This is an appeal from an order distributing to one Kate J. M'isner a portion of a legacy left her by the-decedent. The sole question is as to whether she had forfeited the legacy under a provision of the decedent’s will reading as follows :
“Fourthly, it is my positive instruction that should any one or more of the beneficiaries named in this Will object to thе distribution as made, or attempt to defeat the provisions of this Will that said person or persons shall receive the sum of Five Dollars ($5.00) each and .no more. And any and all other provisions made herein for such objector other than the sum of Five Dollars ($5.00) as stated, shall be annulled and revoked and such person or persons shall take nоthing from my estate other than the sum of Five Dollars ($5.00).”
There is no dispute as to the facts, which are:
The decedent Andrew Bergland died March 3, 1916, leaving as his heirs two sons, Charles and Louis, and a daughter, the last, the legatee mentioned whose legacy is in question. Immediately upon his death a formal instrument, attested by two witnesses, very evidently drawn by a lawyer, and making • a complete disposition of the decedent’s estate, was offered for probate as his will by the parties named as executors therein. Under it the sons and the daughter are all substantial beneficiaries. It likewise contains the forfeiture provisions quoted, but it does not provide for the legacy in question here. It is dated June 7, 1910, and was reaffirmed by formal codicils—otherwise immateriаl here—on March 10,1914, and December 26, 1914.
Two days after the offer of this formal will for probate, the daughter offered a? being a holographic will of the decedent a writing reading as follows:
*631 “August 29, 1915.
“i give al Money in Banks to my Dater Kate Misner when i Die.
“A. Bergland.”
The gift made by this instrument is the legacy involved here. It is to be noted that the date of this writing is subsequent to the dates of thе formal will and its codicils, and also that it makes no reference whatever to them.
Eight days after the holographic writing was presented for probate the daughter offered for probate still another instrument, dated this time December 25, 1915, which purported to dispose of practically all the decedent’s property in a manner substantially different from that of the will of 1910 and more advantageous to the daughter and to appoint the daughter executrix.
No objection was made by anyone, so far as the record discloses, to the probate of the will of 1910 with its codicils, but the two sons filed formal objections to the probating of the two instruments offered by the daughter, alleging thаt both were forgeries and that the instrument of December 25, 1915, was the result of a conspiracy to which the daughter was a party. The daughter pressed her petition for the probate of the instrument of December 25, 1915, until it came on for trial, when she dismissed it. Later, after hearing, the will of 1910 with its codicils and the holographic writing of August 29, 1915, were both admitted to рrobate as constituting together the last will of the decedent.
Subsequently, the daughter petitioned for the distribution to her of the money of her father in bank at the time of his death, pursuant to the provisions of the holographic will of 1915, and this petition was opposed by the sons on the ground that under the forfeiture clause of the will of 1910 she had lost all right to this legacy by her action in seeking the probate of the spurious will of December 25, 1915. The lower court granted the petition of the daughter and from its order this appeal is taken by one of the sons.
The contention of the appellant must be overruled for two reasons:
First, the forfeiture clause contained in the will of 1910 has no application to the will of 1915 or to the legacy given by it. The will of 1915 contains no reference to that of 1910, is not a codicil to it, and so far as anything appears is wholly inde *632 pendent of it, its provisions prevailing over any inconsistent provisions of the earlier will merely because, in the particular covered by it, it is a later expression of thе decedent’s testamentary wishes. It is true there is a general rule of testamentary construction formulated by our Civil Code (section 1320) as follows: “Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” But this, like any other rule of construction, is but a guide for the purpose of аscertaining the intention of the testator. It cannot be used to inject into the later instrument terms and provisions not found in it, unless by express reference'in the later instrument or by necessary implication, it appear that such was the testator’s intention. It is always his intention as fairly ascertained and expressed that must govern, and the code makes the rule quoted, together with other rules of construction, subordinate to this. (Civ. Code, sec. 1319.) In the case of a codicil which by its terms picks up the will previously executed, and, in effect, reaffirms it, it is apparent that the decedent’s testamentary intent at the time of the execution of the codicil includes as one both the codicil and the will, with the result that, unless there is something to indicate a contrary intention, any gift made by the codicil is subject to conditions imposed by the will on the testator’s gifts generally. Of this character was the codicil in the Estate of Hite,155 Cal. 436 , [17 Ann. Cas. 993, 21 L. R A. (N. S.) 953,101 Pac. 443 ], wherein a forfeiture clause contained in a will was held to operate because of a contest made to a codicil.[1] But hеre we do not have a single testamentary act covering both will and codicil, but two distinct testamentary acts occurring at different times, the later making no reference to the earlier and consisting in terms' of an unqualified and unconditional bequest. There is no language, no expression of any nature, that would indicate that the testator intendeil that the terms qf this bequest should be modified and the gift be subject to conditions elsewhere prescribed. The two wills should be read together in the sense that each should be read in the light of the other, and their terms harmonized so far as possible, but this is a very different thing from changing the express terms of the later will by importing conditions into it without express warrant сontained in it, itself. We do not mean to say that a case is not possible where this may be properly done by impli *633 cation only. But to justify this the circumstances must be such as fairly to show affirmatively that the testamentary intent of the decedent at the time of his last expression included not merely the matters which he then set down, but also those which he had set down on a previous occasion. (Deppen’s Trustee v. Deppen,132 Ky. 755 , [117 S. W. 352 ].)
In the present case there is nothing to give rise to any implication that the testator when he wrote and signed the holographic will of 1915 intended to do anything different from what his language literally expresses, namely, to malee an unqualified and unconditional gift to his daughter. This becomes doubly clear when we consider the character of the condition which it is sought to import and the effect such importation would have.
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But it is not alleged in the present case that the daughter acted in bad faith in presenting the purported will of December 25, 1915, and seeking its probate, and no evidence on the point was introducеd. It was alleged in the objection to the probate of the instrument that it was a forgery made pursuant to a conspiracy to which the daughter was a party, but this allegation is not repeated in the objections to her petition for distribution and apparently the omission is not an oversight. The expressed position of appellant’s counsel is that the good faith of the daughter is immaterial, that the mere fact that she unsuccessfully endeavored to probate an instrument making a different disposition of the estate from that directed by the will of 1910 is sufficient to work a forfeiture.
It is to be noted that there is no proof in this proceeding that the instrument of Deóember 25, 1915, was, in fact, spurious. All that appears is that the petition for its probate was withdrawn, and also the fact that a certain person was convicted of the crime of forging it. But neither the dismissal nor the criminal conviction is competent evidence in the present proceeding that it was not genuine. We, however, do not desire to rest our conclusion upon this ground, and will assume that it was spurious.
Respondent contends .that proceedings taken by the daughter' to probate the spurious will do not amount to a contest or to an attempt to defeat the testator’s real will, that in order to
*635
amount to this the proceedings must have been carried to the point of a hearing and trial, which was nоt done.
As we have already said, the forfeiture clause is to be strictly construed, that is, while it is valid and is to be enforced according to the ascertained intent of the testator, yet in ascertaining his intent no wider scope is to be given to his language than is plainly required. The conditions upon which the forfeiture is to work under the will are two, first, in case any beneficiary “object to the distribution (of the estate) as made (by the will),” or, second, “attempt to defeat the provisions of this will.” The attempt to probate a later will cannot be said to be an objection to the distribution made by the first will. Is it within the second condition, “an attempt to defeat the provisions of this will!” It would certainly have the effect, if successful, of defeating those provisions. This, however, is not a complete answer. While the effect would be to nullify and thereby in one sense defeat the provisions of the first will, that result is but incidental and is not the primary object of the attempt to probate the purported later will, provided such attempt be made in good faith. The primary object of such an attempt is to establish what is believed to be the final expression of the decedent’s testamentary wishes. In the words “attempt to defeat” lies the idea of action taken for the purpose of defeating the provisions of the will. A direct contest of the validity of the will would of course be such action regardless of thе good or bad faith of the beneficiary, and such was the ruling in
Estate of Miller,
. [5] It follows that an attempt in good faith to probate a later purported will, spurious in fact, but believed to be genuine by the party seeking its probate, doеs not fall within the forfeiture clause under consideration here.
As strengthening this conclusion, it may be worthy of note that to hold that the testator intended to forbid under penalty any attempt to probate what was genuinely believed to be a later will, would mean that he intended decidedly to limit his own freedom of subsequent testamentary action. Such penalty would seriously discourage any attempt to probate even a genuine later will, and would distinctly lessen the chance of any later testamentary expression by the testator being made effective. It is not to be presumed that he contemplated or intended any such consequence.
Finally, we would say that there are grave reasons of public policy why a provision for forfeiture in case of an unsuccessful but tona fide attempt to probate a purported later will should not be enforced. It is the policy of the law to encourage the presentation for probate of wills of decedents in order to make the more cеrtain that those really entitled to their bounty shall enjoy it. To place upon one under the moral, if not the legal, obligation of probating the decedent’s will the burden of gambling on his ability to do so successfully, no matter how sincere he may be, would be directly opposed to such policy. These reasons are very different from those аpplicable to direct attacks upon a will, and the question is not precluded by Estate of Hite, supra. It is unnecessary to put this decision upon that ground, and we do not do so. We mention the point, however, to avoid any inference that our discussion of the case solely as one of the construction of the will means that this question of public policy is not present in it. It is present, but it is not necessary to decide it.
Order affirmed.
Shaw, J., and Lawlor, J., concurred.