[1] The proceedings in this estate have been reviewed by this court on two former appeals. In re Estate of Cocklin, 230 Iowa 415,297 N.W. 864; In re Estate of Cocklin, 232 Iowa 266,5 N.W.2d 577. On the first appeal, it appeared *Page 100 that decedent had executed three wills, one in September 1939, one in December 1939, and the third on February 3, 1940. The contestant, Fanny Watkins, sought to secure a consolidation of proceedings to challenge at one time the validity of all three wills. Her motion was overruled and on appeal this court affirmed the order. The second appeal was taken after the trial of the contest of the will of February 3, 1940. The jury returned a verdict for proponent both as to the testamentary capacity of testator and the absence of undue influence. This court affirmed the judgment. The questions now presented to us relate to the will contest and the entire record therein was introduced in evidence herein.
The decedent was wealthy and left a large estate. He left a widow but no issue surviving. The beneficiaries here before us are two brothers and two sisters of decedent. The first article of the will provided for numerous specific bequests, Paragraph VII thereof bequeathing $2,000 to each surviving brother and sister. The second article created a trust, with the brothers and sisters named among the beneficiaries thereof. Paragraph I of the third article provided as follows:
"It is also my will and desire and I hereby direct that if any person entitled to any legacy, bequest or annuity under the terms of this will shall directly or indirectly contest or dispute the probate of this will or institute or become a party to institute any proceedings or act in the interest of any person who shall institute any proceedings, suit or action for the purpose of abrogating, setting aside, breaking or changing the effect of this will wholly or in part, then and in that event, all the legacies, bequests or annuities declared in favor of such person by this will or provided for herein, shall immediately thereupon be revoked, cease and determine and become wholly void and of no effect."
Following the affirmance by this court of the judgment which admitted the will to probate, the executor filed a petition which recited that the will had been contested, quoted Paragraph I of the third article, above set out, and asserted that Fanny Watkins, the sole named contestant, had forfeited all bequests, legacies, and annuities made for her under the will; *Page 101 that Winifred Cocklin, Guy Cocklin, and Evelyn Schuler, and each of them, directly and indirectly participated and joined in the contest of the will, became parties thereto directly and indirectly, and thereby caused all legacies, bequests, or annuities in their favor to be forfeited; that the executor had funds with which to pay the legacies provided for in Paragraph VII of the first article of the will but was unable to carry out said provisions because there had been no lawful determination of the rights of Fanny Watkins, Winifred Cocklin, Guy Cocklin, and Evelyn Schuler whether they were entitled to participate therein and the executor was in need of instructions from the court thereon. The prayer was that the court determine the rights of said four beneficiaries under the terms of the will as affected by said will contest and their participation therein.
Fanny Watkins filed a separate answer to said petition which, as amended, asserted four defenses thereto: (1) She had reasonable ground for contesting the will (2) the forfeiture clause (Paragraph I of the third article of the will) is inoperative because there is no gift over of a forfeited legacy or devise (3) the said forfeiture clause is inoperative because against public policy (4) the executor is not a proper person to maintain a forfeiture proceeding and the court has no jurisdiction thereof. Guy Cocklin, Winifred Cocklin, and Evelyn Schuler each filed separate answer to said petition, which, as amended, asserted the defenses asserted by Fanny Watkins and, in addition thereto, specifically denied that any of them had directly or indirectly joined or participated in the will contest.
The four defendants above named asked for separate trials as to the issues so joined between each of them and the executor. Separate trials were had as to each and separate judgments were entered as to each. The court determined that the forfeiture provision is valid and that the attack thereon is foreclosed by the case of Moran v. Moran, 144 Iowa 451, 123 N.W. 202, 30 L.R.A., N.S., 898; that the executor was not a proper person to maintain the proceedings; that the forfeiture clause is operative as against Fanny Watkins and Guy Cocklin but is not operative as against Winifred Cocklin and Evelyn Schuler. The petition of the executor was dismissed as to all four defendants. The executor *Page 102 appealed from all four judgments and the four defendants appealed from those determinations in each which affected them adversely. The eight appeals were ordered consolidated in this court by order of the chief justice pursuant to stipulation of counsel.
I. The first question for our determination is whether the court erred in holding that the executor was not a proper party to maintain the proceedings herein. We are of the opinion that error was committed.
The trial court gave the following reasons for its judgment:
"It is the opinion of the court that an Executor is not the proper party to do this. His interest is in dividing and distributing the estate according to the terms of the will. The enforcement of the forfeiture clause does not augment the estate, but merely changes the direction in which the property should go. It involves a decision which the Executor has no power to make. The Executor in this case sets up that he is bound to carry out the terms of the will, and after knowing that the will had been contested it was his duty to bring this action for the purpose of protecting himself, and knowing how he should distribute the property. The court believes that the Executor could institute an action, and by a proper notice prescribed by the court, bring into court those who would be interested in the enforcement of the forfeiture clause and require them to elect whether it should be enforced or not, and upon the failure of any person who was so interested, to make such election, that the Executor should then distribute the property of the estate according to the terms of the will, and could thus protect himself."
We are unable to agree with the foregoing pronouncement of the able trial court. It undertakes to confine the activities of the executor too strictly.
Section 11825, Code, 1939, provides:
"The court of the county in which a will is probated * * * shall have jurisdiction coextensive with the state in the settlement of the estate and the sale and distribution thereof."
In Anderson v. Meier, 227 Iowa 38, 42, 287 N.W. 250, 252, we stated: *Page 103
"Undoubtedly courts of equity in Iowa, contrary to the rule prevailing in many states, entertain suits for construction of wills where there is occasion therefor; but the present action concerns only the distribution of the property of decedents. This is a matter within the jurisdiction of the probate court, and is there pending, and a court of equity cannot intervene. The probate court has jurisdiction. Its right to administer and direct the disposition of the property involved cannot be interfered with." (Citing cases.)
In Citizens State Bk. v. Victoria Sanitorium, 179 Iowa 671,676, 161 N.W. 664, 666, we stated:
"Hollingsworth, as administrator with will annexed, not only representing the estate, but also charged with the duty of carrying out the terms of the will, and having in his charge all the personal effects of the deceased, had the right, as we think, when a question arose as to the interests of that estate * * * to make application to the court for directions as to how to proceed."
In 21 Am. Jur. 492, 493, section 214, it is stated:
"An executor or administrator may ask the probate court or a court of equity, depending upon the local practice as to where such jurisdiction is lodged, for the construction of a will or for instructions as to conduct with respect to various matters relating to the administration of the estate, such as future accounts. Moreover, where there is room for doubt as to their duties or as to the policy that should be pursued, the judge of the probate court should be consulted before any steps are taken that might seriously affect the funds of the estate. In a suit by a personal representative for advice, a considerable latitude may properly be allowed in giving scope to the questions propounded, where to do so places no unfair burden upon the parties and they have not been in any way misled as to the issues to be presented to the court."
The trial court recognized that the executor did not have the power to decide the question whether the legacies were forfeited, that such question could only be decided by the court. *Page 104 It also recognized that the executor could bring the parties into court for the purpose of having the question decided, but it was the court's opinion that the executor could merely institute proceedings and that ended his functions, that he could not maintain the proceedings. We cannot agree that he should be so circumscribed.
The situation is somewhat complicated by the fact that C.T. Cocklin, the executor, is one of the principal beneficiaries of the trust set up for the residue of the estate. He would personally profit as much as or more than anyone else if the legacies were forfeited. He attempted to intervene in his individual capacity but was denied that privilege. No appeal was taken from such ruling and the propriety thereof is not before us. However, in Packer v. Overton, 200 Iowa 620, 622,203 N.W. 307, 308, we stated:
"A preliminary question, not involving the merits of this case, is presented on motion of appellees to dismiss the appeal, which, in logical sequence of the propositions submitted, should be first determined. The motion is predicated on the ground that the administrator has no right to prosecute this appeal. We cannot agree with this contention. It is the duty of an executor or administrator to carry into effect the provisions of the will; and if, perchance, an erroneous order is made or an improper judgment entered with respect to the administration of the estate, it is his right to have the matter reviewed. In re Estate of Bagger, 78 Iowa 171. An executor or administrator acts in a representative capacity. By fiction of identity he is the person of the testator, and it is to him that all interested parties must look. He is charged with the duty of resisting unfounded claims, and to see to it that there is no improper diversion of funds or property in his hands. Briggs v. Walker, 171 U.S. 466 (43 L. Ed. 243). He represents all parties and all interests in the estate. Leighton v. Leighton, 193 Iowa 1299. For this reason he was made the party defendant in the instant case, and he is the only party who could appeal and preserve rights, if any, adversely affected by the judgment."
We hold that the proceedings instituted by the executor were within the jurisdiction of the probate court and that the *Page 105 court had jurisdiction to finally determine herein whether the legacies in fact and in law had been forfeited.
[2] II. This brings us to the question whether the forfeiture clause (Paragraph VII of the third article of the will) was inoperative for any of the reasons asserted. In holding that it was operative, the court relied upon our holding in Moran v. Moran, supra, 144 Iowa 451, 462, 463, 123 N.W. 202, 206, 30 L.R.A., N.S., 898, 902. The language relied upon sustains the court on all three propositions urged by Fanny Watkins herein. We there stated:
"In this country, however, we find no authority going to the extent of holding that a testator may not under any circumstances impose upon the acceptance of his bounty a valid condition against an attack upon his will by the legatee. Without taking time to cite the cases, it may be said that some courts incline to the view that such conditions are valid only in cases where the testator names some third person to receive the legacy in the event of a breach of the condition by the legatee first named. Others sustain all such conditions attached to devises of real estate, but hold there must be a gift over upon its breach in order to make valid a condition of the same kind attached to a bequest of personalty. A few courts have held the condition inoperative where the beneficiary has probable cause for the contest of the will, while still others reject all these distinctions as arbitrary, and hold the condition valid and enforceable in all cases, whether the gift be of realty or personalty, and without regard to the cause or ground of contest. The latter view appears to be the one now generally held, and to our minds is most in consonance with reason and sound principle. Bradford v. Bradford, 19 Ohio St. 546 (2 Am. Rep. 419); Thompson v. Gaut, 14 Lea (Tenn.) 310; In re Bratt, 10 Misc. Rep. 491 (32 N Y Supp. 168); Hoit v. Hoit, 42 N.J. Eq. 388 (7 A. 856, 59 Am. Rep. 43); Donegan v. Wade, 70 Ala. 501; Sackett v. Mallory, 1 Metc. (Mass.) 355."
Counsel for the legatees herein concede that the foregoing pronouncements are squarely against their contentions. They ask us to modify and overrule the majority opinion in Moran v. *Page 106 Moran to the extent necessary to make the position of this court that taken by Judge Evans in his dissenting opinion, wherein he stated, at pages 469 to 473 of 144 Iowa, page 208 of 123 N.W., 30 L.R.A., N.S., 905, as follows: