the will in the event of his contesting the same, and thus to an extent preclude him from attempting to show that the testator was lacking in mental capacity or was unduly influenced, or the like. For this reason some courts hold that a condition as to forfeiture is inoperative where probable cause for contest exists.

In England a distinction is made when the condition that a beneficiary shall forfeit all benefits in case he contests the will is annexed to a bequest of personalty. In such a case, probable cause for contest existing, the condition is regarded as in terrorem, and a contest does not result in forfeiture.35 This rule is followed by some courts in the United States.36 A

Some of the American decisions make no distinction and hold that a condition of forfeiture is enforceable in all cases without regard to the cause or ground of contest.37 It is said in one case that to make such a distinction "would be to substitute our own views for a clearly expressed intent of the testator to the contrary.

ford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Thompson v. Gaut, 14 Lea (82 Tenn.) 310.

35 Powell v. Morgan, 2 Vern. 90; Morris v. Burroughs, 1 Atk. 399, 404; Loyd v. Spillet, 3 P. Wms. 344.

36 Hyde v. Baldwin, 17 Pick. (34 Mass.) 303; Jackson v. Westerfield, 61 How. Pr. (N. Y.) 1399; Frederick v. Gray, 10 Serg. & R. (Pa.) 182; In re Friend's Estate, 209 Pa. St. 442, 68 L. R. A. 447, 58 Atl. 853; Fifield v. Van Wyck, 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446.

1138

37 Smithsonian Institution V. Meech, 169 U. S. 398, 42 L. Ed. 793, 18 Sup. Ct. 396; Estate of Miller, 156 Cal. 119, 23 L. R. A. (N. S.) 868, 103 Pac. 842; Moran v. Moran, 144 Iowa 451, 30 L. R. A. 898, 123 N. W. 202; Hoit v. Hoit, 42 N. J. Eq. 388, 59 Am. Rep. 43, 7 Atl. 856; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Thompson v. Gaut, 14 Lea (82 Tenn.) 315.

38 Estate of Miller, 156 Cal. 119, 23 L. R. A. (N. S.) 868, 103 Pac. 842, wherein the court further "It is a mere attempt at

says:

There is other authority which, while holding that such a forfeiture clause may be valid, maintains that the penalty of forfeiture will no. be imposed where it clearly appears that the contest was justified under the circumstances and was not the mere vexatious act of a disappointed heir or next of kin. To apply the strict rule of forfeiture in all cases would, at times, not only work a manifest injustice, but accomplish results which a rational testator could not have contemplated, as, for example, where the contest is on the ground of undue influence in procuring the will, or where the contest is made on a reasonable belief that the will is a forgery. It has been held that a devisee or legatee has the right, upon probable cause, to attempt to show that the will is a forgery without incurring the penalty of forfeiture.11

40

an artificial distinction to avoid the force of a plain and unambiguous condition against contests."

39 Jackson v. Westerfield, 61 How. Pr. (N. Y.) 399; In re Kathan's Will, 141 N. Y. Supp. 705; Friend's Estate, 209 Pa. St. 442, 68 L. R. A. 447, 58 Atl. 853; In re Kirkholder's Estate, 171 App. Div. 153, 157 N. Y. Supp. 37; Rouse v. Branch, 91 S. C. 111, Ann. Cas. 1913E, 1296, 39 L. R. A. (N. S.) 1160, 74 S. E. 133.

40 Friend's Estate, 209 Pa. St. 442, 68 L. R. A. 447, 58 Atl. 853, wherein the court says: "If, as a matter of fact, undue influence is successfully exerted over one about to execute a will, that same influence will have written into it a clause which will make sure its disposition of the alleged testator's property. He who will take

advantage of his power to unduly influence another in the execution of a will will artfully have a care to have inserted in it a clause to shut off all inquiry as to the influence which really made the will; and, if the rule invoked by the appellants is to be applied with no case excepted from it, those who unscrupulously play upon the feelings of the testator may, with impunity, enjoy the fruits of their iniquity, and laugh in scorn at those whom they have wronged."

41 Rouse v. Branch, 91 S. C. 111, Ann. Cas. 1913E, 1296, 39 L. R. A. (N. S.) 1160, 74 S. E. 133. See dicta in Friend's Estate, 209 Pa. St. 442, 68 L. R. A. 447, 58 Atl. 853.

"The right of a contestant to institute judicial proceedings upon probable cause to ascertain

§ 1057. What Amounts to a Contest.

42

A condition in regard to contesting a will has reference to an attempt to thwart the testator's expressed wishes. The filing of a bill for a correct construction of the will and the enforcement of his rights thereunder is not such a contest by a beneficiary. And the mere filing of a paper contest which is abandoned without action, and not employed to thwart the testator's wishes, is not necessarily contesting the will.13 But where one employs the .machinery of the law to set aside the expressed desires of the testator, whether successful or not, it is deemed a contest.4

44

It is not necessary that the beneficiary directly institute

whether the will was ever executed by the apparent testator is founded upon justice and morality. If a devisee should accept the fruits of the crime of forgery under the belief, and upon probable cause, that it was a forgery, he would thereby become morally a particeps criminis, and yet, if he is unwilling to commit this moral crime, be confronted with the alternative of doing so, or of taking the risk of losing all under the will, in case it should be found not to be a forgery. Public policy forbids that he should be tempted in such a manner."-Rouse v. Branch, 91 S. C. 111, Ann. Cas. 1913E, 1296, 39 L. R. A. (N. S.) 1160, 74 S. E. 133.

42 Black v. Herring, 79 Md. 146, 28 Atl. 1063.

Appearing only as a defendant in a suit with others in an action to construe the will, and request

ing a legal construction, although suggesting in her answer the legal questions involved, is not a contest. Scott v. Ives, 22 Mis c. Rep. 749, 51 N. Y. Supp. 49.

43 In re Jackson, 47 N. Y. S. R. 443, 20 N. Y. Supp. 380; In re Bratt, 10 Misc. Rep. (N. Y.) 491, 32 N. Y. Supp. 168.

44 Estate of Hite, 155 Cal. 436, 17 Ann. Cas. 993, 21 L. R. A. (N. S.) 953, 101 Pac. 443.

Where the beneficiary filed writ ten grounds of opposition to the probate of the will and moved to strike out the proponent's answer, and the proceedings were set for hearing and were continued from time to time until finally a compromise was offered which was accepted, there is a contest of the provisions of the will.-Estate of Hite, 155 Cal. 436, 17 Ann. Cas. 993, 21 L. R. A. (N. S.) 953, 101

Pac. 443.

proceedings or be a party of record thereto. It is sufficient to come within the condition regarding a contest if the beneficiary actively advises and aids in a suit instituted by another, even though it be subsequently abandoned." If beneficiaries under a will, although not parties to a suit instituted against the instrument, execute an agreement for the obvious purpose of securing to themselves and the contestants the legacies as bequeathed them, should the will be set aside, they thereby become parties to the proceedings and subject to the condition.46

Contesting a will through a guardian ad litem and testifying, although on matters immaterial to the contest, brings a beneficiary within the condition.47

§ 1058. The Same Subject.

Where the condition is, "in case any of the legatees named as beneficiaries shall contest the same, such legatee making such contest shall forfeit thereby his right to any portion of my estate," the words "shall contest the same" need not be construed as referring to a direct assault upon the entire instrument as a will upon grounds which, if established, would render it void in all its parts. Any attack upon the validity of a material part of the will which, if successful, would destroy the integrity of the testator's plan for distributing the estate, is a contest within the fair meaning of the words.48 A legatee under a will containing a clause forfeiting a legacy in case he "controverts, disputes, or calls in question the validity

45 Donegan v. Wade, 70 Ala. 501. 46 Rank v. Camp, 3 Demarest (N. Y.) 278; Grote's Estate, 2 How. Pr. (N. S.) (N. Y.) 140.

47 Bryant v. Thompson, 59 Hun II Com. on Wills-42

(N. Y.) 545, 14 N. Y. Supp. 28. See same case, 27 Abb. N. C. (N. Y.) 183.

48 Moran v. Moran, 144 Iowa 451, 30 L. R. A. (N. S.) 898, 123 N. W. 202.

of the will," does not forfeit his legacy by presenting for probate an alleged later will which is rejected, provided he acts in good faith and has probable cause to believe that such later will is a genuine instrument entitled to probate. But where in bad faith he presents a spurious instrument with intent thereby to overthrow and avoid a prior genuine will, he controverts and calls in question the validity of the genuine instrument within the intent and meaning of the clause.40

§ 1059. Conditions in Restraint of Marriage.

The English ecclesiastical courts, which followed the civil law, held all conditions in restraint of marriage to be absolutely void, whether precedent or subsequent, or whether or not they were followed by a gift over. Devises of land were within the jurisdiction of the common law courts, bequests of personalty under the ecclesiastical courts, while courts of chancery had concurrent jurisdiction as to both. These last mentioned courts found great difficulty in following the rules of the other courts and at the same time attempting to give effect to the expressed intention of the testator. Distinctions were therefore made resulting in curious refinements distinguishing between real and personal estates, conditions and limitations, conditions precedent and subsequent, and gifts with and without valid limitations over.50

The effect of a condition precedent or subsequent is the same where the condition is a restraint upon marriage, as in other cases. If the condition be precedent, a breach of

49 In re Kirkholder's Estate, 171 App. Div. 153, 157 N. Y. Supp. 37.

50 McIlvaine v. Gethen, 3 Whart. (Pa.) 575; Commonwealth V. Stauffer, 10 Pa. St. 350, 51 Am.

Dec. 489; In re Holbrook's Estate, 213 Pa. St. 93, 110 Am. St. Rep. 537, 5 Ann. Cas. 137, 2 L. R. A. (N. S.) 545, 62 Atl. 368.