Tate v. Camp.

aside was justified under the circumstances, and was not a mere vexatious act of a disappointed child or next of kin. A different rule-an unbending one-that in no case shall an unsuccessful contestant of a will escape the penalty of forfeiture of the interest given him, would sometimes not only work manifest injustice, but accomplish results that no rational testator would ever contemplate. This is manifest on a moment's reflection, and is illustrated by the class of cases to which the one now before us belongs, in which there is an allegation of undue influence which procured the execution of the will. 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.

"If the condition of forfeiture is to be enforced in every case, those who improperly influence the testator may boast to a child against whom he discriminated of the power they exerted over him, and of what they were able to accomplish for themselves, taunting and goading on such child to a contest; and yet, in the end, those who so invited it, and whose conduct made it justifiable, succeeded in sustaining the will by retracting or denying what they said, the contestant will not only be deprived of his gift or

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devise, but those who drew him into the contest may acquire his portion as part of their own plunder."

In South Norwalk Trust Co. v. St. John et al., supra, the court said: "In England, the action to secure a legacy could be had in the ecclesiastical courts, where the rule of the civil law prevailed, in which a fiction had been adopted that, unless there was a gift over of such a legacy, no forfeiture would be decreed. The English court of equity accepted this rule, and enforced it as to legacies of personal property, but not as to devises of land. It was early pointed out by American text-writers and jurists that there was no substantial ground for any distinction in this respect between real and personal estate, and that the exception was purely an artificial one, and unsupported by any adequate reason. Some few of the American courts have adopted the English view, although in some instances recognizing that the exception is not based on any satisfac⚫tory reason. Fifield v. Van Wyck, 94 Va., 557, 563, 27 S. E., 446, 64 Am. St. Rep., 745; In re Friend, 209 Pa. St., 442, 446, 58 Atl., 853; Matter of Arrowsmith, 162 App. Div., 623, 628, 147 N. Y. S., 1016. The great majority of the American courts have repudiated this exception. Bradford v. Bradford, 19 Ohio St., 546, 547, 2 Am. Rep., 419; Moran v. Moran, 144 Ia., 451, 462, 123 N. W., 202; Thompson v. Gaut, 14 Lea (Tenn.), 310, 315; In re Hite, 155 Cal., 436, 445, 17 Ann. Cas., 993, 101 Pac., 443, 21 L. R. A. (N. S.), 953; Donegan v. Wade, 70 Ala., 501; Hoit v. Hoit, 42 N. J. Eq., 388, 7 Atl., 856, 59 Am. Rep.,43; Massie v. Massie, 54 Tex. Civ. App., 617, 118 S. W., 219; Smithsonian Inst. v. Meech, 169 U. S., 398, 413, 18 S. Ct., 396, 42 U. S. (L. Ed.), 793. Most of these authorities support a condition of forfeiture without recognizing any exception.

Tate v. Camp.

Their underlying principle is, that since the testator may attach any condition to his gift which is not violative of law or public policy, the legatee must either take the gift with its conditions or reject it. The disposition of these authorities has been to sustain forfeiture clauses as a method of preventing will contests, which so often breed family antagonisms and expose family secrets better left untold, and result in a waste of estates through expensive and long drawn-out litigation.

"The children suggest the possible approval of this exception, based on the failure to provide for a gift over, but the trustee omits reference to it. The trustee relies upon the appeal being one to secure the construction of the will, rather than one to contest its validity. And both trustee and children unite in urging upon us, as an exception to the rule of forfeiture, the exception that if reasonable cause exist for the contest, a forfeiture will not be decreed. And they further urge that a forfeiture has been waived by them through their acquiescence in the execution of the will.

"One of the claimed exceptions to the general rule of forfeiture is not an exception. If the action of a legatee is merely one to determine the true construction of the will, or of any of its parts, the action could not be held to breach the ordinary forfeiture clause, for the object of the action is not to make void the will, or any of its parts, but to ascertain its true legal meaning. Black v. Herring, 79 Md., 146, 152, 28 Atl., 1063; 1 Schouler on Wills (5th Ed.), section 605. The appeal taken from the decree of the court of probate did not, as we have before pointed out, raise the question of the construction of this will.

"The exception that a contest for which there is a rea

Tate v. Camp.

sonable ground will not work a forfeiture, stands upon better ground. It is quite likely true that the authorities of greater number refuse to accept this exception, but we think it has behind it the better reason. It rests upon a sound public policy. The law prescribes who may make a will and how it shall be made; and it must be executed in a named mode, by a person having testamentary capacity and acting freely, and not under undue influence. The law is vitally interested in having property transmitted by will under these conditions, and none others. Courts cannot know whether a will, good on its face, was made in conformity to statutory requirements, whether the testator was of sound mind, and whether the will was the product of undue influence, unless these matters are presented in court; and those only who have an interest in the will, will have the disposition to lay the facts before the court. If they are forced to remain silent, upon penalty of forfeiture of a legacy or devise given them by the will, the court will be prevented by the command of the testator from ascertaining the truth; and the devolution of property will be had in a manner against both statutory and common law. Courts exist to ascertain the truth and to apply the law to it in any given situation; and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law, is a mistaken public policy. If, on contest, the will would have been held invalid, the literal interpretation of the forfeiture provision has suppressed the truth and impeded the true course of justice. If the will should be held valid, no harm has been done through the contest, except the delay and the attendant expense.

"Where the contest has not been made in good faith, and upon probable cause and reasonable justification, the for

Tate v. Camp.

feiture should be given full operative effect. Where the contrary appears, the legatee ought not to forfeit his legacy. He has been engaged in helping the court to ascertain whether the instrument purporting to be the will of the testator is such. The contest will not defeat the valid will, but it may, as it ought, the invalid will. The effect of broadly interpreting a forfeiture clause as barring all contests on penalty of forfeiture, whether made on probable cause or not, will furnish those who would profit by a will procured by undue influence, or made by one lacking testamentary capacity, with a helpful cover for their wrongful designs.

"The practical difficulties following this exception are more apparent than real. Contests will be made only in causes where they are justified. Doubtful cases will not invite a forfeiture. There will be no more burden put upon the court in finding the fact of probable cause than in finding similar facts in other classes of cases."

4. Does the record disclose that the defendant G. M. Camp had probable cause for entering a contest?

We think so. He was the only child. He had devoted his life to his father's business interest, working for a meager salary. He and his father were on the best of terms. Only two years previous, his father had executed another will leaving him practically all of his estate. When the will in question was written, the testator was eighty-one years of age and in poor health. He was living with Mrs. Fretz and her son. Upon the institution of the contest proceedings, those charged with the exercise of undue influence relinquished $138,000 of the $221,000 given them in the will. These facts abundantly show that G. M. Camp had probable cause for instituting the contest.