PARKER, Circuit Judge.
This is an appeal by Samuel Morrison Barry in a suit instituted by the American Security and Trust Co., executor and trustee under the will of Nannie Morrison, to obtain a judgment determining the rights of devisees under that will and directing the distribution of the estate in its hands. The will gave to Barry a half interest in the rentals accruing during his life time from certain property left in trust with direction that the income be paid to him and his brother, or his brother’s wife, during their lives with remainder to his brother’s children. It provided for forfeiture of the interest of any person contesting the provisions of the will and that the interest devised to any such person should be disposed' of under the provisions of the will as though his name had not been mentioned therein. Barry, his brother and his brother’s wife had filed a caveat to the will on the grounds-of lack of execution, mental incapacity, fraud, coercion and undue influence. The court held that their interests under the will’ were forfeited by this contest, that the remainder in the property left in trust was-thereby accelerated, and that the rentals collected therefrom by the trustee from the death of testatrix to the date of the decree should be paid to the residuary legatee, one Paul W. Murphy. From this judgment only Barry has appealed; and the only question presented for our decision is the correctness of the holding that Barry’s-interest under the will was forfeited by his contest.
The provisions of the will under which Barry claims are as follows:
“Second: I give, devise and bequeath premises 1827 Riggs Place, Northwest, in the City of Washington, District of Columbia, unto American Security and Trust Company, absolutely, and in fee simple, as trustees, in and upon the following uses and trusts: Funds derived from rent of said premises shall be equally divided between my Nephews, Joshua H. and Samuel M. Barry, both of New York City, but should he die before his brother Joshua H., the entire proceeds as collected reverts to Joshua H. But if said Joshua Barry is not living at my death, his half of proceeds shall be paid to his widow, Rose Barry and upon the death of the aforementioned [471]*471brothers, the entire proceeds as collected be paid to Rose Barry during her natural life, and upon her death, the property is to be sold and the proceeds be equally divided between her two children Mrs. McCave {nee Rosemary Barry) and Joseph Klingle Barry, both of New York City.
“Third: I hereby request that the present agent be allowed to continue collecting the rent from the aforesaid 1827 Riggs Place, and turn over the same to my executors and trustees for distribution between the two Nephews. The agent is Mr. William E. Criser, 3108 Park Place, Washington, D. C.”
Subsequent provisions of the will gave Murphy certain real and personal property and named him as residuary legatee. The anti-contest provision is contained in paragraph eleven and is as follows:
“Eleventh: In the event that any provision of this my last will and testament is contested by any of the parties mentioned herein, the portion or portions of the estate to which such party or parties would be entitled shall be disposed of in the same manner as though their name or names had not been mentioned herein.”
The will was executed in November 1935. 'Testatrix died in June 1937. In October 1937, Barry filed a caveat to the will alleging (1) mental incapacity on the part of the testatrix, (2) failure of testatrix to declare it to be her last will and testament In the presence of the attesting witnesses, (3) failure of the attesting witnesses to sign as such at the request of testatrix and (4) fraud and coercion exercised upon testatrix by the residuary legatee Murphy. At the trial of the issues arising upon the caveat it was amended so as to add undue influence to the charges of fraud and •coercion alleged to have been exercised by Murphy.
The hearing on the caveat was had in November 1938, and verdict was directed for the propounders. So far as the record "before us shows, there was not a scintilla of evidence to justify the allegations of the caveat that the will was not properly executed, that the testatrix did not declare it to be her last will and testament in the presence of attesting witnesses, or that the ■witnesses did not sign at her request. And the same may be said of the allegations of -mental incapacity, fraud and undue influence. Testatrix was shown to be a woman of advanced age, but there was no •evidence of mental weakness or other mental incapacity. On the contrary, all the evidence was to the effect that she was a woman of strong will and determined character. She lived alone in the City of Washington and seldom saw her nephews or other relatives, who lived in New York. She was much attached to Murphy, an unmarried young man, who became acquainted with her in 1931 and who during the last several years of her life showed her all of the care and attention that might have been expected of a dutiful son, aiding her in her business affairs, attending to her marketing for her, seeing that she was cared for in her illness and visiting her often.
While there was evidence that testatrix was devoted to Murphy, was advised by him and made him presents, there is not the slightest evidence that he was guilty of any fraud upon her or in any wise controlled her action in the making of the will. On the contrary, the evidence is that she wrote out in her own handwriting the provisions she wished incorporated, using a former will as a guide, and that she consulted with a representative of the trust company with regard to the matter in Murphy’s absence. It is true that she had Murphy copy her notes in the form of a will after the representative of the trust company had advised that he could not render this service, but she herself called the witnesses to the will, representatives of the trust company, and executed it at a time when Murphy was not present. There was ground for contention that Murphy cultivated the friendship of testatrix with the expectation of profit, but none that he substituted his will for hers in the disposition of her property. It is well settled that influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practiced. MacMillan v. Knost, 75 U.S.App.D.C. 261, 126 F.2d 235, 236.
Under these circumstances, the court below was unquestionably correct in holding that the interest of Barry under the will was forfeited by his filing of the caveat. Under the law applicable in the District of Columbia, the forfeiture provision contained in the will was valid and the filing of the caveat worked a forfeiture of the interest of the devisee filing it, irrespective of the question of good faith or probable cause for the litigation. Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793. But even if good [472]*472faith and prohable cause could avoid the forfeiture, there is no evidence in the record before us upon which the court could base a finding of probable cause. As above indicated, we think that there was no probable cause for a contest based on the ground of undue influence; and certainly there was not a scintilla of justification for basing a contest on lack of proper execution or mental incapacity.
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PARKER, Circuit Judge.
This is an appeal by Samuel Morrison Barry in a suit instituted by the American Security and Trust Co., executor and trustee under the will of Nannie Morrison, to obtain a judgment determining the rights of devisees under that will and directing the distribution of the estate in its hands. The will gave to Barry a half interest in the rentals accruing during his life time from certain property left in trust with direction that the income be paid to him and his brother, or his brother’s wife, during their lives with remainder to his brother’s children. It provided for forfeiture of the interest of any person contesting the provisions of the will and that the interest devised to any such person should be disposed' of under the provisions of the will as though his name had not been mentioned therein. Barry, his brother and his brother’s wife had filed a caveat to the will on the grounds-of lack of execution, mental incapacity, fraud, coercion and undue influence. The court held that their interests under the will’ were forfeited by this contest, that the remainder in the property left in trust was-thereby accelerated, and that the rentals collected therefrom by the trustee from the death of testatrix to the date of the decree should be paid to the residuary legatee, one Paul W. Murphy. From this judgment only Barry has appealed; and the only question presented for our decision is the correctness of the holding that Barry’s-interest under the will was forfeited by his contest.
The provisions of the will under which Barry claims are as follows:
“Second: I give, devise and bequeath premises 1827 Riggs Place, Northwest, in the City of Washington, District of Columbia, unto American Security and Trust Company, absolutely, and in fee simple, as trustees, in and upon the following uses and trusts: Funds derived from rent of said premises shall be equally divided between my Nephews, Joshua H. and Samuel M. Barry, both of New York City, but should he die before his brother Joshua H., the entire proceeds as collected reverts to Joshua H. But if said Joshua Barry is not living at my death, his half of proceeds shall be paid to his widow, Rose Barry and upon the death of the aforementioned [471]*471brothers, the entire proceeds as collected be paid to Rose Barry during her natural life, and upon her death, the property is to be sold and the proceeds be equally divided between her two children Mrs. McCave {nee Rosemary Barry) and Joseph Klingle Barry, both of New York City.
“Third: I hereby request that the present agent be allowed to continue collecting the rent from the aforesaid 1827 Riggs Place, and turn over the same to my executors and trustees for distribution between the two Nephews. The agent is Mr. William E. Criser, 3108 Park Place, Washington, D. C.”
Subsequent provisions of the will gave Murphy certain real and personal property and named him as residuary legatee. The anti-contest provision is contained in paragraph eleven and is as follows:
“Eleventh: In the event that any provision of this my last will and testament is contested by any of the parties mentioned herein, the portion or portions of the estate to which such party or parties would be entitled shall be disposed of in the same manner as though their name or names had not been mentioned herein.”
The will was executed in November 1935. 'Testatrix died in June 1937. In October 1937, Barry filed a caveat to the will alleging (1) mental incapacity on the part of the testatrix, (2) failure of testatrix to declare it to be her last will and testament In the presence of the attesting witnesses, (3) failure of the attesting witnesses to sign as such at the request of testatrix and (4) fraud and coercion exercised upon testatrix by the residuary legatee Murphy. At the trial of the issues arising upon the caveat it was amended so as to add undue influence to the charges of fraud and •coercion alleged to have been exercised by Murphy.
The hearing on the caveat was had in November 1938, and verdict was directed for the propounders. So far as the record "before us shows, there was not a scintilla of evidence to justify the allegations of the caveat that the will was not properly executed, that the testatrix did not declare it to be her last will and testament in the presence of attesting witnesses, or that the ■witnesses did not sign at her request. And the same may be said of the allegations of -mental incapacity, fraud and undue influence. Testatrix was shown to be a woman of advanced age, but there was no •evidence of mental weakness or other mental incapacity. On the contrary, all the evidence was to the effect that she was a woman of strong will and determined character. She lived alone in the City of Washington and seldom saw her nephews or other relatives, who lived in New York. She was much attached to Murphy, an unmarried young man, who became acquainted with her in 1931 and who during the last several years of her life showed her all of the care and attention that might have been expected of a dutiful son, aiding her in her business affairs, attending to her marketing for her, seeing that she was cared for in her illness and visiting her often.
While there was evidence that testatrix was devoted to Murphy, was advised by him and made him presents, there is not the slightest evidence that he was guilty of any fraud upon her or in any wise controlled her action in the making of the will. On the contrary, the evidence is that she wrote out in her own handwriting the provisions she wished incorporated, using a former will as a guide, and that she consulted with a representative of the trust company with regard to the matter in Murphy’s absence. It is true that she had Murphy copy her notes in the form of a will after the representative of the trust company had advised that he could not render this service, but she herself called the witnesses to the will, representatives of the trust company, and executed it at a time when Murphy was not present. There was ground for contention that Murphy cultivated the friendship of testatrix with the expectation of profit, but none that he substituted his will for hers in the disposition of her property. It is well settled that influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practiced. MacMillan v. Knost, 75 U.S.App.D.C. 261, 126 F.2d 235, 236.
Under these circumstances, the court below was unquestionably correct in holding that the interest of Barry under the will was forfeited by his filing of the caveat. Under the law applicable in the District of Columbia, the forfeiture provision contained in the will was valid and the filing of the caveat worked a forfeiture of the interest of the devisee filing it, irrespective of the question of good faith or probable cause for the litigation. Smithsonian Institution v. Meech, 169 U.S. 398, 18 S.Ct. 396, 42 L.Ed. 793. But even if good [472]*472faith and prohable cause could avoid the forfeiture, there is no evidence in the record before us upon which the court could base a finding of probable cause. As above indicated, we think that there was no probable cause for a contest based on the ground of undue influence; and certainly there was not a scintilla of justification for basing a contest on lack of proper execution or mental incapacity. Even if probable cause were held to exist with respect to undue influence, this would not justify a contest based on a number of other grounds for which no cause whatever existed.
The validity of provisions for forfeiture in case of contest has been denied in bequests of personalty in the absence of a gift over. Pray v. Belt, 1 Pet. 670, 7 L.Ed. 309; Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582; Fifield v. Van Wyck’s Ex’r, 94 Va. 557, 27 S.E. 446, 64 Am.St.Rep. 745. But see contra Bradford v. Bradford, 19 Ohio St. 546, 2 Am.Rep. 419; In re Estate of Hite, 155 Cal. 436, 101 P. 443, 21 L.R.A.,N.S. 953, 17 Ann.Cas. 993; 2 Redfield on Wills 679. This exception, even if valid, has no application here, as the devise is of an interest in realty and there is a gift over to the residuary legatee in case of breach of the condition. In some jurisdictions, it is held that a contest in good faith and upon probable cause will not work a forfeiture under such a provision.1 What we regard as the weight of authority, however, is to the contrary,2 A contest on the ground of forgery or subsequent revocation neither of which is here involved, would seem to stand on a different footing from the ordinary contest based on defective execution, mental incapacity or undue influence.3
In the District of Columbia, the law is settled in accordance with the weight of authority, we think, by Smithsonian Institution v. Meech, supra, that a provision avoiding a disposition of property for action of the beneficiary in contesting the will is valid and will be enforced notwithstanding good faith and probable cause in making the contest. It is true that in the opinion in that case there is a quotation from Roper on Legacies in which recognition is given the doctrine that a contest based on probable cause will not work a forfeiture; but it will be noted that, in the quotation, the doctrine is expressly limited to legacies in which there is no gift over. Cooke v. Turner, 14 Sim. 493, was cited with approval, and forfeiture because of contest was enforced, although no clearer case of probable cause for contest could have been imagined than was there presented. Forfeiture of a legacy given to heirs of the wife of the testator was decreed because they had claimed as property belonging to her certain real estate which stood in her name but in which the testator had a resulting trust and which he had disposed of in [473]*473bis will. Not only was the title to the property held by the wife under the presumption that it was a gift from the husband although paid for by him, but this Court decided the question of law presented in favor of the heirs of the wife. Notwithstanding this, the Supreme Court held that in making claim to this property they had forfeited the right to the legacy under the condition contained in the will. In so holding, the Supreme Court stated the philosophy underlying the rule as follows [169 U.S. 398, 18 S.Ct. 402, 42 L.Ed. 793]:
“Experience has shown that often, after the death of a testator, unexpected difficulties arise; technical rules of law are found to have been trespassed upon; contests are commenced wherein not infrequently are brought to light matters of private life that ought never to be made public, and in respect to which the voice of the testator cannot be heard either in explanation or denial; and, as a result, the manifest intention of the testator is thwarted. It is not strange, in view of this, that testators have desired to secure compliance with their dispositions of property, and have sought to incorporate provisions which should operate most powerfully to accomplish that result. And, when a testator declares in his will that his several bequests are made upon the condition that the legatees acquiesce in the provisions of his will, the courts wisely hold that no legatee shall, without compliance with that condition, receive his bounty, or be put in a position to use it in the effort to thwart his expressed purposes.”
We feel ourselves bound by this decision of the Supreme Court; but, even in its absence, we would follow the rule that it lays down as being supported by the weight of authority and as embodying the sounder reasoning. The view that the wishes of the testator should he disregarded with respect to the disposition of his property in the interest of greater freedom of litigation does not impress us as resting on a sound or logical basis. Studies which have been made show that only a very small percentage of will contests made on the grounds of defective execution, mental incapacity or undue influence are successful; and the public interest in freeing such contests from the restraining influence of conditions like that here involved seems of little importance compared with enforcing the will of the testator that those who share in his bounty shall not have been guilty of besmirching his reputation or parading the family skeletons after his death. But, as stated above, even if the rule avoiding forfeiture where contest is based on probable cause were recognized here, it would not avail appellant, since there was no probable cause shown for the contest.
For the reasons stated, the judgment appealed from will be affirmed.
Affirmed.