Rudd v. Searles

• Decision Date: 03 March 1928
• Citation: Rudd v. Searles, 262 Mass. 490, 160 N.E. 882 (Mass. 1928)
• Parties: RUDD v. SEARLES et al.
• Court: Supreme Judicial Court of Massachusetts

262 Mass. 490

160 N.E. 882

RUDD

v.SEARLES et al.

Supreme Judicial Court of Massachusetts, Essex.

March 3, 1928.

Petition by Elgin E. Rudd, administrator of the estate of Edward F. Searles, deceased, for instructions as to payment of a legacy, opposed by Victor A. Searles and others. Affirmed.

James J. Ronan, of Salem, and R. A. B. Cook, of Boston, for Whipple and others.

C. F. Choate, Jr., and Malcolm Donald, both of Boston, for defendants Regents of the University of California.

RUGG, C. J.

By clause fourth of the will of Edward F. Searles, a legacy of $250,000 was given to Victor A. Searles. In clause twenty-first of the will were these words:

‘All legacies * * * contained in this will * * * are given upon the express condition that the respective legatees * * * shall not oppose the probate of this will * * * and if any such legatee * * * shall oppose the probate of this will, * * * then, and in that event, I revoke and annul all legacies * * * hereby given to such person * * * and I do give * * * the legacy * * * hereby given to such person, and this revoke, unto the Regents of The University of California. * * *’

Victor A. Searles, who was also the heir at law of the testator, confessedly opposed the probate of the will. As a consequence of his opposition, a settlement was made between him and the residuary legatee and devisee under the will, whereby the latter, out of the benefactions accruing to him under the will, paid a sum in excess of $4,000,000 to the opposing legatee, the opposition was withdrawn and the will was admitted to probate. An agreement in writing was made between these two, to which those named as executors in the will were not parties, whereby, among numerous other matters including a withdrawal of all objections to the probate of the will, it was stipulated ‘that nothing herein contained shall be construed as a release’ by the opposing legatee ‘of such right if any as he may possess to receive the legacy of two hundred and fifty thousand (250,000) dollars bequeathed to him by the fourth article of said will.’ Claim to this legacy is made by such opposing legatee and by the regents of the University of California. The executors of the will bring this petition for instructions to whom to pay this legacy.

A decisive question presented is whether clause twenty-first of the will, to the effect that the legacy to any legatee opposing the probate of the will shall be revoked and annulled and given over to another, is valid. That question has never arisen for decision in this court.

The will before the court in Parsons v. Winslow, 6 Mass. 169, 4 Am. Dec. 107, contained a legacy in trust for the benefit of the widow of the testator during her life on condition of being void in the event of her marrying. It there was said at page 178:

‘When the condition is subsequent, as this is, and the legacy is not given over, it is considered merely in terrorem, and the condition is void, because it puts a restraint upon matrimony, which ought not to be discouraged. But if the legacy be given over, the limitation may take effect.’

As to restraint upon remarriage by a widow, that decision is no longer the law. Knight v. Mahoney, 152 Mass. 523, 525, 25 N. E. 971,9 L. R. A. 573. Notwithstanding its strong intimation as to the validity of a testamentary provision like the present, we do not rest our decision upon it. In Sackett v. Mallory, 1 Metc. 355, a devise was made to two sons of the testator, but upon condition that no claim should be made by either upon the estate of the testator. One of the sons made a claim upon the estate of the testator, which was recognized as valid and paid by the executors. It was held that thereby the bequest to that son was forfeited by this breach of condition. This case, although approaching somewhat to the question here presented, is not decisive. The doctrine of election in principle comes close to the case at bar. That doctrine prevails in this commonwealth. It is in substance that, if one takes a beneficial interest under a will, he thereby shall be held to confirm and ratify every other part of the will; he cannot accept a benefit under any document without conforming to all its provisions and renouncing every right or claim inconsistent with them; he cannot accept in part and reject in part the terms of the same instrument. Noyes v. Noyes, 233 Mass. 55, 58, 59, 123 N. E. 395, and cases there collected and reviewed. That doctrine, although throwing light upon the facts here revealed, is not strictly controlling. The question to be decided is treated on its own merits.

By G. L. c. 191, § 1, ‘Every person of full age and sound mind may by his last will in writing,’ signed and attested as there specified, ‘dispose of his property, real and personal’ with certain exceptions. Those exceptions relate to rights of the husband and of the wife, of unmentioned and of posthumous children, to homestead estates, and to estates tail, no one of which is material to the present issue. This statute is plain and unequivocal. In it there are no words or phrases of a technical or peculiar legal signification. Construed according to the common and approved usage of the language, there is nothing obscure or uncertain in its terms. This power of testamentary disposition, so far as concerns the case at bar, is unrestricted, unlimited, and subject to no conditions expressed by the words of the statute or implied from its terms. Therefore, the question for decision is narrowed to the point whether an exception to the broad sweep of the statute of wills is to be engrafted upon it by judicial decision in instances where a legacy or devise is given upon condition that the beneficiary shall not oppose the probate of the will, on the ground that such a provision is contrary to any rule of law or to public policy.

No rule of positive law has been suggested in argument, and we are not aware of any, which forbids the clause here in issue. There is a clear gift over in the event that the legacy is forfeited by opposition to the probate of the will. The contention put forward is that a teatamentary clause of this nature is contrary to public policy in those instances where the beneficiary had probable cause for contesting the will. This contention requires careful consideration. We examine the authorities first. The question arose in Cooke v. Turner, 14 Sim. 493; s. c. 15 M. & W. 727. In holding valid a testamentary provision revoking a benefaction to a daughter in the event of contest of the will by her, the court said:

‘There is no doubt that, by disputing the will and refusing to confirm it when requires so to do, she has brought herself, both in letter and in spirit within the proviso by which her interest is made determinable; so that her interest in the whole, is clearly forfeited, unless the proviso itself is void; and, accordingly, the argument on her behalf, was that the proviso is bad, as being contrary to the policy of the law. The ground on which the argument against the proviso was made to rest, was that every heir at law ought to be left at liberty to contest the validity of his ancestor's will; and that any restraint, artificially introduced, might tend to set up the wills of insane persons, and would be, in the language of Shep. Touchst. p. 132, against the liberty of law. We cannot however adopt this reasoning. * * * The conditions said to be void as trenching on the liberty of law, are those which restrain a party from doing some act which, it is supposed, the state has or may have an interest to have done. The state, for obvious reasons, has an interest that its subjects should marry, and therefore will not, in general, allow parties, by contracts or conditions in a will, to make the continuance of an estate depend on the owner not doing that which it either is or may be the interest of the state that he should do. So the state is interested in having its subjects embarked in trade and agriculture; and, therefore, the law will not give effect to a condition defeating an estate, in case its owner shall engage in commerce, or sow his arable land, or the like. The principle on which such conditions are void, is analogous to that on which conditions defeating an estate, unless the owner commits a crime, are void. In the latter case, the condition has a tendency to induce the violation of a positive duty; in the former, to prevent the performance of what partakes of the character of imperfect obligation. But, in the case of a condition such as that before us, the state has no interest whatever apart from the interest of the parties themselves. There is no duty, either perfect or imperfect, on the part of an heir, to contest his ancestor's sanity. It matters not to the state whether the land is enjoyed by the heir or by the devisee; and we conceived therefore, that the law leaves parties to make just what contracts and engagements they may think expedient, as to raising or not raising questions of law or of fact among themselves, the sole result of which is to give the enjoyment of the property to one claimant rather than to another.’

All the earlier English decisions, including Powell v. Morgan, 2 Vern. 90, and Morris v. Burroughs, 1 Atk. 398, sometimes thought to support the oppositeview, were called to the attention of the court, and it must be presumed that they were considered. Other English cases supporting this doctrine are Cleaver v. Spurling, 2 P. Wms. 526, and Stevenson v. Abington, 11 Wkly. Rep. 935. See, also, Lloyd v. Branton, 3 Meriv. 108. The cases of Powell v. Morgan, 2 Vern. 90, and Morris v. Burroughs, 1 Atk. 398, are imperfectly reported, but in each case apparently there was no gift over in case of forfeiture, a point often emphasized in England as decisive. We do not regard Loyd v. Spillet, 3 P. Wms. 344; Rhodes v. Muswell Hill Land Co., 29 Beav. 560; Warbrick v. Varley, 30 Beav. 347; Adams v. Adams, 45 Ch. D. 426, s. c. on appeal [1892] 1 Ch. 369,...