¶1 There can be no doubt that a testator may make a paper-writing, referred to, but not set forth in his will, a part of it. But to do so, such paper must be described and identified with such particularity as to designate and clearly show, and so that the Court can certainly see what paper is meant to be made part of the will. The paper must be written before or contemporaneously with the will, and not one to be written subsequent to the time it was executed. This is so, because the will must certainly express the testator’s intention. And such paper, whether attested or not, will be part of the will. Chambers v. McDaniel, 6 Ired., 226; Bailey v. Bailey, 7 Jones, 44; Johnson v. Clarkson, 3 Rich. (S. C.), 305; Tonnelle v. Hall, 4 Comstock, 140; 1 Red. on Wills, § 261; Theobold’s Law of Wills, 60.
¶2*303 It seems to us clear that the testator intended that the agreement referred to in the clause of his will above recited, and under which the defendants claim title to the land in controversy, should constitute part of that clause and, therefore, part of his will. It is distinctly referred to, and described with such particularity as to the parties to it and its purpose, as that there could scarcely be a mistake in identifying it as the agreement executed at the time of or before the execution of the will itself. It is intended that it should be part of, give character and distinctive purpose to, the devise. It expressed and embodied “ the terms and conditions” upon which the devise was made — it was made an essential and material part of the devising clause.
¶3 In the absence of the agreement referred to, it is impossible to determine what the devise in question was — what were its “ terms and conditions ” — it is left incomplete and inoperative. The clear implication is that the testator intended to make the devise of the land to the defendants, not absolute, but in some way dependent upon “ terms and conditions” specified in the agreement of the father of the defendants with the testator to do or not to do something — what, we cannot see further than that it was material to the completeness and efficiency of the devise.
¶4 The plaintiffs did not at all claim under the will — -the defendants did — their title wholly depended upon the devise in it to them, and hence the burden was upon them to show, not simply a part, but every material part, of that devise, including its “terms and conditions,” and to show that these terms and conditions, materially affecting their right, had been observed and performed. They failed to put in evidence a part of the will under which they claim materially affecting their rights, and hence they failed to make good their defence.
¶5 The evidence of the witness received on the trial and objected to by the defendants, in the absence of the agree- *304 merit, was irrelevant and immaterial. But, as we have seen, it did not prejudice them, and, therefore, that it was received is not good ground for a new trial. And for the like reason the instruction of the Court given to the jury, and that requested and not given, were immaterial. The defendants failed to show a complete and effective devise of the land to them.
¶6 Affirmed.