Moran v. Moran

Evans, C. J.

(dissenting). — Hpon one branch of this case I am not able to concur in the majority opinion. The question whether a provision in a will forbidding any con *470 test thereof under penalty of forfeiture of all legacies therein should be given unqualified effect, is one upon which there is a diversity of opinion in the courts. The cases on the subject are comparatively few. It is perháps true that the numerical majority of the courts which have passed upon the question have adopted the affirmative of the proposition, but some of these have done so with reluctance. I am convinced that the real merit of the argument is with the other view, and that such provision in a will is contrary to public policy, unless it be limited in its application to those contests wherein an element of bad faith enters. Under the law no will can become effective in any of its provisions until it shall have been admitted to probate by the court. Before admitting it to probate, it is the duty of the court to investigate the facts and circumstances attending its execution and bearing upon its validity, and to find judicially therefrom that such will was executed in due form, voluntarily, and understandingly by the purported .testator. If the court should find otherwise,• it must reject the will and refuse its probate. This duty is often, perhaps usually, performed in a formal and perfunctory manner. But the duty itself is more than formal. It is'substantial and imperative and as. sincere and solemn as any other judicial investigation and determination. Manifestly, in order to attain true judicial results, the" court has need to learn true facts. Thesé must come, if at all, from those who are or were in a position to know them. In obedience to the law a day of hearing is fixed, and notice thereof is published to the world. If the court is to learn the truth from outside sources of information, it is manifestly important that the highway of information to the court be kept open, and that there- shall be no lion in the way. But here is a forfeiture provision in the purported will itself which may be a roaring lion intended to terrorize every beneficiary of the will. Its demand is that no adverse evidence be volun *471 teered. Its tendency is necessarily to suppress material facts, and thus to impede the administration of the law according to its true spirit. A good faith contest of a will is in strict line and in strict consistency with the duty of judicial investigation and determination imposed on the court by the law. It differs from an ex parte investigation in no sense except in degree. In the one case the court is too often compelled to grope in the dark; in the other the lights are made to burn. A contest intensifies an investigation, and adds to it zest and thoroughness; but the duty of the court remains the same. A contest in good faith is necessarily based upon facts material for the consideration of the court in determining the validity of the instrument as a will. It does not change the essential quality of the investigation nor of the judicial determination resulting therefrom. It is not a sound answer to this argument to say: “Thus saith the testator.” Did he say it? That is the very question under investigation by the court in the contest. It is necessarily involved in the question of the genuineness and validity •of the alleged will. If the purported will of a purported testator should, contain a proviso forbidding that it be presented for probate to any court or judgé thereof, and ■that it should be deemed the genuine will of the téstator without other proof or probate proceeding, doubtless no lawyer would say that such proviso could have any'effect. The question would still remain for judicial determination whether the instrument was his will or not. If such purported will should contain a further provision forfeiting legacies therein made in the event- that the first provision should be violated, doubtless again we would find unanimity of opinion as- to the invalidity of such provision. The law guarantees to the living and to the dead that no instrument shall be deemed the will of the purported testator until a judicial investigation and determination of such fact-be first had. This is the law’s protection to *472 the dead and to his estate, as well as to the living. From the very nature of the case no testator can waive it nor forbid it nor make it the basis of penalty or forfeiture. By the same logic he can not direct the form or method of such judicial investigation, nor its extent nor its degree of thoroughness. Why, then, should he be deemed to speak through an unprobated instrument, and deemed thus to foil a thorough investigation by forbidding contest before the court — the most practical means known to judicial experience for the disclosure of the truth?

To give unqualified effect to such provision in a will can serve no very useful purpose to the great body of wills which can always bear investigation. Its real efficiency consists in the protection which it wdll afford to an instrument of doubtful validity against a free and unhampered examination. It is into this class of instruments ■that this provision will find its way. The number of wills which are actually contested constitutes an exceedingly small percentage of the whole number of wills presented for probate, and it is only an occasional will that is defeated for invalidity. I know there is a popular impres-' sion to the contrary, but this is a mistake in fact. For every will which is defeated hundreds are admitted to probate. When it is considered that vast property interests are carried hy these instruments and that they are often executed Under difficult circumstances and in the last days of the last sickness, it is quite to be expected that a small percentage of them should prove to be invalid. And it does sometimes happen in very truth that a will regular in form, bearing the genuine signature of the testator in the presence of witnesses, is nevertheless not his will. On the contrary, it was framed and dictated by another, and the dying man mayhap put to it his listless hand without knowledge to comprehend or will to resist. Into such a will the proviso under consideration will hereafter surely find a place. The dictator of such a will will *473 be more likely to incorporate such a provision in the will than would tbe testator himself. On principle, therefore, and in the interest of good public policy, it seems clear to me that the contest of a will in good faith and for probable cause should not be forbidden nor penalized, nor should it he permitted to work a forfeiture of a legacy. Where a contest is in bad faith, and intentionally vexations without probable cause, a different situation arises. This view is supported by the following authorities: Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399; Rhodes v. Muswell, 29 Beav. 560; Powell v. Morgan, 2 Vern. 90; Morris v. Burrows, 1 Atk. 404; Lloyd v. Spillet, 3 P. Wms. 344. In Chew’s Appeal, 45 Pa. 232 , the following language is used in relation to such conditions: “Undoubtedly I think no provision could be formed to oust the supervisory power of the law over such conditions and limitations to control them within their legitimate sphere which is generally to prevent vexatious litigation.” In Smithsonian Inst. v. Meech, 169 U. S. 413 (18 Sup. Ct. 402, 42 L. Ed. 793 ), Justice Brewer says: “When legacies are given to persons upon conditions not to dispute the validity of or the dispositions in wills or testaments, the conditions are not in general obligatory, but only in terrorem. If, therefore, there exists probabilis causa litigandi, the nonobservanee of the conditions will not be forfeitures.”

II. I dissent from the majority opinion for the further reason that in the case under consideration there was no contest of the will. This was the only condition specified in the will, the breach of which should work the forfeiture. The legatees were children of the testator by his first wife. What they did do was that they asserted title as heirs of their mother to an undivided interest to certain land which they claimed belonged to th^ir mother at the time of her death. The will in question devised such land to the testator’s widow. The will contained no dec *474 laration of fact as to the nature or extent of testator’s title. It is held in the majority opinion that this was in effect a contest of the will because it aimed to disturb the distribution of property therein provided for. To my mind such a construction of the will enlarges its provisions, and imposes conditions as a basis of forfeiture which w'ere omitted therefrom by the testator. ' A condition in a will forbidding a contest thereof, and a condition requiring the relinquishment of other rights arising to the legatee outside of the will, are essentially different from each other. And this distinction is important to be observed in this case. A condition attached to a legacy that the legatee shall receive the same in satisfaction of a claim, or that he shall relinquish certain rights, real or apparent, existing independent of the will, is clearly valid. It has in it no element repugnant to public policy, and the authorities are uniform in the support of such a condition. Such a case was Rogers v. Law, 66 U. S. 253 ( 17 L. Ed. 58 ), which is cited in the majority opinion. The legacies in that case were made upon condition, not that the legatees should not contest the will, but that they should relinquish all claim of right under certain specified deeds which existed independent of the will, and prior to its execution. In the case under consideration, if the testator had incorporated a condition to the legacies that the legatees should relinquish all claim of right to the real estate in question, such condition would have been clearly valid. He did not do so. The only condition imposed was that they should not contest the will. The contest of a will is a proceeding well defined and well understood. There is no room for fair argument as to what is meant by it. In the quieting title suit the plaintiffs tried no issue, nor tendered any which could have been tried or tendered in a contest of the will. As respects the condition imposed, the language of the will is direct and free from ambiguity. Instead of following the elementary rule that a strict con *475 struction will be interposed against a claim of forfeiture, tbe majority opinion adopts a construction which is much broader than the language of the will. In support of this construction Smithsonian v. Meech, 169 U. S. 398 (18 Sup. Ct. 396, 42 L. Ed. 793 ), is relied upon as a controlling precedent. But a careful reading of the opinion in that case will disclose the fact that it does not support the conclusion of the majority at this point. On the contrary, it is quite adverse to it in all its reasoning. I have already quoted from such opinion. The facts in that case were that the testator claimed tp own certain real estate, the legal title to which rested in the name of his deceased wife. The will contained a recital of facts to the effect that the testator did own such property, and stating the circumstances of the purchase, and that the title was taken in the name of the wife in trust for himself, and making reference to certain affidavits and other evidence in support of his assertion of title. He first executed a will making certain legacies therein to his wife’s relatives on “condition that no attempt be made to break the will.” This condition was afterwards changed by substituting therefor the condition “that the legatees acquiesce in this will.” And this latter condition is the one that was construed by the court. The court declared a distinction between the latter condition and the former. It was held, in effect, that this latter condition was not only a condition against the contest of the will, but that it called upon the legatees to “acquiesce” in the recitals of fact contained in the will. By such construction the case was put into that class of cases wherein the legatee is required to relinquish rights arising independent of the will, such as Rogers v. Law, already referred to. I urge, therefore, that the majority opinion has no support in the cited case, and that it presents a marked departure from safe rules of construction. I think, therefore, that upon this branch of the case there ought to be a modification of the decree entered below.