Elder v. Elder

• Decision Date: 17 January 1956
• Docket Number: No. 2391,2391
• Citation: 120 A.2d 815,84 R.I. 13
• Parties: Althea M. ELDER, Ex'x, v. Robert L. ELDER et al. Eq. . March 9, as of
• Court: Rhode Island Supreme Court

Page 815

120 A.2d 815

84 R.I. 13

Althea M. ELDER, Ex'x, v. Robert L. ELDER et al.

Eq. No. 2391.

Supreme Court of Rhode Island.

March 9, as of Jan. 17, 1956.

Corcoran, Peckham & Hayes, Edward J. Corcoran, Edward B. Corcoran, Newport, for complainant.

Arthur J. Sullivan, Newport, for respondent Robert L. Elder.

Cornelius C. Moore, Frederick W. Faerber, Jr., Newport, Charles H. Drummey, Providence, for respondent Rosella A. Elder.

Joseph J. Nicholson, John R. Haire, Newport, guardians ad litem.

FLYNN, Chief Justice.

This bill in equity was brought by the executrix of the will of Victor H. Elder to obtain instructions relative to the construction and disposition of certain legacies and devises thereunder. The principal respondents are Robert L. Elder and Rosella A. Elder, who are respectively the son and the widow of the testator. All necessary parties were represented, and guardians ad litem for minors and unascertained persons having an interest were appointed and filed appropriate answers. In the superior court evidence was introduced and it included the transcript of a previous trial in which the will had been contested unsuccessfully by the respondent Robert L. Elder. When the cause was ready for final decree it was certified to this court, under General Laws 1938, chapter 545, § 7, for our determination of the questions therein set forth.

The will was executed by Victor H. Elder in the city of White Plains, New York, on March 5, 1951 while he was there temporarily to receive medical treatment. He died April 4, 1951 and the will was duly admitted to probate by the probate court of the town of Middletown in this state, which was the testator's legal domicile. The complainant Althea M. Elder and the respondent Robert L. Elder, who are the only children of the testator, were named in the will as executors and trustees. However, Robert L. Elder declined his appointment 'as an executor' and from the decree of the probate court allowing the will he prosecuted an appeal to the superior court.

In the latter court he alleged the will was invalid on the grounds that the testator was of unsound mind and lacking in testamentary capacity; that it was the result of undue influence exercised upon the testator; and that it was not executed in accordance with the formalities required by the law of this state. At that trial, however, no evidence was offered to prove that the testator was of unsound mind, or lacking in testamentary capacity, or that the document was not executed according to the formal requirements of law. Consequently by direction of the court those issues were removed from the consideration of the jury.

Thereupon the jury considered the remaining issue of alleged undue influence and returned a verdict that the document in question was not obtained by such influence but was the last will and testament of Victor H. Elder. Later the trial justice denied the contestant's motion for a new trial, and since no exception thereto was duly prosecuted the verdict as to the validity of the will became final. As a result of such contest, however, the complainant as sole qualifying 'executor' under the will, being in doubt as to the legal effect of provisions in the will relating to forfeitures of benefits by contestants thereof, brought this bill in equity to obtain certain instructions thereunder.

In general the will discloses, in addition to a specific devise in fee simple to Rosella A. Elder, the widow, other devises and bequests to the trustees for her benefit during her life with remainder over to complainant and her issue. It also provides for an absolute bequest of jewelry to the respondent Robert L. Elder, and by clause Fourth makes certain devises and bequests to the trustees for the benefit of Robert L. Elder during his life with subsequent disposition thereof as follows:

'd) Upon the death of my said son, Robert L. Elder, I direct my trustees hereinafter named to convey said 4 Freeborn Street, Newport, Rhode Island, together with the grounds and garage and any undistributed income from same, together with lots numbers 4 and 5 above mentioned, to my daughter, Althea M. Elder, above referred to, or her issue then surviving, share and share alike.

e) If my said daughter, Althea M. Elder, should leave no issue her surviving, then I direct my trustees hereinafter mentioned to convey said 4 Freeborn Street, together with lots numbers 4 and 5 on the same street, all located in Newport, Rhode Island, to the living issue of my said son, Robert L. Elder, if any, per stirpes and not per capita, share and share alike.'

The will further nominates the complainant daughter and the respondent son as executors and trustees under the will, and provides that if either is unable to serve 'by reason of the death, resignation, incapacity, or refusal to act * * * the surviving executor and trustee shall serve individually.' Then after stating in clause Eleventh the testator's view that the disposition was fair and equitable and his hope that all would be satisfied, he provides in clause Twelfth as follows 'If any legatee or devisee named in this Will should institute, conduct or share in any proceedings to oppose the probate of this, my Last Will and Testament, or to attack any of its provisions in any way whatsoever, it is my wish that such person or persons shall receive nothing under this Will, or from my estate, and I do hereby annul and revoke any legacies, trusts or bequests made to or for the benefit of any such person or persons, and I direct that they shall be and become null and void.'

The instructions sought by complainant involve the legality of these provisions for forfeiture in the event of a contest by a beneficiary and the legal effect of the contest on other pertinent provisions of the will under which such contestant was a beneficiary.

The first certified question reads as follows:

'I. What is the legal effect of the contest of the Will of Victor H. Elder, deceased, by the respondent, Robert L. Elder?

a) Did it void the Fourth Clause of said Will in its entirety and cause the real estate thereby devised to become part of the residuary estate? or

b) If it did not void said Fourth Clause in its entirety, did it cause a forfeiture of the interest of said Robert L. Elder in said real estate as a beneficiary of the trust thereby created and entitle the complainant, Althea M. Elder, to receive a conveyance of said real estate in fee simple?

c) Did it cause a forfeiture of the interest and share of said Robert L. Elder under the Seventh Clause of said Will in the residuary estate of the testator?'

The issue underlying this question has not been directly determined in this state so far as we are aware. However, the courts of many other jurisdictions have considered and decided it. Apparently most of them agree that in general a provision of a will, requiring a forfeiture of a gift in the event a contest of the will is made by the beneficiary thereof, is valid. See 67 A.L.R. 52. However, in a few jurisdictions the general rule is limited by a so-called exception whereby such provision, though held to be valid as to a gift of realty, is not enforceable as to a gift of personalty, at least where there is no specific gift over in the event of a breach of the condition. In such event, apparently following what is supposed to be the English rule, it is considered as merely in terrorem. Examples of those cases are referred to in Cooke v. Turner, 14 Simons 493, 15 M. & W. 727; Fifield v. Van Wyck's Ex'r, 94 Va. 557, 563, 27 S.E. 446; Matter of Arrowsmith, 162 App.Div. 623, 628, 147 N.Y.S. 1016; but see In re Brush's Estate, 154 Misc. 480, 277 N.Y.S. 559.

Certain other courts find no reasonable basis for such distinctions, but nevertheless appear to hold that such a 'no-contest' provision is against public policy and inoperative where the beneficiary contests the will in good faith and upon probable cause. Examples of these cases are South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961; In re Will of Keenan, 188 Wis. 163, 205 N.W. 1001, 42 A.L.R. 836; Wadsworth v. Brigham, 125 Or. 428, 259 P. 299, 266 P. 875; In re Friend's Estate, 209 Pa. 442, 446, 58 A. 853, 68 L.R.A. 447, and In re Estate of Cocklin, 236 Iowa 98, 17 N.W.2d 129, 157 A.L.R. 584, overruling in part Moran v. Moran, 144 Iowa 451, 123 N.W. 202, 30 L.R.A.,N.S., 898.

A third group finds nothing in reason or principle legally to support either of the above limitations or so-called exceptions to the general rule. They apply the well-established rule of construction of wills by which effect is given to the clearly-expressed intent of the testator so long as the condition attached to the gift violates no positive rule of law or public policy. Examples of this class may be found in Rudd v. Searles, 262 Mass. 490, 160 N.E. 882, 58 A.L.R. 1548; Donegan v. Wade, 70 Ala. 501; Schiffer v. Brenton, 247 Mich 512, 226 N.W. 253; Provident Trust Co. of Philadelphia v. Osborne, 133 N.J.Eq. 518, 33 A.2d 103; Barry v. American Security & Trust Co., 77 U.S.App.D.C. 351, 135 F.2d 470, 146 A.L.R. 1204. See also In re Brush's Estate, supra, and other cases collected in the annotation in 67 A.L.R. 52 et seq.

In this jurisdiction we adhere to the cardinal rule of construction followed by the above-mentioned third group of courts whereby the whole will of the testator must be given effect according to its clearly-expressed intent if it is not contrary to law or public policy. Carpenter v. Smith, 77 R.I. 358, 75 A.2d 413; Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420; Barker v. Ashley, 58 R.I. 243, 192 A. 304.

In this general connection we find no law or policy that a testator is legally obligated to leave anything to his children. Indeed such an omission, if not the result of accident or mistake, has been consistently upheld by this court. Lindsley v. Lindsley, 60 R.I. 85, 197 A. 98; Smith v. Smith, 62 R.I. 52, 2 A.2d 896. G.L.1938, chap....