NEWMAN, District Judge.
This case is now before the court on exceptions to the report of the standing master, which have been argued and the matter submitted. Since hearing the argument I have gone over this case with much care, in view of the important and difficult questions involved.
There are exceptions by both sides, both before the master, to the draft of his report, and to the report as filed.
Complainant’s exceptions are:
First, that the master erred in finding that, as a matter of fact, the widow, Hattie Tillman, did not fail and refuse to turn over to the executors the proceeds of the insurance policy, to become a part of the testator’s estate, as required by the will. This exception is elaborated, but it goes to the question stated.
The second exception is that the master erred in finding and conclusion that the filing of the caveat to the will by Mrs. Tillman, and the failure to pay over the proceeds of the insurance policy, “were no such violations of the conditions of items 13 and 14 of the will as would lead to forfeiture of all interest, and thereby vesting absolutely in complainant a one-sixth interest in the first half of the estate, and in the house and lot and insurance fund.”
In this connection it is claimed in the exceptions that the master erred in construing the language of the will to imply “willful failure and refusal” to turn over the proceeds of the insurance policy; the claim being in the exceptions that nothing in item 13 justifies the conclusion that the wife must be guilty of willful failure to make payment of the proceeds of the insurance policy to the executors, but that her omission to make such payment, without demand, deprived her of her legacy under the will other than the $500.
It is further claimed in the exceptions that the master erred in concluding and holding that the phrase “taking legal steps” in the will means that a suit at law, involving a trial and adjudication against the caveator on the issues raised, was necessary.
[428]*428The foregoing, as' stated, is considerably elaborated in the exceptions ; but this states the points involved in the exceptions.
The first exception of the defendants is that the master erred in ■ holding that “the first, second, and third grounds of the demurrer, while stated differently, are practically a general demurrer to the bill, in that such a case has not been stated as entitles complainant to relief in a court of equity,” and “in the opinion of the master these are not well taken and the same are overruled.”
The second exception of the defendant is that the master erred in not finding that the complainant, Mrs. Drennen, was connected with the filing of the caveat “to this extent and in this way: That Mrs. Drennen was willing that the caveat be filed and assented to its being filed, provided R. E. Clements thought that it was for the best interest of Mrs. Tillman for the caveat to be filed, and upon that concerted action on the part of complainant and R. E. Clements the caveat was filed.” Certain evidence is set out which, it is claimed, justifies this exception.
The third exception is that the master erred in finding that this bequest to Mrs. Tillman was an executory devise, and the trust was therefore valid and subsisting and the legal title to the part set aside for the trustees vested in trust eo instanti on the death of the testator, contending that the master should have found that the trust sought to have been created by the testator was illegal and'void.
The fourth and fifth exceptions are that the master erred in recommending that a trustee be appointed to whom the executors should be required fi> pay the $32,317.60, to be held for the benefit of the complainant pending the matter of the contingency provided for in the will.
The first matter that may be noted in passing on these exceptions is the objection to the master’s finding on the pleading. No great stress was laid on this in the argument, and properly so, because I do not think the exceptions with reference to the pleading are meritorious.
The next exception in order, probably, is the exception of the defendants in that thej master erred in not finding that Mrs. Drennen, the complainant, co-operated with Mrs. Tillman, or rather with her brother, R. E. Clements, in the filing of the caveat, and was such a party to it and co-operated in such a way that she is precluded now from raising the question she does by her pleading with reference thereto.
This has been a matter of some difficulty with me, and I have gone over the evidence with considerable care. But after full consideration of it, I am satisfied that the evidence justifies the master’s conclusion on this subject. The familiar rule, so often controlling in questions of this sort, that where the master has the witnesses all before him, sees them, and hears their examination and cross-examination, and hears the case in the locality where the whole matter occurred, he can better judge of the value of the testimony than the court can from the written or printed record, is applicable here and should control. But, independently of this, I think that a careful examination of the [429]*429evidence, as it is before the court here, justifies the conclusion reached by the master “that 'Mrs. Drennen did not consent to, nor did she agree to, nor advise or originate, the filing of the caveat.”
[1] The next exception that may be considered is the defendants’ exception that the master erred in finding that the trust for Mrs. Tillman was properly and legally created by the will. In my judgment the master’s finding and conclusion on this subject were correct. If a life estate in one-half of the testator’s property had been given to Mrs. Tillman and a trust created for it, then a different question would be presented; but where, as in the present case, the trustees are given certain duties to perform with reference to the property, that is of managing it and collecting the income, and paying to Mrs. Tillman so much of the income, and only so much, as was necessary for her “support, benefit, and comfort,” it makes an entirely different proposition. In addition to this, there was a contingency as to Mrs. Drennen taking in remainder any part of this first half of the estate, as stated in the fifth item of the will. The master, also, it seems to me, correctly found that the case of Prince et al. v. Barrow, 120 Ga. 810, 48 S. E. 412, is controlling, independently of the other authorities cited by him in his report. 1 have had no doubt from the beginning of the case that this trust was properly created under the law of Georgia.
The complainant’s exceptions raise the most serious questions for consideration: P'irst, with reference to Mrs. Tillman’s failure to pay over the insurance money; and, second, the filing of the caveat to the will.
[2] As to the first matter, the $5,000 of insurance money, the master correctly found that what occurred as to this did not work a forfeiture of Mrs. Tillman’s legacy under the will. The evidence shows that every one interested in the estate agreed, and that it was a matter of unanimous consent, that Mrs. Tillman should retain this $5,000. The master says on this subject:
“While there is no direct evidence by her (Mrs. Drennen) that she desired her mother to take the proceeds of the insurance policy, the evidence generally shows that it was conceded that Mrs. Tillman ought to have the insurance money.
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NEWMAN, District Judge.
This case is now before the court on exceptions to the report of the standing master, which have been argued and the matter submitted. Since hearing the argument I have gone over this case with much care, in view of the important and difficult questions involved.
There are exceptions by both sides, both before the master, to the draft of his report, and to the report as filed.
Complainant’s exceptions are:
First, that the master erred in finding that, as a matter of fact, the widow, Hattie Tillman, did not fail and refuse to turn over to the executors the proceeds of the insurance policy, to become a part of the testator’s estate, as required by the will. This exception is elaborated, but it goes to the question stated.
The second exception is that the master erred in finding and conclusion that the filing of the caveat to the will by Mrs. Tillman, and the failure to pay over the proceeds of the insurance policy, “were no such violations of the conditions of items 13 and 14 of the will as would lead to forfeiture of all interest, and thereby vesting absolutely in complainant a one-sixth interest in the first half of the estate, and in the house and lot and insurance fund.”
In this connection it is claimed in the exceptions that the master erred in construing the language of the will to imply “willful failure and refusal” to turn over the proceeds of the insurance policy; the claim being in the exceptions that nothing in item 13 justifies the conclusion that the wife must be guilty of willful failure to make payment of the proceeds of the insurance policy to the executors, but that her omission to make such payment, without demand, deprived her of her legacy under the will other than the $500.
It is further claimed in the exceptions that the master erred in concluding and holding that the phrase “taking legal steps” in the will means that a suit at law, involving a trial and adjudication against the caveator on the issues raised, was necessary.
[428]*428The foregoing, as' stated, is considerably elaborated in the exceptions ; but this states the points involved in the exceptions.
The first exception of the defendants is that the master erred in ■ holding that “the first, second, and third grounds of the demurrer, while stated differently, are practically a general demurrer to the bill, in that such a case has not been stated as entitles complainant to relief in a court of equity,” and “in the opinion of the master these are not well taken and the same are overruled.”
The second exception of the defendant is that the master erred in not finding that the complainant, Mrs. Drennen, was connected with the filing of the caveat “to this extent and in this way: That Mrs. Drennen was willing that the caveat be filed and assented to its being filed, provided R. E. Clements thought that it was for the best interest of Mrs. Tillman for the caveat to be filed, and upon that concerted action on the part of complainant and R. E. Clements the caveat was filed.” Certain evidence is set out which, it is claimed, justifies this exception.
The third exception is that the master erred in finding that this bequest to Mrs. Tillman was an executory devise, and the trust was therefore valid and subsisting and the legal title to the part set aside for the trustees vested in trust eo instanti on the death of the testator, contending that the master should have found that the trust sought to have been created by the testator was illegal and'void.
The fourth and fifth exceptions are that the master erred in recommending that a trustee be appointed to whom the executors should be required fi> pay the $32,317.60, to be held for the benefit of the complainant pending the matter of the contingency provided for in the will.
The first matter that may be noted in passing on these exceptions is the objection to the master’s finding on the pleading. No great stress was laid on this in the argument, and properly so, because I do not think the exceptions with reference to the pleading are meritorious.
The next exception in order, probably, is the exception of the defendants in that thej master erred in not finding that Mrs. Drennen, the complainant, co-operated with Mrs. Tillman, or rather with her brother, R. E. Clements, in the filing of the caveat, and was such a party to it and co-operated in such a way that she is precluded now from raising the question she does by her pleading with reference thereto.
This has been a matter of some difficulty with me, and I have gone over the evidence with considerable care. But after full consideration of it, I am satisfied that the evidence justifies the master’s conclusion on this subject. The familiar rule, so often controlling in questions of this sort, that where the master has the witnesses all before him, sees them, and hears their examination and cross-examination, and hears the case in the locality where the whole matter occurred, he can better judge of the value of the testimony than the court can from the written or printed record, is applicable here and should control. But, independently of this, I think that a careful examination of the [429]*429evidence, as it is before the court here, justifies the conclusion reached by the master “that 'Mrs. Drennen did not consent to, nor did she agree to, nor advise or originate, the filing of the caveat.”
[1] The next exception that may be considered is the defendants’ exception that the master erred in finding that the trust for Mrs. Tillman was properly and legally created by the will. In my judgment the master’s finding and conclusion on this subject were correct. If a life estate in one-half of the testator’s property had been given to Mrs. Tillman and a trust created for it, then a different question would be presented; but where, as in the present case, the trustees are given certain duties to perform with reference to the property, that is of managing it and collecting the income, and paying to Mrs. Tillman so much of the income, and only so much, as was necessary for her “support, benefit, and comfort,” it makes an entirely different proposition. In addition to this, there was a contingency as to Mrs. Drennen taking in remainder any part of this first half of the estate, as stated in the fifth item of the will. The master, also, it seems to me, correctly found that the case of Prince et al. v. Barrow, 120 Ga. 810, 48 S. E. 412, is controlling, independently of the other authorities cited by him in his report. 1 have had no doubt from the beginning of the case that this trust was properly created under the law of Georgia.
The complainant’s exceptions raise the most serious questions for consideration: P'irst, with reference to Mrs. Tillman’s failure to pay over the insurance money; and, second, the filing of the caveat to the will.
[2] As to the first matter, the $5,000 of insurance money, the master correctly found that what occurred as to this did not work a forfeiture of Mrs. Tillman’s legacy under the will. The evidence shows that every one interested in the estate agreed, and that it was a matter of unanimous consent, that Mrs. Tillman should retain this $5,000. The master says on this subject:
“While there is no direct evidence by her (Mrs. Drennen) that she desired her mother to take the proceeds of the insurance policy, the evidence generally shows that it was conceded that Mrs. Tillman ought to have the insurance money. Some of the witnesses state positively that there was a general understanding that she need not pay this over to the executors They and she testify no demand was ever made for it and no refusal on her part to pay it over.”
There is no difficulty, under the evidence, in acquiescing in the master’s conclusion that this retention of the insurance money by Mrs. Tillman,'acceded to, and, under the evidence, practically agreed to, by everybody in interest, is insufficient to deprive her of her legacy under the will.
[3] The next, and most serious, question is the filing of the caveat by Mrs. Tillman, in the court of ordinary for Muscogee county.
On this question the master says:
“I construe the phrase ‘taking legal steps’ in the will to mean that the testator contemplated a suit at. law, involving a trial and adjudication against the caveator of the issues raised. It would be necessary in this [430]*430view of the law to have a trial and adjudication before Mrs. Tillman could be held to the penalty of forfeiture under that condition of the will. The evidence shows withdrawal by consent before trial, or the taking of any steps towards perfecting a suit or action in its full meaning.”
It may be unnecessary to go as far as the master does in construing this language “taking legal steps,” that there must bé a trial and final adjudication; but there should be shown, at least, some persistency by the caveator in contesting the will. The mere filing of the caveat on the 2d of July, and the voluntary withdrawal of the same on the 12th, would certainly not come within the meaning of the testator. He said in the will, “In the event my said wife shall take any legal steps to set aside this will and shall not succeed in such endeavor, etc.” Conceding that the filing of the caveat was “taking legal steps,” the almost immediate withdrawal of the caveat would hardly be “not succeeding in such endeavor,” but would be a voluntary abandonment of the endeavor.
[4] The most important phase is that, as the result of this proceeding in the court of ordinary, the widow, Mrs. Tillman, received a lump sum down instead of a life support out of thé estate, as provided by her husband in his will. The Heard children bought Mrs. Tillman’s legacy, the caveat was withdrawn, and the will promptly admitted to probate, and the administration of the estate proceeded. This agreement was undoubtedly good between the Heard children and Mrs. Tillman; they were satisfied with it at the time, and it is apparently still satisfactory to them. How was Mrs. Drennen hurt by this agreement between the Heard children and Mrs. Tillman, which avoided a contest over the will and admitted it to probate? If the caveat had not been filed and the will regularly admitted to probate, and the estate been administered under it,- her rights would have been measured by the will, and her participation in the first half of the estate, as it is called, would have been dependent upon the occurrence of the contingency provided for by Mr. Tillman in the will; that is, that she should take one-sixth of this one-half of the estate in remainder, provided she should have a child born to her and living at the time of Mrs. Tillman’s death. As it stands now, she has the same right exactly, andl that right must be protected, of course, in some way.
If the contest of the will had proceeded, and it had been set aside, of course Mrs. Tillman would have 'been the sole heir to the estate, and Mrs. Drennen would have received nothing. Her participation in the estate was only because of the will, and she has already received from the estate a large part of the one-sixth of the second half of the estate, which was given to her and the five Heard children.
As I have stated, it seems to me that the important feature of this branch of the case is this settlement between the Heard children and Mrs. Tillman, and if satisfactory to them, and good as between them, and Mrs. Drennen’s rights are in no way affected by the same, I do not see how she can set up the claim made by this bill. If the caveat had not been filed by Mrs. .Tillmaií and no steps of any kind taken to [431]*431contest the will, and the Heard children had bought Mrs. Tillman’s interest of a life support in the estate, it would hardly be claimed that they violated the provisions of the will with reference to “taking legal steps,” etc., to contest it. Mrs. Drennen would not have been affected in any way by this and would have had no cause to complain. Therefore the filing of the caveat and its almost immediate withdrawal was not “taking legal steps” to set aside this will, and, failing to succeed in such endeavor, neither was the purchase by the Heard children of Mrs. Tillman’s right to a support for life out of the estate, nor were the two together, in my judgment, a violation of this provision of the will.
In the case of Re Estate of John R. Hite (Grove v. Gross, 21 R. R. A. [N. S.] 9531), a contest was filed to a codicil to the will of Hite. The executor employed attorneys to meet the contest and filed his answer; motion was made by contestant to strike a portion of the answer, which motion was granted; the hearing of the contest was continued by consent several times, the case pending from April until January, when it was compromised. It was held that this amounted to a contest of the will, violating a provision of the will against contesting the same by any of the legatees. This made that case materially different from the present case, where nothing was done, as has been formerly stated, except to file a caveat and within a few days to withdraw it without any action whatever. The Hite Case, however, it may be conceded, is the strongest case cited by counsel for complainant.
Counsel for complainant has ably contended that the fact of this filing of the caveat to the will by Mrs. Tillman and the sale by her of her life support to the Heard children violated the “testamentary scheme” of Mr. Tillman. It is urged that the will discloses the fact that it was the testator’s purpose that his wife should simply have a support for life out of the estate, and not a lump sum to be hers absolutely. It may be equally well urged that it was his belief that arranging his estate as he did was best for the comfort and happiness of Mrs. Tillman, that she would be relieved in this way of the care and responsibility of the property and'have every comfort that she needed during life. But, however this may be, it could not interfere with the right of parties competent otherwise to contract.
The same suggestion might have been made as to the will in the •case of Prince v. Barrow, supra. The first language used by the court in the opinion in that case is:
“Can the widow and other heirs at law of the testator set aside his will, and by agreement settle his estate among themselves? Undoubtedly they can, if they are the only parties who have any legal or equitable interest therein.”
Would it not be equally true if the other parties having any interest under the will have their rights fully recognized and maintained by any agreement so made? Mrs. Drennen’s rights under this will as the testator made it are certainly unaffected by the agreement between [432]*432the Heard children and Mrs. Tillman, or by the master in his findings and report. I am unable to reach any other conclusion than that the report of the master is correct, and that the exceptions by both the complainant and defendants should be overruled.
What has been said makes it unnecessary to consider or to discuss the contention of counsel for defendants that a court of equity will not, in any event, decree a forfeiture. It is an interesting, question, but it need not be gone into here.
How Mrs. Drennen’s contingent interest in this estate should be protected is a matter about which I am in doubt. Whether a trustee or trustees should be appointed by the court to hold the same for her benefit pending the contingency, or whether it is well protected as it stands in the hands of the, executors, is a matter that may be determined on the taking of the final decree, when counsel can be heard, if they desire, with, reference to the same.