Donegan v. Wade , 70 Ala. 501 ( 1881 )

SOMEBYILLE, J.

The construction placed by the referee upon th§ will of David Wade was clearly correct. The 12th item of this instrument, which gives rise to this suit', is as folfows: “It is my will, that if any one of my children shall resist the probate of my will, or petition to breah or set it aside, such child or children shall not have any part of my estate whatever, and the portion intended for such child shall be distributed among those of my children mentioned in item No. 8 who shall not oppose my will, in the same way that the balance of my estate is therein directed to be distributed; the child or children opposing my will being excluded from any participation therein.”

The question here presented is, whether the conduct of David Wade, Jr., constituted such resistance, or opposition to his father’s will, as to work a forfeiture of his interest as devisee under the provisions of the above item. The testator possessed the right of disposing of his property as he saw fit, so long as he violated no law or established’ principle of sound public policy. He could bestow or withhold benefactions, as an attribute of the yus disppnendi, without regard to considerations of justice, or of caprice. So, he could make such dispositions on conditions precedent or subsequent, not illegal. He chose to attach a ground of forfeiture, which would divest the interest of any one of his children who might seek to resist or oppose his will. It is not denied that this is a legal or valid condition, when attached to a legacy or devise. Its purpose, too, is clear. It was designed to prevent the inauguration or prosecution of a suit or contest in the courts, commenced with the view of de7 feating the will of the testator as he had seen fit to make it. Such contests often breed irreconcilable family feuds, and lead to disgraceful family exposures. They not unfrequently, too, waste away vast estates, by protracted and extravagant litigation.

It is insisted by appellant’s counsel, that, inasmuch as David Wade, Jr., has never contested the will of the testator in his own name, the forfeiture declared by the twelfth item can not be enforced against him, or against the appellant, who is his privy in estate. It can not be denied (if we waive, for the present, all exceptions to evidence), that he aided and abetted his sister in the inauguration and prosecution of such a contest; that she opposed the will, so far as to file objections to its probate, and took all the initiatory steps preparatory to a trial of the issues on their merits; and that he was even bearing the expenses of the litigation, and advising in its management.

But it is argued, that there was strictly no contest by Mrs. Turner, the sister, because it was never brought to a trial, by reason of its abandonment, and that David Wade, Jr., can not be said to. have resisted or opposed the will, within the meaning of the testator, because he never apjieared upon the records of the court as such contestant. We do not think this argument is sound. The steps taken by Mrs. Turner constituted opposi-' tion to that unlitigated probate or establishment of her father’s ! will, which it was his great care to secure. And the participation of David Wade, Jr., in such contest, was of the same character, however deficient in the candor of open resistance. To relieve him under such circumstances, and, at the same time, to visit her with the penalty of a forfeiture, would be, in effect, to permit the law to place a premium on artifice, and to suffer the just reproach of seeking after the shadow instead of the substance. We see here the very fullest scope for the operation of the principle, Quifaciiper alium, faoit per se.

The court below erred, however, we think, in allowing evidence which was merely secondary to be introduced, of such contest. The statute requires that, in contesting the validity of wills, the grounds of contestation must be alleged in writing. Code of 1876, § 2317. The evidence shows that this was done; and a copy of the record should have been produced, or its loss accounted for, so as to authorize secondary evidence of its contents. The testimony of the probate judge fails to show that any search has been made for the missing paper. It is true that he certifies to the fact", that the transcript contains “ a full, true and perfect copy of all the proceedings,” in the matter of the probate of the will, “so far as they appear of record!” in the Probate Court. This general statement is not sufficient. The Probate Court was the proper place of deposit for the paper; and the first presumption would be, .that it was there, unless shown to be elsewhere; and it would be sufficient, probably, to show a proper search in such office. The negative averment of the fact, derived b)7 implication from the statement of the correctness of the record, is not sufficient. It does not satisfy the requirements of the law, which exacts suca search as to establish a reasonable presumption of the loss of the document or paper.—1 Greenl. Ev. § 558. It must be by one having access to the probable or known place of deposit, and ought, in general, to be recent.—1 Whart. Ev. § 147; Preslar v. Stallworth, 37 Ala. 402; Calhoun v. Thompson, 56 Ala. 166.

For this error, the decree .of the Chancery Court must be reversed, and the cause remanded.

Briokell, C. J., not sitting.*