
    Wagner vs. M'Donald.
    A paper was exhibited for record as the last will of C W, proved to liave been signed by him at a time when he was about to leave the state. It was written somewhat in the form of a letter, and stated “Ii'I should not come to you again, my son M sha’l pay,” &e. Evidence was given that CW weuilo Kentucky, and returned, and that he lived for several weeks thereafter— JIeld9 that the paper could not be admitted to record as the last will of CW,
    
    Appeal from the Orphans Court of Frederick county.' A paper, purporting to be the wilL of Michael Wagner, written in the Dutch language, of which the following is a translation, wás exhibited to the orphans cout’tfor record by the appellee, who had married Elizabeth Schreiner, oné of the legatees therein named* viz. “In the name of God, Amen. If I should not come to you again, my son Michael Wagner shall pay, out of Christian Wagner's bond, which I have from him, to Elizabeth Schreiner seventy pounds, and that in the year 1798, the 10th of May; and to Michael Roether thirty pounds in the year 1799, the 10th of May. The remaining fifty pounds you shall divide amongst youj that is, Michael Wagner and John Wagner, and Christian Wagner and Roether's children, and Catherine Schreiner's 8 children, and the money shall be put on interest till they come of age. Farther what I yet have with Christian, that is, 1 cow* 1 house clock, bed and bedsteads, clothes press, table, copper kettle, bible, of Ihpse Eve Sherman shall have share too like the rest* So much from me.
    
      Michael Wagner
    
    
      May 4th, 1795.”
    A citation was ordered and issued for the representatives of the decéased, &c. Proof was made of the handwriting of Michael Wagner, (deceased,) and that he was, in the year 1795, of sound disposing mind, memory and understanding. It was also proved that he lived, with Christian Wagner in Liberty Town, and went to Kentucky in the spring, about the 7th of 8th of May 1795,- and returned to Christian Wagner's after harvest in the game year, and said on his return that he was well; that he continued so for four days, and after that he lay sick three weeks, when he died. The orphans court decreed that the paper should be recorded as the last will of Michael Wagner, deceased. From this decree this appeal was brought by Christian Wagner, who (among others,.) had been summoned, but who alone appeared to and contested the proceedings.
    The cause was argued befoi-e Chase, Ch, J. Buchanan;., and Nicholson, j.
    
      
      Taney, for the Appellant,
    contended that the p'aper exhibited was to take effect as a will if the writer did not return; and as he did return, it can have no effect. A will to take effect on a contingency, has none if the contingency does not happen. Parsons vs. Lanoe, 1 Ves. 190. S. C. Amb. 557. Lugg vs. Lugg, 2 Salk. 592 S. C. 1 Ld. Raym. 441.
    
      Shanjf, for the Appellee,
    contended, that it did not appear ihat the appellant had any interest in or right under the will to justify his contesting its being admitted to record, and appealing to this court front the decision of the (orphans court. lie admitted that the orphans court wens wrong in their decision,
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