Division II of the majority opinion overrules Moran v. Moran,144 Iowa 451, 123 N.W. 202, 30 L.R.A., N.S., 898. As to this part of the opinion I am compelled to disagree and therefore dissent from the majority opinion.
The decision announced in the Moran case has been the established rule in this state since 1909 and should not be overruled unless we find that the principles of law on which it is based are unsound. So far as precedent is concerned, there is almost an equal division of the courts, some holding that a condition of the will such as we have here is valid, some holding it to be entirely invalid, some coupling it with other conditions such as a gift over, and other courts holding the condition inoperative where the beneficiary brings the contest in good faith. The rule which we adopt among these conflicting theories should be one based upon principle.
It is my own opinion that the cases which sustain the validity of a provision forbidding contest are in consonance with general principles and the general and undisputed rules of the law relating to wills. It is a fundamental rule governing all wills that a testator may control the disposition of his own estate. His freedom to elect the recipients of his bounty and reject others who might claim to be entitled to any part of his estate is unquestioned. The only valid reason for the interference of the court in the disposition of a testator's property by will is where such disposition runs counter to public policy. No one can deny this proposition. It follows, therefore, that the testator should have a right to guard such disposition of his property by any means or any condition not contrary to public policy. The question resolves itself into whether or not this no-contest clause is of such a nature that its enforcement will offend public policy. It is in line with other rules of common application. It *Page 115 is well established that a devisee or legatee cannot accept a part of a devise or bequest which is favorable to him and reject another part which is unfavorable. He must take the devise burdened with the condition imposed by the will or not take it at all. It is so expressly stated in the Moran opinion, at page 463 of 144 Iowa, page 206 of 123 N.W., 30 L.R.A., N.S., 903, where Justice Weaver says:
"The donee is under no compulsion to accept the gift. He is free to elect. The question he has to decide is the ordinary one which arises in nearly every business transaction — whether the thing offered him is worth the price demanded. The owner of property may give or refrain from giving. He may attach to his offer such lawful conditions as his reason, caprice, or malice may dictate, but he is dealing with his own, and the donee, who claims the benefit of the gift, must take it, if at all, upon the terms offered." Citing Rogers v. Law, 66 U.S. 253, 17 L. Ed. 58.
The same thought is expressed in Elberts v. Elberts, 159 Iowa 332,337, 141 N.W. 57, 59:
"The plaintiff in this suit, having taken under the will and basing all his rights on the provisions of the will, is bound by every provision thereof."
In our recent case of Brown v. Kalene, 230 Iowa 76, 79,296 N.W. 809, 810, it is said:
"The appellees could not have the benefit of the property devised to them except under the conditions imposed by the will. They could not accept a part of the bequest or devise most favorable to them and refuse to accept the unfavorable condition."
If a devise or bequest, when accepted, must be accepted with the conditions attached, then how does the rule differ in principle from that announced in the Moran case, that a contesting devisee or legatee must forfeit his rights under the will? The question of public policy is thoroughly discussed in the Moran case at page 463 of 144 Iowa, page 206 of 123 N.W. *Page 116
In Justice Evans' dissent to the Moran case he cites extreme cases. This can be done under almost any legal proposition. Conditions and circumstances can be imagined under which the application of nearly any rule of law may lead to an absurdity. The dissenting opinion, for instance, suggests the extremely unlikely case of the purported will containing a provision forbidding that it be presented for probate and that it be deemed the genuine will of decedent without probate or other proceedings. So, in the majority opinion here is cited the case of Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A., N.S., 1160, Ann. Cas. 1913E, 1296, referring to a forged will. The case is not convincing. We know of no rule which could guard against forgery, nor do we know of any rule which could guard against a contest supported by perjury. No set of rules, however elaborate, could eliminate the possibility of criminal practices in the preparation of any instrument. Any rule might be carried to an extent which would result in injustice under some imaginary state of facts.
To maintain the position the majority opinion takes is to assume that the contestant will fail in his attempt to defeat the will. This, of course, is not necessarily true. If the will is fraudulent, is forged, or is not the true will of the testator, and this is demonstrated in court, then the contestant would prevail; the will would be a nullity and of no effect. The only means he would have of establishing such a fact would be by action in court. If a contestant lacks the proper proof he should and would fail, as he should and would fail in any other action he might bring if it were entered into with insufficient evidence to support the plaintiff's cause. In the event of' a true contest, entered into on good grounds and supported by sufficient testimony, it may be assumed that the courts will correctly decide. But every lawyer knows that there are useless and unnecessary contests brought against wills, with little or no ground therefor, and that sometimes these contests are brought for the purpose of compelling a settlement to which the contestant is not entitled. It is in preventing such contests that the enforcement of a no-contest provision in a will is of most value. Of course, any litigation must fail where evidence is lacking, and properly so, but a litigant need not be deterred from challenging a will which *Page 117 manifestly, through forgery or otherwise, is not the will of the testator, and his counsel will so advise him.
I do not think we should disturb the doctrine announced by the majority in the Moran case. Such has been the established rule in this state for thirty-five years. Clients have been advised, and wills have been drawn, by lawyers who have relied upon the decision as a part of our established probate law; property interests have been settled and cases determined upon its authority. Useless and unwarranted litigation has been prevented by the fact that wills have contained this type of provision. Of course, a rule not well founded should not be followed merely on account of its age; also, no one can contend that there must not be changes from time to time, as general conditions change, or as public interests require. Yet neither of such reasons exists here. No public interests are affected; no change of conditions in relation to wills has arisen, nor is such change likely to arise. We cannot even say that the courts generally have taken a contrary view to such an extent as to persuade us to re-examine the question. I see no reason for departing from the position taken in the Moran case.
To throw aside our own established principle, supported by respectable authority, tends to affect the value of precedent, when it is the desire and duty of all of us to render legal principles and decisions more fixed, stable, and certain. I see no necessity, either in logic or precedent, for departing from a rule which is so clearly the established law of this state. I would affirm the decision of the district court as to Division II.
*Page 118BLISS and WENNERSTRUM, JJ., join in this dissent.