Wheeler, J.
One of the questions submitted for our advice is whether or not the children of the testator have forfeited their claim to the estate by having violated paragraph eighth, and if so, to whom the estate and the income should be paid.
If the eighth paragraph be valid and literally interpreted, and the children have violated it, they have forfeited their claim to any part of this estate. The consideration of this question should precede all other questions, for, if the children have forfeited their claim to this estate, consideration of other questions under the will, so far as they are concerned, is academic.
The appeal from the Court of Probate took up to the Superior Court the special statutory issue, whether the will was a valid will. That was the sole issue of the appeal.
St. Leger’s Appeal,
34 Conn. 434, 447. The parties subsequently, in a very apparent attempt to avoid the consequences of having contested the will, stipulated that the only question to be determined upon the appeal was as to the construction of paragraph seven. Counsel for the Trust Company, in his brief, persists in assuming the existence of this wholly artificial position, but the counsel for the children frankly admit the real situation in their brief when they say: “The widow and all of the children joined in an appeal from the order and decree of the Court of Probate for the district of Norwalk admitting the will to probate, on the ground that the testator was of unsound mind when the will was made and executed; but they afterward came to feel such a dread of the consequences which would follow from legally establishing the mental incapacity of the testator, that they instructed counsel not to pursue that feature of the
case, and, instead, to have the court determine the legality of the trust created by the will.”
Two things are to be noted about this statement: (1) It is an inaccuracy to state that the widow joined in this appeal. (2) Counsel seek to bring the case within one of the exceptions, which some jurisdictions sustain, to the general rule supporting forfeiture clauses of the character of that in this will, by assuming that there exists
probabalis causa liiigandi.
The appeal was an attack upon the validity of the will, and the subsequent effort of the children to conceal this purpose must fail. The children, by their appeal, engaged in an act which the testator attempted to penalize by prescribing a forfeiture of the interest given them by his will. Substantially all authorities agree that a testator may in some cases impose upon a legatee a condition forfeiting his legacy if he contest the validity of the will. Counsel for the children concede this, for they say in their briefs: “While the validity of such condition is generally recognized, the exceptions to its operations have intrenched upon its effectiveness.”
In England, the action to secure a legacy could be had- in the ecclesiastical courts, where the rule of the civil law prevailed, in which a fiction had been adopted that, unless there was a gift over of such a legacy, no forfeiture would be decreed. The English court of equity accepted this rule, and enforced it as to legacies of personal property, but not as to devises of land. It was early pointed out by American text-writers and jurists that there was no substantial ground for any distinction in this respect between real and personal estate, and that the exception was purely an artificial one, and unsupported by any adequate reason. Some few of the American courts have adopted the English view, although in some instances recognizing that the
exception is not based on any satisfactory reason.
Fifield
v.
Van Wyck,
94 Va. 557, 563, 27 S. E. 446;
Friend’s Estate,
209 Pa. St. 442, 446, 58 Atl. 853;
Matter of Arrowsmith,
162 N. Y. App. Div. 623, 628,147 N. Y. Supp. 1016. The great majority of the American courts have repudiated this exception.
Bradford
v.
Bradford,
19 Ohio St. 546, 547;
Moran
v.
Moran,
144 Iowa, 451, 462, 123 N. W. 202;
Thompson
v.
Gaut,
14 Lea (82 Tenn.) 310, 315;
Estate of Hite,
155 Cal. 436, 445, 101 Pac. 443;
Donegan
v.
Wade,
70 Ala. 501;
Hoit
v.
Hoit,
42 N. J. Eq. 388, 7 Atl. 856;
Massie
v.
Massie,
54 Tex. Civ. App. 617, 118 S. W. 219;
Smithsonian Institution
v.
Meech,
169 U. S. 398, 413, 18 Sup. Ct. 396. Most of these authorities support a condition of forfeiture without recognizing any exception. Their underlying principle is, that since the testator may attach any condition to his gift which is not violative of law or public policy, the legatee must either take the gift with its conditions or reject it. The disposition' of these authorities has been to sustain forfeiture clauses as a method of preventing will contests, which so often breed family antagonisms and expose family secrets better left untold, and result in a waste of estates through expensive and long drawn-out litigation.
The children suggest the possible approval of this exception, based on the failure to provide for a gift over, but the trustee omits reference to it. The trustee relies upon the appeal having been one to secure the construction of the will, rather than one to contest its validity. And both trustee and children unite in urging upon us, as an exception to the rule of forefeiture, the exception that if reasonable cause exist for the contest, a forfeiture will not be decreed. And they further urge that a forfeiture has been waived by them through their acquiescence in the execution of the will.
One of the claimed exceptions to the general rule of
forfeiture is not an exception. If the action of a legatee is merely one to determine the true construction of the will, or of any of its parts, the action could not be held to breach the ordinary forfeiture clause, for the object of the action is not to make void the will, or any of its parts, but to ascertain its true legal meaning.
Black
v.
Herring,
79 Md. 146, 152, 28 Atl. 1063; 1 Schouler on Wills (5th Ed.) § 605. The appeal taken from the decree of the Court of Probate did not, as we have before pointed out, raise the question of the construction of this will.
The exception that a contest for which there is a reasonable ground will not work a forfeiture, stands upon better ground. It is quite likely true that the authorities of greater number refuse to accept this exception, but we think it has behind it the better reason. It rests upon a sound public policy. The law prescribes who may make a will and how it shall be made; that it must be executed in a named mode, by a person having testamentary capacity and acting freely, and not under undue influence. The law is vitally interested in having property transmitted by will under these conditions, and none others.
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Wheeler, J.
One of the questions submitted for our advice is whether or not the children of the testator have forfeited their claim to the estate by having violated paragraph eighth, and if so, to whom the estate and the income should be paid.
If the eighth paragraph be valid and literally interpreted, and the children have violated it, they have forfeited their claim to any part of this estate. The consideration of this question should precede all other questions, for, if the children have forfeited their claim to this estate, consideration of other questions under the will, so far as they are concerned, is academic.
The appeal from the Court of Probate took up to the Superior Court the special statutory issue, whether the will was a valid will. That was the sole issue of the appeal.
St. Leger’s Appeal,
34 Conn. 434, 447. The parties subsequently, in a very apparent attempt to avoid the consequences of having contested the will, stipulated that the only question to be determined upon the appeal was as to the construction of paragraph seven. Counsel for the Trust Company, in his brief, persists in assuming the existence of this wholly artificial position, but the counsel for the children frankly admit the real situation in their brief when they say: “The widow and all of the children joined in an appeal from the order and decree of the Court of Probate for the district of Norwalk admitting the will to probate, on the ground that the testator was of unsound mind when the will was made and executed; but they afterward came to feel such a dread of the consequences which would follow from legally establishing the mental incapacity of the testator, that they instructed counsel not to pursue that feature of the
case, and, instead, to have the court determine the legality of the trust created by the will.”
Two things are to be noted about this statement: (1) It is an inaccuracy to state that the widow joined in this appeal. (2) Counsel seek to bring the case within one of the exceptions, which some jurisdictions sustain, to the general rule supporting forfeiture clauses of the character of that in this will, by assuming that there exists
probabalis causa liiigandi.
The appeal was an attack upon the validity of the will, and the subsequent effort of the children to conceal this purpose must fail. The children, by their appeal, engaged in an act which the testator attempted to penalize by prescribing a forfeiture of the interest given them by his will. Substantially all authorities agree that a testator may in some cases impose upon a legatee a condition forfeiting his legacy if he contest the validity of the will. Counsel for the children concede this, for they say in their briefs: “While the validity of such condition is generally recognized, the exceptions to its operations have intrenched upon its effectiveness.”
In England, the action to secure a legacy could be had- in the ecclesiastical courts, where the rule of the civil law prevailed, in which a fiction had been adopted that, unless there was a gift over of such a legacy, no forfeiture would be decreed. The English court of equity accepted this rule, and enforced it as to legacies of personal property, but not as to devises of land. It was early pointed out by American text-writers and jurists that there was no substantial ground for any distinction in this respect between real and personal estate, and that the exception was purely an artificial one, and unsupported by any adequate reason. Some few of the American courts have adopted the English view, although in some instances recognizing that the
exception is not based on any satisfactory reason.
Fifield
v.
Van Wyck,
94 Va. 557, 563, 27 S. E. 446;
Friend’s Estate,
209 Pa. St. 442, 446, 58 Atl. 853;
Matter of Arrowsmith,
162 N. Y. App. Div. 623, 628,147 N. Y. Supp. 1016. The great majority of the American courts have repudiated this exception.
Bradford
v.
Bradford,
19 Ohio St. 546, 547;
Moran
v.
Moran,
144 Iowa, 451, 462, 123 N. W. 202;
Thompson
v.
Gaut,
14 Lea (82 Tenn.) 310, 315;
Estate of Hite,
155 Cal. 436, 445, 101 Pac. 443;
Donegan
v.
Wade,
70 Ala. 501;
Hoit
v.
Hoit,
42 N. J. Eq. 388, 7 Atl. 856;
Massie
v.
Massie,
54 Tex. Civ. App. 617, 118 S. W. 219;
Smithsonian Institution
v.
Meech,
169 U. S. 398, 413, 18 Sup. Ct. 396. Most of these authorities support a condition of forfeiture without recognizing any exception. Their underlying principle is, that since the testator may attach any condition to his gift which is not violative of law or public policy, the legatee must either take the gift with its conditions or reject it. The disposition' of these authorities has been to sustain forfeiture clauses as a method of preventing will contests, which so often breed family antagonisms and expose family secrets better left untold, and result in a waste of estates through expensive and long drawn-out litigation.
The children suggest the possible approval of this exception, based on the failure to provide for a gift over, but the trustee omits reference to it. The trustee relies upon the appeal having been one to secure the construction of the will, rather than one to contest its validity. And both trustee and children unite in urging upon us, as an exception to the rule of forefeiture, the exception that if reasonable cause exist for the contest, a forfeiture will not be decreed. And they further urge that a forfeiture has been waived by them through their acquiescence in the execution of the will.
One of the claimed exceptions to the general rule of
forfeiture is not an exception. If the action of a legatee is merely one to determine the true construction of the will, or of any of its parts, the action could not be held to breach the ordinary forfeiture clause, for the object of the action is not to make void the will, or any of its parts, but to ascertain its true legal meaning.
Black
v.
Herring,
79 Md. 146, 152, 28 Atl. 1063; 1 Schouler on Wills (5th Ed.) § 605. The appeal taken from the decree of the Court of Probate did not, as we have before pointed out, raise the question of the construction of this will.
The exception that a contest for which there is a reasonable ground will not work a forfeiture, stands upon better ground. It is quite likely true that the authorities of greater number refuse to accept this exception, but we think it has behind it the better reason. It rests upon a sound public policy. The law prescribes who may make a will and how it shall be made; that it must be executed in a named mode, by a person having testamentary capacity and acting freely, and not under undue influence. The law is vitally interested in having property transmitted by will under these conditions, and none others. Courts cannot know whether a will, good on its face, was made in conformity to statutory requirements, whether the testator was of sound mind, and whether the will was the product of undue influence, unless these matters are presented in court; and those only who have an interest in the will, will have the disposition to lay the facts before the court. If they are forced to remain silent, upon-penalty of forfeiture of a legacy or devise given them by the will, the court will be prevented by the command of the testator from ascertaining the truth; and the devolution of property will be had in a manner against both statutory and common law. Courts exist to ascertain the truth and to apply the law to it in any given sitúa
tion; and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law, is a mistaken public policy. If, on contest, the will would have been held invalid, the literal interpretation of the forfeiture provision has suppressed the truth and impeded the true course of justice. If the will should be held valid, no harm has been done through the contest, except the delay and the attendant expense.
Where the contest has not been made in good faith, and upon probable cause and reasonable justification, the forfeiture should be given full operative effect. Where the contrary appears, the legatee ought not to forfeit his legacy. He has been engaged in helping the court to ascertain whether the instrument purporting to be the will of the testator is such. The contest will not defeat the valid will, but it may, as it ought, the invalid will. The effect of broadly interpreting a forfeiture clause as barring all contests on penalty of forfeiture, whether made on probable cause or not, will furnish those who would profit by a will procured by undue influence, or made by one lacking testamentary capacity, with a helpful cover for their wrongful designs.
The practical difficulties following this exception are more apparent than real. Contests will be made only in causes where they are justified. Doubtful cases will not invite a forfeiture. There will be no more burden put upon the court in finding the fact of probable cause than in finding similar facts in other classes of cases. Schouler on Wills (5th Ed., Vol. 1) § 605, states his view upon this subject thus: “To exclude all contest of the probate on reasonable ground that the testator was insane or unduly influenced when he made it, is to intrench fraud and coercion more securely; and public policy should not concede that a
legatee, no matter what ground of litigation existed, must forfeit his legacy if the will is finally admitted.”
Estate of Hite,
155 Cal. 436, 101 Pac. 443;
Friend’s Estate,
209 Pa. St. 442, 444, 58 Atl. 853;
Jackson
v.
Westerfield,
61 How. Pr. (N. Y.) 399;
In re Kathan’s Will,
141 N. Y. Supp. 705, 710';
Smithsonian Institution
v.
Meech,
169 U. S. 398, 413, 18 Sup. Ct. 396;
Cooke
v.
Turner,
14 Simons, 493;
Morris
v.
Burroughs,
1 Atk. 399, 404.
The facts of record are silent as to whether this contest was begun in good faith, and whether there was probable cause and reasonable justification. The stipulated facts do not bring the case within this exception.
These beneficiaries say that they are the only persons who-could cláim a forfeiture, and as they are all in court, requesting a division of the property in pursuance of the. provisions of the will, they must be held to have waived the right to claim a forfeiture, and to have acquiesced in the execution of the will as a valid will. The court has before it a will providing for a forfeiture, and facts showing the existence of the forfeiture. Under those conditions, the court could not permit the testator’s expressed will to be rendered nugatory by the consent of his beneficiaries. Its duty is to see that the testator’s intention is consummated. The clause of forfeiture is one beneficiaries cannot waive. They may waive a known right of their own. They cannot waive a right which was exclusively the testator’s, and one which he made a condition of his bounty and a guide to the devolution of his estate. Let us suppose that only one of six beneficiaries had forfeited his right to a bequest. Could all the other beneficiaries waive the forfeiture? Could an executor or a trustee refuse to present the facts of waiver before the court? And is it not his duty to insist upon the forfeit-
ure, and thus to carry out the will of the testator? We find no authority which supports the claim of waiver of this forfeiture except
Williams
v.
Williams,
15 Lea (83 Term.) 438, 454. Authority upon the point is limited, but against this view. Agreements by beneficiaries cannot validate a void trust. 2 Schouler on Wills (5th Ed.) § 1072;
Dresser
v.
Travis,
39 Misc. (N. Y.) 358, 79 N. Y. Supp. 924. It is a well-recognized rule of law that contracts between devisees and legatees are not enforceable, when made with the apparent purpose of thwarting the testator’s desires.
Mercier
v.
Mercier, 50
Ga. 546;
Cuthbert
v.
Chauvet,
136 N. Y. 326, 332, 32 N. E. 1088. This condition of forfeiture is not made for the benefit of the other beneficiaries, but to carry out the wishes of the testator. It is totally apart from a condition subsequent for the benefit of a third party, as where a will bequeathed land to a testator’s heirs on condition that they pay for certain improvements to the heirs of S. The latter could waive the payment, for it was for their benefit. Such a waiver does not defeat the testator’s will.
Hill
v.
Gianelli,
221 Ill. 286, 77 N. E. 458.
The Superior Court is advised that said eight children, by contesting the probate of the will of Oscar St. John, have forfeited all rights under his will, and that the property in plaintiff’s hands is intestate estate.
No costs in this court will be taxed in favor of any of the parties.
In this opinion the other judges concurred.