Whitehurst v. Gotwalt, 189 N.C. 577 (1925)

April 29, 1925 · Supreme Court of North Carolina
189 N.C. 577


(Filed 29 April, 1925.)

Wills — Intent—Public Policy — Provisions Against Contesting Will.

There is nothing in the disposition of real estate under a will against public policy or fixed principles of law (to prevent the plain intent of the testator) that those contesting it should not take-thereunder and their interests shall “revert” to those who may stand firmly by the testator’s wishes; and where the will has been caveated by some of the devisees without good reason, and some of its beneficiaries have remained neutral, those who actively participate in sustaining the will will receive the portion that would otherwise have been taken by the caveators, and those who remained neutral only such interests as were devised to them.

Appeal by petitioners and several of the respondents from Devin, J., from Pasquotank.

Petition for partition, heard upon “facts agreed.” From an order declaring and adjusting the interests of the respective parties in «the lands ordered to be sold for partition, the petitioners and a number of the respondents appeal.

Thompson & Wilson and McMvMan & Leroy for appellants.

Ehringhaus & Hall for appellees.

Stacy, C. J.

The case was heard on the evidence submitted and facts agreed, with the stipulation that the court might find further *578facts from the evidence in the case, if necessary to a final determination of the rights of the parties. A jury trial was expressly waived.

On the hearing the interests and rights of the respective parties were properly made to depend: first, upon the validity; and,, second, if valid, upon the rightful interpretation of the following clause in the will of D. E. Bradford:

“I do hereby and herein instruct and demand of my executrix, that if any attempt is made on the part of any of the beneficiaries herein named to defeat, nullify, or contest in law or otherwise, the disposition or division of my property as herein made by me, that those so endeavoring to defeat, nullify or contest my wishes as herein expressed, shall not be entitled to the part I have intended for them, and shall only receive the sum of $10 each, and that part or portion of my estate herein set apart for them, shall revert to the other legatees or beneficiaries as may stand firmly by my wishes as herein expressed, and defend the distribution and disposal herein made by me of my property.”

The locus in quo was devised by the testator to the petitioners and some of' the respondents as tenants in common. "We deem it unnecessary to-set out the precise interest of each, as it would serve no useful purpose, under the view we take of the case.

There was a caveat filed to the will of D. B. Bradford, in which D. B. Fearing, J. B. Fearing, and J. B. Griggs each joined. Upon the issue of devisavit vel non, raised thereby, the will was sustained. 183 N. C., 6. His Honor finds as a fact that the caveat was filed' without probable cause and that, therefore, all the interests of the caveators in the lands sought to be partitioned were forfeited under the above clause in the testator’s will.

It was also found by the court below that the petitioner, Mary White-hurst, and the respondents, Keith Fearing and Woodson Fearing, neither joined in said caveat proceeding nor assisted the propoounders in the defense of the will, but that all remained neutral throughout the contest. Upon this finding it was adjudged that their interests, as devisees, were unaffected by the caveat proceeding.

ít was further found as a fact that Minerva I. Gotwalt, Erskine Ehringhaus, Sr., Erskine Ehringhaus, Jr., Oamille Ehringhaus Foster, William Ehringhaus, Shelby Ehringhaus Gill, Elizabeth Ehringhaus Johnson and J. B. Culpepper, “legatees or beneficiaries” under the will, stood firmly by the wishes of the testator as therein expressed, and defended the distribution and disposal made therein by him of his property. Upon this finding it was adjudged that the part or portion of the testator’s estate set apart by him for the caveators should be divided *579equally (per stirpes) among tbe legatees or beneficiaries wbo stood firmly by tbe testator’s wishes.

Tbe parties to tbe present proceeding, therefore, are divided into three classes: (1) “Caveators,” whose interests in the lands have been forfeited, under the terms of the will, because of their effort to caveat same in tbe absence of probable cause for such proceeding; (2) “Neutrals,” who take their original interests under the will, unaffected by the caveat proceeding; and (3) “Propounders,” who stood firmly by the will, and whose devises are increased by an equal division among them (per stirpes) of the forfeited interests of the caveators.

Tbe caveators and tbe neutrals appeal, contending (1) that tbe forfeiture is void; and (2) that, if valid, tbe forfeited shares of the caveators do not go over to; the propounders, but “revert” to the testator’s heirs generally.

First, as to the validity of tbe forfeiture, it is tbe doctrine of the English courts that a condition subsequent, where the subject of disposition is personal property, is to be regarded as in terrorem only, and that a legacy will not be forfeited by a contest of the will, instituted by the legatee, unless by the terms of the will tbe legacy be given over to another, or be specifically directed to fall into the residue, upon breach of tbe condition. Put this doctrine has never been applied to devises of real estate. 2 Jarman on Wills, sec. 682. The distinction seems to have crept into tbe English law from the fact that the ecclesiastical courts early adopted the rule of the civil law which, contrary to tbe common law, regarded such conditions as in terrorem only. Later, the courts of equity followed the ecclesiastical courts with respect to bequests or legacies of personal property, and the common law with respect to devises of land. Bradford v. Bradford, 18 Ohio, 546; Estate of Hite, 155 Cal., 436, reported and annotated in 17 A. & E. Ann. Cas., 993; Kitchen v. Ballard, 220 Pac. (Cal.), 301, 30 A. L. R., 1008.

It is not material to determine in the present proceeding whether, in bequests of personal property, these artificial distinctions would be applied in North Carolina, for tbe devise in question is one of real estate, and by the clear weight of authority, both in England and in this country, a condition of forfeiture, if the devisee shall dispute tbe will, is valid in law. Cooke v. Turner, 15 M. & W. (Eng.), 735; Perry v. Rogers, 114 S. W. (Tex.), 897; Donegan v. Wade, 70 Ala., 501; Hoit v. Hoit, 42 N. J. Eq., 388; Thompson v. Gaut, 14 Lea (Tenn.), 314; 28 R. C. L., 315, and cases there cited.

It is further held that where there exists probalis causa litigcmdi, that is, a probable or plausible ground for the litigation, a condition in a will that a legatee shall forfeit bis legacy by contesting tbe will, is not binding, and under such circumstances a contest does not work a for*580feiture. Morris v. Burroughs, 1 Atk. (Eng.), 399; Powell v. Morgan, 2 Vern. (Eng.), 90; In re Friend, 209 Pa. St., 442; Smithsonian Inst. v. Meech, 169 U. S., 398. But bere it is found as a fact that no probable cause existed for tbe filing of the caveat.

It is tbe duty of tbe courts to effectuate tbe intention of tbe testator, and tbis is tbe cardinal principle in tbe interpretation of wills to wbicb all other rules must bend, un.less that intention be contrary to public policy or tbe settled rules of law. Witty v. Witty, 184 N. C., p. 381. No considerations of public policy bave been called to our attention, wbicb would seem to require tbat an beir should contest even tbe doubtful questions of law or of fact upon wbicb tbe validity of a devise or a bequest may depend. Tbis is a matter ordinarily affecting only tbe interests of tbe immediate parties. Speaking to tbe question in Cooke v. Turner, supra, it was said: “There is no duty on tbe part of an beir, whether of perfect or imperfect obligation, to contest bis ancestor’s sanity. It matters not to tbe State whether tbe land be enjoyed by tbe beir or devisee.”

There seems to be no precedent in North Carolina bearing directly-on tbe question, but we see no reason to doubt tbe soundness of tbe position assumed by Judge Redfield in his work on tbe Law of Wills (p. 679) : “Tbe rule of tbe English law, as to conditions against disputing tbe will, annexed to some bequests, seems to be in a most absurd state of confusion. It is held, such a condition is void as to personalty, unless the legacy be given over, in tbe event of failure to perform tbe conditions; but tbat such a condition is entirely valid as to real estate, whether there be any gift over or not. And it is agreed tbat there is no substantial ground for any distinction in tbis respect between real and personal estate^ Hence, we assume tbat in tbis country, any such condition, wbicb is reasonable, as one against disputing one’s will surely is, as nothing can be more in conformity to good policy than to prevent litigation, will be held binding and valid.”

We perceive no error in tbe judgment of tbe Superior Court, bolding tbe condition in question to be valid, and tbat upon its breach, tbe part or portion intended for tbe caveators passed to tbe propounders, or those who stood firmly by the will. The decisions in Miller’s case, 159 N. C., 123, and Yorkley v. Stinson, 97 N. C., 236, are not at variance with tbis position, but in support of it.

Nor do we perceive any error in tbe bolding tbat tbe “neutrals” should take no part of tbe forfeited estates originally intended for tbe caveators. Tbe finding of tbe court fixes them with an attitude of neutrality when tbe will was being assailed. Tbe testator provided tbat those who sought to defeat, nullify or contest bis will should not be entitled to tbe part be bad intended for them, but tbat such part or *581portion sbonld “revert,” go over, or be limited to those who should stand firmly by his wishes. To hold that the word “revert” means a technical reversion would be, not only to disregard the context, but also to defeat the entire limitation over to the propounders. This would be a strained construction and clearly contrary to the intention of the testator.

A careful and painstaking perusal of the whole record leaves us with the impression that the case has been disposed of according to law.