specially presiding,
John C. McMillin, aged 84 years, died August 22,1956. By item 2 of his will, dated September 25, 1954, he bequeathed $9,000 to his three sisters, Ellen McMillin, Matilda McMillin Miller and Martha. McMillin Mc-Clurg, in equal shares, providing that should any of them die in his lifetime then their share would be taken by the survivor or survivors. By item 3 he be
Item 10 of decedent’s will contains an in terrorem or a provision against contest clause and reads as follows:
“Provided always, and I do hereby declare my Will to be, that if any person or persons to whom any estate or interest is given or limited by this my Will shall, in any court of law or equity, or otherwise, controvert the same, or dispute or call in question the validity hereof, or of any of the estates, limitations, powers, provisos, or dispositions hereby limited or given, or made, or herein contained, then and in such case the estates, interests, limitations, so hereby limited, to or in favor of such person or persons so controverting my said Will, shall cease, determine, and be absolutely void to all intents and purposes whatsoever, as if such person or persons was or were naturally dead. And then and from thenceforth such estates, interests, limitations, powers, provisos and dispositions shall go and belong to and be vested in the residuary beneficiary; provided he, she, or they shall not controvert or dispute the validity of this my Will, or any of the devises, limitations, powers, provisos, or dispositions herein contained or hereby made.”
Decedent’s will was probated and letters testamentary were granted thereon by the register of wills of Lawrence County on September 4, 1956, said will being registered in Will Book vol. 32, p. 46.
Proceedings on this appeal are still pending, no hearing having been had thereon.
The matter is now before the court on the petition, filed February 3,1958, of all of said parties who appeal from the probate of the will to show cause why they should not be permitted to withdraw their appeal from the probate of said will without prejudice to their rights as legatees to participate in the estate of decedent, notwithstanding the provision in said will providing for forfeiture of legacies.
To said last mentioned petition an answer has been filed by Helen Cwynar (Tommelleo), the residuary devisee and legatee, agreeing that the appeal from probate should be dismissed but contending that it should not be dismissed without prejudice and asserting said Helen Cwynar (Tommelleo’s) right to contest petitioners’ rights to share as legatees should be determined upon final distribution of the estate.
Section 2, 12 PS §832, of that act provides, in part, as follows: “Any person interested under a . . . will . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.”
In Lifter Estate, 377 Pa. 227, 228, the Supreme Court, speaking through Mr. Justice Bell, reiterated the rule that “whether or not a court will take jurisdiction of a petition for a declaratory judgment or decree is purely a matter of judicial discretion . . . ‘the vital factor in the assumption of jurisdiction is the presence of antagonistic claims indicating imminent and inevitable litigation, coupled with a clear manifestation that the declaration sought will be a practical help in ending the controversy. . . .’ ”
The instant case indicates that these factors are present. In addition thereto, a determination under the provisions of the Uniform Declaratory Judgments Act would no doubt save the parties the expense of later extended litigation. We have, therefore, determined to consider the petition as if filed under the provisions of that act, the interested parties being all represented and presently before the court.
From the pleadings, statements of counsel, exceptions and record now before this court it appears that decedent, bom January 18,1872, died August 22,1956, at an age of upwards of 84 years, having made his last will and testament, dated September 25, 1954. Prior to his death, on February 16, 1955, in a pro
From the earliest days of this Commonwealth it has been held that contest or opposition to a will or its
“Such conditions to testamentary gifts and devises are universally recognized as valid, and, by some courts, enforcible without exception. The better rule, however, seems to us to be that the penalty of forfeiture of the gift or devise ought not to be imposed when it clearly appears that the contest to have the will set aside was justified under the circumstances, and was not the mere vexatious act of a disappointed child or next of kin. A different rule — an unbending one — that in no case shall an unsuccessful contestant of a will escape the penalty of forfeiture of the interest given him, would sometimes not only work manifest injustice, but accomplish results that no rational testator would ever contemplate. This is manifest from a moment’s reflection and is illustrated by the class of cases to which the one now before us belongs, in which there is an allegation of undue influence which procured the execution of the will. If, as a matter of fact, undue influence is successfully exerted over one about to execute a will, that same influence will have written into it a clause which will make sure its disposition of the alleged testator’s property. He who will take advantage of his power to unduly influence another in the execution of a will will artfully have a care to have inserted in it a clause to shut off all inquiry as to the influencePage 795which really made the will; and, if the rule invoked by the appellants is to be applied with no case excepted from it, those who unscrupulously play upon the feelings of the testator may, with impunity, enjoy the fruits of their iniquity and laugh in scorn at those whom they have wronged. If the condition of forfeiture is to be enforced in every case, those who improperly influence a testator may boast to a child, against whom he discriminated, of the power they exerted over him and of what they were able to accomplish for themselves, taunting and goading on such child to a contest; and yet if, in the end, those who so invited it, and whose conduct made it justifiable, succeed in sustaining the will by retracting or denying what they said, the contestant will not only be deprived of his gift or devise, but those who drew him into the contest may acquire his portion as part of their own plunder. . . .”
While we entertain some doubt as to whether the mere filing of an appeal from probate without a completed prosecution thereof, even though pleadings have been filed, amounts to a contest in the true sense of the word, we prefer to rest our decision on the broader principle. The question, therefore, is what was the information in the possession of the person who appealed from the probate that induced them in so doing: Lewis’ Estate, 19 Dist. R. 695. Did such information constitute probable cause? Probable cause has been defined in Pennsylvania “as a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man ... in believing that the party is guilty of the offense”: Miller v. Pennsylvania Railroad Co., 371 Pa. 308, 314.
The testimony in the equity proceedings was extensive and complete and Of such nature as to cause the chancellor, even though later reversed, to conclude that a confidential relationship existed between decedent and Helen Cwynar (Tommelleo). Coupled with this
We are of the opinion and find as a fact that these adjudications, without more, were sufficient information and reasons in the possession and knowledge of the next of kin of decedent to constitute probable cause such as to justify the appeal from probate of decedent’s will. We are of the opinion that the prayer of the petition permitting the appeal to be discontinued and withdrawn without prejudice to the rights of the legatees to participate in the estate, should be granted and an appropriate order will be entered.
Order
Now, April 18, 1958, it is ordered, adjudged and decreed that petitioners be and they are granted permission to withdraw and discontinue the appeal from probate of the last will and testament of John C. McMillin without prejudice to the rights of each of them to participate in the distribution of the estate of said decedent as beneficiaries thereof.