Hoit v. Hoit

• Decision Date: 30 November 1886
• Citation: 7 A. 856,42 N.J.E. 388
• Parties: HOIT v. HOIT.
• Court: New Jersey Supreme Court

7 A. 856

42 N.J.E. 388

HOIT

v. HOIT.

Court of Errors and Appeals of New Jersey.

November Term, 1886.

(Syllabus by the Court.)

On appeal from court of chancery. See 5 Atl. Rep. 103.

Oscar Jeffrey, for appellant.

J. G. Shipman & Son, for appellee.

SCUDDER, J. John G. Hoit, late of the township of Oxford, in the county of Warren, and state of New Jersey, by last will and testament duly executed, devised and bequeathed to his wife, Sarah A. Hoit, the appellant, certain lands and all his personal property, and she was to pay all his just debts, funeral and other expenses. In subsequent parts of the will he devised severally to his sons tracts of lands for certain estates, and on limitations therein contained. The will concludes with this sentence: "If any or either of my children shall enter a caveat against this my will, he or they shall pay all the expenses of both sides." Nathan Hoit, one of the testator's sons, and a devisee in his will, did enter a caveat against the will. The orphans' court certified the questions involved in the controversy into the circuit court of the same county, and they were tried upon an issue framed, a verdict found for the proponent, which was certified and returned to the orphans' court, and the will admitted to probate. That court made an order concerning the costs, expenses, and allowance of counsel fees, under section 20 and section 177 (amendatory of section 169) of the orphans' court act, adjudging that the contestant had reasonable cause for contesting the validity of the will, and that the cost and expenses of the litigation, as well on the part of the contestant as on the part of the executrix propounding said will for probate, be paid out of the estate of the deceased.

The appellant, who was the executrix named in the will, paid these costs and expenses out of her legacy and portion of the estate, and filed a bill in chancery against the contestant, Nathan Hoit, praying that he might be decreed to pay her out of his said devise, or otherwise, all the costs she had been compelled to pay by reason of the costs and expenses in contesting the caveat against the said will and testament. To this bill a general demurrer was filed by the defendant, and the demurrer, on hearing, was sustained, and the bill dismissed, with costs. From this decree, advised by the vice-chancellor, the present appeal was taken. The appellee having taken the benefit of the devise of land to him under the will of his father, there would seem to be no reason why he should not reimburse the appellant for the costs and expenses paid by her consequent on the entry on a caveat against the will by him contrary to its expressed condition, and with the consequence therein imposed. The intention of the testator is clearly expressed, that if either of his children, devisees under his will, contested, he shall pay all expenses incurred. There is no room for any other construction.

The only question is whether this is a legal condition or restriction in this case. Conditions in wills against disputing their validity, with the consequence of forfeiture of bequests, or devises therein, if broken, have often been considered in the courts, with attempts at artificial distinctions between legacies of personal property and of real estate, and whether there be probable cause for contesting the will,—probabilis causa litigandi,—and any gift over or not. It is said that conditions subsequent as to gifts of personalty are, in accordance with the rule of the civil law, held to be void in terrorem merely, if there be no gift over; but, if there be a gift over, the condition is good, such gift over being sufficient evidence that they were not meant to be in terrorem only. But it has been held, also, that this doctrine of the necessity of a gift over has never been applied to devises of real estate. Powell v. Morgan, 2 Vern. 90; Loyd v. Spillet, 3 P. Wms. 344; Morris v. Burroughs, 1 Atk. 404; Bradford v. Bradford, 19 Ohio St. 546; Chew's Appeal, 45 Pa. St. 228; Jarm. Wills, (Band. & T. Ed.) 582; 2 Williams, Ex'rs, par. 1146; 2 Redf. Wills, par. 298, § 34; Theob. Wills, 452-455.

It is not...