The opinion
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Concurring opinion by
Mr. Justice Allen M. Stearne:
I am in complete accord with the majority opinion.
Proponents of wills may not profit by their own fraud or by the fraud of others. If the questioned testamentary document
toas
procured because of testamentary incapacity, or by undue influence, such a will is void and a nullity. There is no difference in the status of such an instrument and one which has been forged or procured through duress. In the eyes of the law no will exists. The decedent dies intestate.
Proponents’ argument is irrelevant and unconvincing that the guardian
ad litem
of the mentally incompetent (sole next of kin) should be denied judicial permission to test the validity of the questioned will on the ground that the ward is amply provided for in that document; also that if the will is set aside and the ward inherits the estate absolutely and in fee simple, nevertheless, the ward will be unable to use any more of the funds than he has already had the use of under the questioned will. It is argued that the expense of a will contest might deplete the estate to the ward’s injury. It is also suggested that the contest is actually between the proponents and possible next of kin of the incompetent, hence, if the ward is protected for the period of his life, the court should withhold permission to institute a will contest.
No court overlooks or condones fraud. Expediency is no inducement for such action. If this will
toas
fraudulently obtained and therefore void, the ward is the absolute owner of the whole estate.
A court charged with the care and supervision of the estate of an incompetent•, or any one under legal disability, will not permit the giving away or relinquishment of any part of the ward’s estate.
On the contrary, the law strikes down fraud wherever it is met and in whatever guise it appears, irrespective of who may lose or profit thereby.
*64
It is futile to argue that the expense connected with a will contest may jeopardize the care and maintenance of the incompetent. Under the terms of the questioned will the incompetent is entitled to have expended in his behalf all of the income and to consume any part or all of the principal at the discretion of Steffey, the executor and trustee, who takes one half of the estate in remainder. Should the will be sustained, the costs and expenses of the litigation will be paid out of the corpus of the estate — said to net approximately $140,000 — -for distribution. Such costs and expenses, however, must be approved by the court and must not be excessive. If, however, the will is set aside, the incompetent inherits the entire estate under the intestate law. The costs and expenses of the litigation will then probably be charged against the losing proponents of the will. In these circumstances, in the absence of an agreement between the litigants, an administrator
pendente lite
may be appointed, who, with leave of court, may advance, pending the litigation, the necessary funds for the incompetent’s maintenance and care.
If a well defined issue between the contestant and proponents is shown to exist concerning the validity of the questioned will, judicial permission must be granted to the guardian
dd Utem
of the incompetent contestant to institute a will contest and to require an issue
devisavit vel non
to be awarded and to prosecute the contest to its final conclusion.
For these reasons I concur in the opinion.