
    SURROGATE’S COURT.
    In the Estate of Frederick Grote, deceased.
    Will— Opposing probate of will by legatee when not a forfeiture of a legacy — Code of Civil Procedure, section 2718 — When proceedings should be dismissed in accordance with this section.
    
    During the pendency of proceedings for the probate of an alleged will, the contestant, who was one of the next of kin of the decedent and was named in the disputed paper as a legatee, applied for an order directing the payment of a sum of money to be charged against her legacy or her distributive share accordingly as the disputed paper might thereafter he granted or refused probate. Such paper contained a provision declaring that any legatee or devisee who should contest its validity should forfeit thereby the bequest or devise in his favor.
    The respondents having filed an answer setting forth the foregoing facts and alleging that because of them the legality and validity of the petitioner’s claim was doubtful.
    
      Held, that under section 2718 of the Code of Civil Procedure the application must he dismissed.
    
      New York county, June, 1885.
   Rollins, S.

The daughter of this testator is opposing the probate of the paper propounded as his will. Rending the controversy she asks that out of the assets of the estate there be paid to her a sum of money, to be reckoned as part of her distributive share as next of kin, in case her cpntest shall prove successful, and in case it shall fail, to be reckoned as part of her legacy.

The proponents dispute the petitioner’s claim, and set forth facts that, as they contend, make its validity and legality doubtful. It is insisted in their behalf that, under these circumstances, the surrogate should dismiss the proceeding in accordance with the express directions of section 2718 of the Code of Civil Procedure. The grounds upon which the proponents attack the contestant’s right to take any benefit from her father’s will are these :

The paper in controversy contains the following provision: Article 34. “ Should any legatee or devisee contest the validity hereof, or any of the provisions herein contained, then any bequest or disposition herein made in favor of any such contestant shall thereupon cease, and be immediately revoked, canceled and annulled, and all gifts, bequests, &c., "herein given to any such contestant shall thereupon immediately become and form a part of the rest, residue and remainder of my estate, &c.

How, if the provision just quoted is valid and effectual, the proponents are obviously correct in claiming that in case the paper of which it forms a part shall be established as the testator’s will, the contestant will be discovered to have no interest whatever in the estate.

The force and effect of article 34 cannot, of course, be finally determined upon this application; but the matter must, nevertheless, be provisionally considered for the purpose of ascertaining whether the contestant’s action in opposing probate has rendered “ doubtful ” her claims as legatee.

• The validity of such a condition as burdens the dispositions of the paper before me has not, so far as I am advised, been passed upon by the court of appeals of this state or by any of our appellate tribunals.

In Jackson agt. Westerfield (61 How. Pr., 399), an action for the construction of a will, it was held by Van Vorst, J., that a clause in the disputed paper which imposed restraints upon proper inquiry into testamentary capacity and the legality and validity of dispositions of. property should not be favored. The learned justice- cited in support of that proposition several English cases, holding that such conditions were to be treated so far as regards bequests of personalty, and in cases where there was no gift over, as not obligatory but as in terrorem only, and he held that non-compliance with .the conditions would not work a forfeiture where there was probab'ilis causa UUgandi.

, It has already appeared that in the present case there is an express direction that any forfeited bequest or devise shall go to the residuary legatees and devisees. How, there are many decisions in tlie English courts which sustain the right of a testator to provide that for unsuccessful opposition to the prohate of his will, one named as a beneficiary shall forfeit his devise or legacy, and this especially when the testator has provided for a gift over.

Aside from other and earlier cases that support this proposition may be cited Cooke agt. Turner (15 M. & W., 127); Stevenson agt. Abington (11 W. R., 935), and Evanturel agt. Evanturel (L. R., 6 P. C., 1).

The validity of such conditions as are here under discussion was maintained by the supreme court of Ohio in Bradford agt. Bradford (19 Ohio State, 546), and was denied by the supreme court of Pennsylvania in Chew’s Appeal (45 Penn. St., 228.)

It is unnecessary to pursue the subject further. I certainly should not feel justified, in the present state of the law, in holding that the question whether the contestant has forfeited all claim as legatee under the will is entirely free from doubt, and must therefore, in obedience to section 2718, as interpreted by the court of appeals in Hurlburt agt. Durant (88 N. Y., 121), dismiss this petition, without prejudice to any claim that the contestant may hereafter make after the probate proceedings have terminated.  