the costs, disbursements and expenses of a contest against any beneficiary who shall contest the validity of the will, is likewise valid.23 Such provisions are conditions subsequent.24 Accepting the benefit conferred by the will is considered an election whereby the donee is estopped from contesting the testament.25

Such a forfeiture clause is not null or void as contrary to public policy, but is a reasonable condition and will be upheld by the courts.26 The design of such a clause is clearly to prevent the inauguration or prosecution of a

contest to defeat the testamentary dispositions of the testator. He may make such disposition of his property as he sees fit, and may annex conditions precedent or subsequent to any gift so long as they are not illegal or against public policy.27 It is often said that one can not claim both under a will and against it.

While a testator may provide that his beneficiaries shall take only on condition that they shall not dispute or contest the will in whole or in part, the rule is subject to the modification that the condition as expressed in the will must not violate any law governing conditions. So a condition not to contest a testamentary disposition prohibited by statute, is void.28

§ 1055. The Same Subject: Where Annexed to Gifts of Personalty: Doctrine of In Terrorem.

A condition annexed to a testamentary gift may be in terrorem, that is, in the nature of a threat, this especially where there is no gift over upon breach of the condition. Conditions of forfeiture in the event of beneficiaries contesting the will are sometimes held to be of such a character and ineffectual. There is, however, a great diversity of opinion and reasoning on this subject. Thus, if a tes

view that public policy is opposed to such restriction upon the rights of the beneficiary of a will. The court, however, refused to follow the opinion to that extent, but held such a condition to be valid where there is a gift over.

27 Donegan v. Wade, 70 Ala. 501. 28 In re Kathan's Will, 141 N. Y. Supp. 705.

"If, for example, our statutes of mortmain prohibit a testamentary

gift to a particular corporation, a condition that another legatee shall not contest such gift to the corporation is clearly void as to him. . . The testator in that instance has tried to do what the law expressly forbids, and the condition he prescribes is in furtherance of testator's own unlawful intention. The common law can not recognize or enforce such an unlawful condition."-In re Kathan's Will, 141 N. Y. Supp. 705.

tator imposes the penalty of forfeiture in the event that his will is contested, it is said in some cases that such a condition is repugnant to the policy of the law, since if one has just cause for grievance or complaint, he has the right to resort to the courts for satisfaction and that such rights should not be abridged. On the other hand, a testator has the right to dispose of his property as he sees fit. He may impose any conditions not contrary to law or public policy. There is nothing inherently illegal or immoral for a testator to desire his will to stand, and it may be said to be natural that a testator would not wish to confer a benefit on one who would thereafter seek to have his will set aside.

A distinction is drawn between devises of realty and bequests of personalty in those cases where the condition is not followed by a gift over and forfeiture would cause the property to revert to the estate. In England a condition not to contest a will, annexed to a devise of real estate, whether or not there is a gift over, is upheld and enforced by the courts.29 Where, however, the condition is annexed to a gift of personalty, it is invalid unless there is a specific gift over, there being no proper cause for the contest.30

29 Violett v. Brookman, 26 Law J. Ch. 308; Cooke v. Turner, 15 Mees. & W. 727; Anonymous, 2 Mod. 7.

30 Powell v. Morgan, 2 Vern. 90; Loyd v. Spillet, 3 P. Wms. 344; Morris v. Burroughs, 1 Atk. 399, 404; Rhodes v. Muswell Hill Land Co., 29 Beav. 560; Evanturel v. Evanturel, 31 L. T. N. S. 105; s. c., L. R. 6 P. C. 1; Adams v. Adams, L. R. 45 Ch. Div. 426; Cleaver v. Spurling, 2 P. Wms. 526, 528;

Cooke v. Turner, 15 Mees. & W.
727; Stevenson v. Abington, 11
Week. R. 935. See, also, Cage v.
Russell, 2 Vent. 352.

Contra: Rogers v. Law, 1 Black (U. S.) 253, 17 L. Ed. 58.

As to conditions in restraint of marriage annexed to gifts of personalty, if no gift over, see § 1062. As to condition that beneficiary marry only with consent, if no gift over, see § 1069.

As to conditions predicated on

The foregoing rule is followed by some courts in the United States, it being held that a condition relating to the contest of a will, when annexed to a bequest of personal property, is to be considered as in terrorem merely and inoperative and void where there is no gift over on the breach of the condition. Admittedly this rule is not based upon any satisfactory reasoning, but was firmly fixed in the law of England at an early date. But the general rule is that if there is a gift over following the condition as to forfeiture in the event that the will is contested, such condition is valid.32

divorce or separation, see §§ 1067, 1068.

In Mickey's Appeal, 46 Pa. St. 337, a direction that upon breach of condition the legacy should fall into the corpus of the estate and be distributed as provided in the will, was held a good limitation

over.

31 Powell v. Morgan, 2 Vern. 90; Morris v. Burroughs, 1 Atk. 399, 404; Smithsonian Institute V. Meech, 169 U. S. 398, 42 L. Ed. 793, 18 Sup. Ct. 396; Mallet v. Smith, 6 Rich. Eq. (S. C.) 12, 60 Am. Dec. 107; Rouse v. Branch, 91 S. C. 111, Ann. Cas. 1913E, 1296, 39 L. R. A. (N. S.) 1160, 74 S. E. 133; Fifield v. Van Wyck, 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446. See cases in following note.

Vice-Chancellor Cranworth, in Ex parte Dickson, 1 Sim. N. S. 37, 61 Eng. Reprint 15, in speaking of conditions subsequent touching the contest of wills, says: "Judges in deciding them have never felt very sure of the ground on which they

were treading. It is, however, certain that the decisions have proceeded on maxims of the civil and not the common law. . . . Inasmuch, therefore, as legacies may be sued for and recovered in the ecclesiastical courts, where the rule of the civil law would prevail, this court has felt itself bound to conform to that law in order that there might not be a conflict of decisions in the two courts."

"The reason seems to be this: A court of equity does not consider that the testator meant such a clause to determine his bounty, if the legatee resorted to such a tribunal to ascertain doubtful rights under the will, or how far his other interests might be af fected by it; but merely to guard against vexatious litigation."Smithsonian Institute v. Meech, 169 U. S. 398, 42 L. Ed. 793, 18 Sup. Ct. 396.

-

32 Smithsonian Institute V. Meech, 169 U. S. 398, 42 L. Ed. 793, 18 Sup. Ct. 396; Donegan v.

With regard to devises of land, no gift over is required to make the condition valid.33 As to personalty, some courts refuse to recognize the rule that a provision against contesting a will is ineffectual to work a forfeiture unless there is a gift over, on the ground that there is no sound reason for maintaining any distinction between devises of realty and bequests of personalty as to a condition of this character. These authorities hold that the rule just mentioned has been adopted merely in deference to the weight of the earlier adjudications.34

§ 1056. The Same Subject: Where Probable Cause for Contest Exists.

It may seem unreasonable for a testator to impose a condition that a beneficiary must forfeit all interest under

Wade, 70 Ala. 501; Hoit v. Hoit, 42 N. J. Eq. 388, 59 Am. Rep. 43, 7 Atl. 856; Jackson v. Westerfield, 61 How. Pr. (N. Y.) 399.

"But when the acquiescence of the legatee appears to be a material ingredient in the gift, which is made to determine upon his controverting the will or any of its provisions, and in either of these events the legacy is given over to another person, the restriction no longer continues a condition in terrorem, but assumes the character of a conditional limitation. The bequest is only quousque, the legatee shall refrain from disturbing the will; and if he controverts it, his interest will cease and pass to the other legatee."-1 Roper on Legacies, (2d Am. ed.) 795.

A condition that "if any of my children shall sue or implead any of my executors, respecting the

construction of my will, or dividing any part of the residuary estate, such child or children shall immediately forfeit all right or title to the residue," with a gift over of the forfeited share, would not divest the children of the power to convene the executors for fraudulent and collusive conduct.-Lee v. Colston, 5 T. B. Mon. (21 Ky.) 238, 246.

33 Donegan v. Wade, 70 Ala. 501; 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; Mallet v. Smith, 6 Rich. Eq. (S. C.) 12, 60 Am. Dec. 107; Thompson v. Gaut, 14 Lea (82 Tenn.) 310.

Contra: Chew's Appeal, 45 Pa. St. 228, 232.

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