137 Iowa 585 | Iowa | 1908
Under these circumstances, the children of the testator conceived the idea that they should prefer to take fee-simple title to their father’s property by descent rather than the life interest given to them, respectively, with remainders over to vest in their issue after the lapse of twenty years from the time they should die. And accordingly they agreed, as defendant alleged, to join with him in contesting the probate of their father’s will on the ground that he was not of sufficient testamentary capacity, and each of the four others agreed to pay him $2,000 in the event that the contest of the will should be successful, and each should acquire his share in the father’s estate by descent. It is evident that this arrangement was intended to cut off any vested interest in the issue of these five children, and to prevent the defendant
It appears that, in pursuance of this mutual agreement among the heirs of the father of plaintiff and defendant, the •probate of their father’s will was successfully contested, and the court refused to admit it to probate on the ground of want of mental capacity of the testator. In the proceeding for the probate of the will in which the contest was made, as already indicated, there was no' appearance of parties asking to have the will admitted to probate, save by a guardian of the heirs of one son, then deceased, who admitted in behalf of said minors the execution of the will, but denied the allegations of the contestants. The order denying the probate of the will recites that all' of the parties in interest named in said will and all heirs at law of the testator having had due and timely notice of the proceedings and being present in court in person or by counsel, and the court, having heard the evidence, finds that said instrument is not the last will and testament of the testator, and sets it aside and holds it for naught. The contention of plaintiff in the lower court was that the contract between the heirs of her father, under which, assuming it to have been made, which she denied, she undertook to pay $2,000 to the defendant in the event that the will should be set aside, was void as against public policy. This contention was sustained by the trial court, and we believe that its conclusion was undoubtedly correct. The plain and avowed purpose of the agreement was to defeat the interest of the issue of these parties who were by express provisions of the will made beneficiaries thereunder. By the adjudication that the will was not valid for want of testamentary capacity the issue of these parties, then born or to be born, during their lives or within twenty years thereafter,
An agreement among all the beneficiaries of a will for different distribution of the testator's property than that provided for in the will may be sustained if the interests devised. under the will are fully vested. In re Garcelon's Estate, 104 Cal. 570 (38 Pac. 414, 32 L. R. A. 595, 43 Am. St. Rep. 134). But an agreement to resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is not a party to such agreement is against public policy. Gray v. McReynolds, 65 Iowa, 461. In this case it was said that such i contract was against public policy as tending to thwart justice, and that no recovery could be had under such a contract as between the parties thereto. For similar reasons, it has been held that an agreement among children to thwart a disposition which the parent may afterwards make of his property is invalid. Mercier v. Marcier, 50 Ga. 546 (15 Am. Rep. 694).
The judgment is affirmed.