144 Iowa 451 | Iowa | 1909
Lead Opinion
In February, 1904, Selby B. Moran, a resident of Hardin County, Iowa, died testate, leaving surviving him Iowa L. Moran, his widow, and Selby A. Moran, Lee Moran, Virginia Richards, Frank Moran, George W. Moran, and Eldon Moran, children by a former wife, his only heirs at law. His will, which was duly probated, consists of seven paragraphs, as follows:
Paragraph 1 is formal only, and need not be here set out.
Paragraph 3 is in the following words:
I devise, give, grant and bequeath nnto my said wife, I. L. Moran, in fee simple, my home farm upon which I now reside and described as follows: The south half of the northwest quarter and the southwest quarter of the northeast quarter of section seventeen, township eighty-seven, range nineteen west of the 5° P. M., in Hardin County, State of Iowa, to have and to hold the same as her own absolutely.
Paragraph 4 gives to his wife the use of all the rest of his real estate for one year after the testator’s death.
Paragraph 5 directs his executrix to sell all the real estate not devised to his wife for the best obtainable cash price and to distribute the proceeds, as follows:
She shall pay to my son Selby A. Moran the sum of five Hundred Dollars, to my son Lee Moran the sum of five hundred dollars, to my daughter Virginia Richards the sum of five hundred dollars, to my son Frank Moran the sum of five Hundred dollars, to my son George W. Moran the sum of five hundred dollars, and shall pay to my son Eldon Moran the remainder of the net proceeds of the sale of said described premises.
Paragraph 6 is in the following words:
I further declare and provide that in case any of the legatees named as beneficiaries in this instrument shall contest the same, such beneficiary or legatee, or beneficiaries or legatees, making such contest shall forfeit thereby his right to any portion of my estate and the provision or legacy provided in this will for such beneficiary or legatee or legatees shall by such act become the property of my said wife, I. L. Moran, absolutely in her' own right.
Paragraph 7 appoints Iowa L. Moran the executrix of his will without bond.
While the action above referred to was still pending, Iowa L. Moran, as executrix of her husband’s will, began
The objection that such conditions are against public policy has frequently been made; but we do not find that it has ever been upheld by any court of this country. In Mallet v. Smith, 6 Rich Eq. (S. C.) 12 (60 Am. Dec. 10Y), the only case cited by counsel for the appellant, the writer of the opinion, Chancellor Wardlaw, expressing his individual opinion, favors the view that public policy is opposed to such restriction upon the rights of the beneficiary of a will. But the court declined to follow the learned writer of the opinion to that extent, but held that such condition is valid where there is a gift over upon breach thereof. Eor ourselves we can not believe that public interests are in any manner prejudiced or the fundamental rights of any individual citizen in any manner violated by upholding a gift or bequest made on condition that the donee waive or release his claim to some other property right, or even upon condition that he observe some specified line of personal conduct not in violation of law, or contrary to good morals. The donee is under no compulsion to accept the gift. He is free to elect. The question he has to decide is the ordinary one which arises in nearly every business transaction— whether the thing offered him is worth the price demanded. The owner of property may give or refrain from giving. He may attach to his offer such lawful conditions as his reason, caprice, or malice may dictate, but he
c5. Same: for-“contest” defined. We have left only to inquire whether the suit instituted and prosecuted by the appellants asserting title .in themselves independent of the will to a large part of the estate which the testator had undertaken to dispose of by that instrument was a breach 0f condition against a contest. While “contest,” as used in statutes, may be treated as a “word of art,” it is hardly such in ordinary use and signification. The definition by Webster is “to make a subject of dispute; to call in question; to dispute.” It is frequently used in the sense of, “to litigate,” “oppose,” “to challenge,” “to resist,” and, as applied to legal proceedings, it ordinarily implies a dispute between parties plaintiff and defendant before a court which is to decide the question put in issue. It is the contention of appellant that the words “shall contest the same” as employed by the testator in the will before us ought to be construed as referring to a direct assault upon the entire instrument as a will upon grounds which if established would render
It is argued with much earnestness that in the litigation referred to the validity of the will was not made an issue; the only question there considered being the disputed title to certain real estate. But in a very essential respect the statement is misleading. It is true the validity of the will as a will, generally speaking, was not there called in question. But that the litigation had its genesis and purpose in the proposed defeat of the will as to a large portion of the estate which it purported to devise is perfectly clear. The widow was made a party thereto both in her own right and as executrix of the will. It was alleged that she claimed title under the will, but that said devise was void and of no effect because Selby B. Moran’s title to the property was fraudulent and void as against the heirs of his former wife, who was the true owner of the land at the time of her death. The land thus sought to be recovered constituted one hundred of the one hundred and twenty acres devised to the wife by the third clause of the will, and with this provision defeated, the whole plan and scheme which the testator had framed for the disposition of his estate would be even more • effectually upset and destroyed than would have been the ease had the will been refused admission to probate. Evidently the first thought of the testator was to make suitable provision for his wife. The relations between himself and some of the children had become strained if not hostile, and, while not desiring to repudiate their claims upon his bounty, he proposed as far as possible to secure his widow in the property given her against assault by his heirs. In view
In another case a testator, after giving legacies to his children, devised land of which he was tenant in tail to
Hpon the probate of their father’s will, either of three courses was open to the appellants. They could yield to its terms, and by accepting the legacies abandon all claims of right in hostility to the will, or they could by proper action in court seek to have the will decreed invalid in its entirety upon allegation of proper grounds therefor, or, without asserting the invalidity of the instrument as a will, they could bring action to defeat its provisions by claiming ownership in themselves of the property of the estate independent of the will. They chose the latter course, denying the testator’s title to the land, and impeaching the validity of the devise thereof by the will, and this election we think was a breach of the condition which the testator annexed to his gifts. It fellows that the trial court did not err in holding the legacies to have been forfeited.
The decree appealed from in each of the entitled cases is therefore affirmed.
Dissenting Opinion
(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
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
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