In re Friend's Estate

• Citation: 209 Pa. 442,58 A. 853
• Parties: In re FRIEND'S ESTATE.
• Decision Date: 15 June 1904
• Court: United States State Supreme Court of Pennsylvania

58 A. 853
209 Pa. 442

In re FRIEND'S ESTATE.

Supreme Court of Pennsylvania.

June 15, 1904.

In the matter of the estate of Rebecca Jane Friend. From a decree dismissing exceptions to adjudication, James W. Friend and Harry T. Friend appeal. Affirmed.

Argued before MITCHELL, C. J., and DEAN, BROWN, MESTREZAT, and THOMPSON, JJ.

J. S. Ferguson, E. G. Ferguson, and Reed, Smith, Shaw & Beal, for appellants.

H. K. Siebeneck, for appellee P. C. Friend.

BROWN, J. By the second clause of her will the testatrix gave to the Fidelity Title & Trust Company, of Pittsburg, the sum of $20,000, to be held in trust for her son Porter C. Friend. She had two other sons, James W. and Henry T. The sixth clause of her will is: "If any of my children or grandchildren, or any of the cestuis que trust under this will, shall contest the validity of this my will, or attempt to vacate the same, or alter or change any of the provisions thereof, he or she, or they, shall be thereby deprived of any beneficial interest under this will and of any share of my estate, and the share, or shares, of such person or persons, shall be divided equally between my said sons.

58 A. 854

James W. Friend and Harry T. Friend, discharged from any trust." Porter C. Friend appealed from the decree of the register of wills admitting his mother's will to probate, and petitioned the orphans' court of Allegheny county for an issue devisavit vel non, on the ground that his brother James W. had procured the execution of it by undue influence. This petition was dismissed by that court, and on appeal to us its decree was affirmed Friend's Estate, 198 Pa. 303, 47 Atl. 1106. The appellants thereupon insisted that their brother, in view of the clause referred to in their mother's will, was not entitled to what she had left him, and now ask that the $20,000, with the accrued interest, be awarded to them. Their contention was not sustained by the court below, which, in an opinion by its learned president judge, held that, as Porter C, the son, had probable cause for instituting the proceedings to contest the will, he had not forfeited the interest which his mother gave him in her estate.

It is not to be questioned that it was competent for the testatrix, possessing the absolute power to dispose of what she possessed just as she pleased, to impose the condition upon which the appellants rely in asking that their brother shall be deprived of all interest in her estate; and it is equally clear, in view of his attempt to annul her will, that the burden is upon him to show that he now ought to have what it gives him. Such conditions to testamentary gifts and devises are universally recognized as valid, and, by some courts, enforceable without exception. The better rule, however, seems to us to be that the penalty of forfeiture of the gift or devise ought not to be imposed when it clearly appears that the contest to have the will set aside was justified under the circumstances, and was not the mere vexatious act of a disappointed child or next of kin. A different rule—an unbending one—that in no case shall an unsuccessful contestant of a will escape the penalty of forfeiture of the interest given him, would sometimes not only work manifest injustice, but accomplish results that no rational testator would ever contemplate. This is manifest from a moment's reflection, and is illustrated by the class of cases to which the one now before us belongs, in which there is an allegation of undue influence which procured the execution of the will. If, as a matter of fact, undue influence is successfully exerted over one about to execute a will, that same influence will have written into it a clause which will make sure its disposition of the alleged testator's property. He who will take advantage of his power to unduly influence another in the execution of a will will artfully have a care to have inserted in it a clause to shut off all inquiry as to the influence which really made the will; and, if the rule invoked by the appellants is to be applied with no case excepted from it, those who unscrupulously play upon the feelings of the testator may, with impunity, enjoy the fruits of their in iquity, and laugh in scorn at those whom they have wronged. If the condition of forfeiture is to be enforced in every case, those who improperly influence a testator may boast to a child against whom he discriminated of the power they exerted...