RYAN
v.
WACHOVIA BANK & TRUST CO. (High Point Branch).
No. 670.
Supreme Court of North Carolina.
May 21, 1952.*854 Crissman & Bencini and Roberson, Haworth & Reese, all of High Point, for defendant, appellant.
Frazier & Frazier, Greensboro, for plaintiff, appellee.
DENNY, Justice.
Two questions are presented for consideration and determination. (1) Was the trial judge justified in finding as a fact that the plaintiff had probable cause for caveating her father's will and that in so doing she acted in good faith? (2) Does the finding that a caveator acted in good faith and with probable cause in caveating a will, entitle such caveator to take a legacy thereunder where the instrument contains a no-contest or forfeiture clause?
The first question must be resolved in favor of the plaintiff. Findings of fact by the trial judge, when authorized by law or consent of the parties, are as conclusive as when found by a jury, if there is any competent evidence to support them. There is evidence to support the finding of probable cause and good faith. Hence, such finding is binding on us. Matthews v. Fry, 143 N.C. 384, 55 S.E. 787; Caldwell County v. George, 176 N.C. 602, 97 S.E. 507; Eggers v. Stansbury, 177 N.C. 85, 97 S.E. 619; Tyer v. J. B. Blades Lumber Co., 188 N.C. 268, 124 S.E. 305; Tinker v. Rice Motors, Inc., 198 N.C. 73, 150 S.E. 701; Blades Lumber Co. v. Finance Co., 204 N.C. 285, 168 S.E. 219; Peoples Bank & Trust Co. v. Tar River Lumber Co., 221 N.C. 89, 19 S.E.2d 138; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Radio Station v. Eitel-McCullough, 232 N.C. 287, 59 S.E.2d 779.
The second question has not been decided in this jurisdiction unless we consider what was said by way of dictum in Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582, 584, as binding on us. In that case, the will involved contained a nocontest or forfeiture clause. A caveat was filed and upon the issue of devisavit vel non, raised thereby, the will was sustained. The court found as a fact that the caveat *855 was filed without probable cause and that, therefore, all the interests of the caveators in the land devised were forfeited under the forfeiture clause in the testator's will. Stacy, C. J., in speaking for the Court, said: "* * * by the clear weight of authority, both in England and in this country, a condition of forfeiture, if the devisee shall dispute the will, is valid in law. Cooke v. Turner, 15 M. & W. (Eng.) 735; Perry v. Rogers, 52 Tex. Civ. App. 594, 114 S.W. 897; Donegan v. Wade, 70 Ala. 501; Hoit v. Hoit, 42 N.J.Eq. 388, 7 A. 856; Thompson v. Gaut, [82] Tenn. [310] 314; 28 R.C.L., 315, and cases there cited.
"It is further held that, where there exists probalis causa litigandi, that is, a probable or plausible ground for the litigation, a condition in a will that a legatee shall forfeit his legacy by contesting the will is not binding, and under such circumstances a contest does not work a forfeiture. Morris v. Burroughs, 1 Atk. (Eng.) 399; Powell v. Morgan, 2 Vern. (Eng.) 90; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Smithsonian Institution v. Meech, 169 U.S. 398, 18 S. Ct. 396, 42 L. Ed. 793. But here it is found as a fact that no probable cause existed for the filing of the caveat."
In a number of jurisdictions it has been held that a clause in a will providing for forfeiture of the interest of any beneficiary contesting the instrument or its provisions, is valid and enforceable, even though such contest might have been instituted in good faith and with probable cause. In re Kitchen, 192 Cal. 384, 220 P. 301, 30 A.L.R. 1008; Rudd v. Searles, 262 Mass. 490, 160 N.E. 882, 58 A.L.R. 1548; Schiffer v. Brenton, 247 Mich. 512, 226 N.W. 253; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; Bender v. Bateman, 33 Ohio App. 66, 168 N.E. 574; Barry v. American Security & T. Co., 77 U.S.App.D.C. 351, 135 F.2d 470, 146 A.L.R. 1204.
It seems, however, that the weight of authority in this country supports the view that a no-contest or forfeiture clause in a will is subject to the exception that where the contest or other opposition of the beneficiary is made in good faith and with probable cause, such clause is not binding and a forfeiture will not result under such circumstances. South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann. Cas.1918E, 1090; In re Cocklin's Estate, 236 Iowa 98, 17 N.W.2d 129, 157 A.L.R. 584; In re Kathan's Will, Sur., 141 N.Y.S. 705; Wadsworth v. Brigham, 125 Or. 428, 259 P. 299, 266 P. 875; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A.,N.S., 1160, Ann.Cas.1913E, 1296; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; Calvery v. Calvery, 122 Tex. 204, 55 S.W.2d 527; In re Chappell's Estate, 127 Wash. 638, 221 P. 336; Dutterer v. Logan, 103 W.Va. 216, 137 S.E. 1, 52 A.L.R. 83; In re Keenan's Will, 188 Wis. 163, 205 N.W. 1001, 42 A.L.R. 836. In our opinion, these authorities give sound and logical reasons for the adoption of the probable cause rule.
In the case of South Norwalk Trust Co. v. St. John, supra [92 Conn. 168, 101 A. 963], the Court said: "The law prescribes who may make a will and how it shall be made; that it must be executed in a named mode, by a person having testamentary capacity and acting freely, and not under undue influence. The law is vitally interested in having property transmitted by will under these conditions, and none others. Courts cannot know whether a will, good on its face, was made in conformity to statutory requirements, whether the testator was of sound mind, and whether the will was the product of undue influence, unless these matters are presented in court * * *. Courts exist to ascertain the truth and to apply it to a given situation, and a right of devolution which enables a testator to shut the door of truth and prevent the observance of the law is a mistaken public policy * * *. Where the contest has not been made in good faith, and upon probable cause and reasonable justification, the forfeiture should be given full operative effect. Where the contrary appears, the legatee ought not to forfeit his legacy. He has been engaged in helping the court to ascertain whether the instrument purporting to be the will of the testator is such * * *. The effect of broadly interpreting a forfeiture clause as barring all contests *856 on penalty of forfeiture, whether made on probable cause or not, will furnish those who would profit by a will procured by undue influence, or made by one lacking testamentary capacity, with a helpful cover for their wrongful designs."
In In re Kathan's Will, supra [141 N.Y.S. 710.], the Court said: "We must remember that the statute of wills is a part of the public law, and a condition that an heir shall not be permitted to show testator's want of testamentary capacity or his other noncompliance with the statute of the state without forfeiting the legacy is * * * contrary to public order and policy * * *."
In the case of Rouse v. Branch, supra (91 S.C. 111, 74 S.E. 135.], the Supreme Court of South Carolina said: "No case has been cited, and we do not believe any can be found, sustaining the proposition that a devisee or legatee shall not have the right, upon probable cause, to show that a will is a forgery, without incurring the penalty of forfeiting the estate given to him by the will. The right of a contestant to institute judicial proceedings upon probable cause to ascertain whether the will was ever executed by the apparent testator is founded upon justice and morality. If a devisee should accept the fruits of the crime of forgery under the belief, and upon probable cause, that it was a forgery, he would thereby become morally a particeps criminis, and yet, if he is unwilling to commit this moral crime, he is confronted with the alternative of doing so, or of taking the risk of losing all under the will, in case it should be found not to be a forgery. Public policy forbids that he should be tempted in such a manner."
The Supreme Court of Iowa, in overruling the case of Moran v. Moran, 144 Iowa 451, 123 N.W. 202, 30 L.R.A.,N.S., 898, in the case of In re Cocklin, supra [236 Iowa 98, 17 N.W.2d 135.], quoted with approval the above statement from the Supreme Court of South Carolina, and then stated: "By the same token, if a will was executed as the result of fraud, would not a legatee, who knew of the fraud but stood silently by fearing to risk loss of his legacy and accepted the fruits of the fraud, be morally a party to it? Also, a will executed by an incompetent is legally no more his will than if it were forged and a will secured by undue influence is as repugnant to the law as one secured by fraud. Public policy forbids that one should be tempted to let such wills prevail. The administration of justice should not be frustrated in such a manner."
In Calvery v. Calvery, supra [122 Tex. 204, 55 S.W.2d 530.], the Court said: "The great weight of authority sustains the rule that a forfeiture of rights under the terms of a will will not be enforced where the contest of the will was made in good faith and upon probable cause", citing Whitehurst v. Gotwalt, supra, and numerous other decisions.
Those authorities that hold that a clause in a will providing for the forfeiture of the interest of a beneficiary contesting the instrument or its provisions, is valid and enforceable, even though such contest might have been instituted in good faith and with probable cause, adhere to the idea that a failure to enforce the forfeiture would result in thwarting the intention of the testator and would tend to encourage litigation in families. But, if a will has been procured by undue influence or fraud, there is no intent of the purported testator to thwart, sustain, or defeat. Tate v. Camp, supra.
In our opinion, a bona fide inquiry whether a will was procured through fraud or undue influence, should not be stifled by any prohibition contained in the instrument itself. In fact, our courts should be as accessible for those who in good faith and upon probable cause seek to have the genuineness of a purported will determined, as they are to those who seek to `find out the intent of a testator in a will whose genuineness is not questioned.
Forfeiture clauses are usually included in wills to prevent vexatious litigation, but we should not permit such provisions to oust the supervisory power of the courts over such conditions and to control them within their legitimate sphere. Friend's Estate, supra.
*857 There is a very great difference between vexatious litigation instituted by a disappointed heir, next of kin, legatee or devisee, without probable cause, and litigation instituted in good faith and with probable cause, which leads the contestant to believe that a purported will is not in fact the will of the purported testator. We think it is better to rely upon our trial courts to ascertain the facts in this respect.
We, therefore, adhere and follow the rule laid down by way of dictum in Whitehurst v. Gotwalt, supra, not under the doctrine of stare decisis, but by reason of its soundness.
The judgment of the court below is affirmed.