occasion for making tbe will. It is always present, and without it no will would ever be made. There may be more than one occasion. Tbe apprehension of death is always an occasion figuring in tbe making of every will, upon wbicb alone it can go into effect, no matter bow absolute, or bow contingent its other provisions may be. There may be any number of classes of contingencies in contingent wills. This contingency belongs to that numerous class of contingent wills depending on tbe testator surviving some particular time or event. Of this class it is hardly possible to see bow tbe contingency would not be in all cases tbe occasion of tbe making of tbe will. In the very nature of things, it must be so. Take, for instance, tbe case of Magee v. McNeill, in 41 Miss., where the contingency did not happen, and the supreme court decided that there was no will. Still it is absolutely certain that tbe contingency was exactly tbe occasion for making tbe will, and tbe same may be said of' tbe several cases there cited by this court, in all of wbicb tbe will failed because the contingency did not happen.
    Tben, if this be true, it must be admitted that the broad statement that if tbe contingency is tbe occasion of making the will, tbe will is valid, must be restricted somewhat. If tbe contingency be referred exclusively to tbe occasion of making tbe will, tben it may be a correct proposition, that tbe will is valid in any event. But if tbe testator, notwithstanding tbe fact that the contingency is the occasion of making the will,, nevertheless desires the will to go into effect only on the hap-pending of the condition, it is manifestly still a contingent will.
    If we apply these principles to the language of the will under consideration we will see that it was not to take effect except upon the happening of the contingency.
    
      Bramlette & Tucker, for appellee.
    The will in this case, by its language and terms, shows it to be the intended will of J. A. Redhead, deceased. The uncertainty of life realized by him, and the circumstances mentioned at the outset of the will, were reasons and motives for making it, and it was not conditional upon his doing anything, or of anything happening to him upon his contemplated trip to Buffalo and other places; whether he returned or not, it was his will. 29 Am. & Eng. Enc. Law (1st ed.), 131. Jarver v. Tarver, 9 Peters (U. S.), 114.
   CalhooN, J.,

delivered the opinion of the court.

The will of John A. Redhead begins thus: “Realizing the uncertainty of life at all times, and the dangers incident to travel, I leave this as a memoranda of my wishes should anything happen to me during my intended trip to Buffalo and other places.”' It then makes elaborate disposition of his estate, appoints administrators, and concludes thus: “This is a memoranda of my wishes, and I hope it will be agreeable to all parties concerned,, and they will respect them.” It is dated August 24, 1901. lie took his contemplated trip, got back home in October, 1901> and died there March 4, 1902, without other or further disposition of his property. The chancellor below, on an issue devisavit vel non, admitted this paper as a valid will. We unhesitatingly decide as he did. The dangers incident to his contemplated journey, together with “the uncertainties of life at all times,” were the occasion of his execution of this instrument, and its validity was not contingent upon bis death abroad. 29 Am. & Eng. Enc. Law, pp. 130-132, and notes.

Affirmed.

Tbuly, J., took no part in the decision of this case.  