The Brussels Post, 1928-11-7, Page 34 tot
1t"
•
e1/
When is a Will
Not a Will ?
Conditions and Restraints Imposed
by Testators Often P1aYs Into
Hands of "Will -Busting" Low-
ers and Lead to Costly Litiga-
tion— Situations Awkward and
Amusing—Will Your Will
"Hold Water",
(By M. L. Hayward.)
Toronto "Saturday Night" had the
following interesting item in the
issue of October 13 th:—
HE late Daniel O'Connell used to
THE
maintain that he could drive a
"coach -and -four" through any Act of
Parliament that ever was placed on
the statute books, and certain 'will -
busting" lawyers boast that no lawyer
ever drew a will that some other bro.
'cher of the long robe cannot pick to
pieces—"costs of all parties payable
out of the estate."
A favorite device of testators to
insure that the terms of the will shall
be carried out in the so-called "non -
contest clause,"—a clause in the will
to the effect that any legatee who
contests or attempts to defeat the''
will, or who attempts to collect any
claim against the estate, shall thereby
forfeit the legacy given hint in the
will. and directs who shall take the
legacy in the event of forfeiture
Consequently,
uently, if a legatee is en-
titled to $10,000 under the will, but
thinks 'that the estate owes him $20,-
000, he will seriously consider whet.
+her he had not better take the $10,-
000 bird in the hand, rather than go
farther afield, and, possibly fare
worse. In such cases lawyers anxious
for fees and employment cannot
safely say to the legatee "I'll go
ahead, try my best to 'bust' the will,
and get more money for you and in
i
THE BRUSSELS POST
tour' and a "gift- over" in case tie
h'gate, pre. tors or contests a clalnt
against the estate, and these clauses
have generally been upheld
"The question which the le Jibe!
hoe to decide is the (Irdinary one
which arises in almost every beehive.
trapsac•tion--whether 'the thing of-
fered is worth the price demanded,"
says another court in c•xprr +ia;;
the general rule,
On the other hand some r•ourt',
have rales that where the legatee
presents a flaunt, and ;accred" it
docs not work as forfeiture.
Of course an unconditional will ,
is generally plain sailing,
"I give, devise and bequeath to
my eon John all my real :eel )ler- =.
sone] estate of every nature and
description, for his awn use abrolu•
tely without restriction or control,,'
the father writes in his will, John --
after mourning properly--
into
roperly into the inheritane e proceeds to '
spend Ned enjoy the eeriea, e vil-
lug to his own will and fancy, sold
them i, neither contest tier opportu-
nity for ono.
A somewhat different eitaathon
asses, when the will is in iettuitly
the same words, with this additional
(huge,: "Provided however, that my
will containing a forfeiture clause, said son John shall and will men rlie-
and also gives 0 legacy to "C" by the: tely tcrminine hie percent fro a l.:in j
seine will. "C" then claims the land, with the blonde bob -haired chorus -
contending that it never belonged 'co girl of whom Ire is at present 'nam- .
"A", attempts to establish his title ored, and an whom he is pendia; .
to the land in court, and at the same his rather liberal allowance twice
'time claims his legacy, over, and in advance."
"You're cut out by the forfeiture "Looks as if I had to shoos.: he- t
clause," the other legatee conte. ;d, worm the coin and the chorus," John
"I was'nt contesting the will— I wets admits.
merely contesting 'A's' title to the 'rid see a sharp 'will -busting' l nv- i - —7 -7 --
ALMOST
ALMOST FRANTIC
WITH HEADACHE
Yidtley T •ouble
and Weakness Relieved
by c c,Pruif•'"a-tivest t
Mena TESSIEJt
"I was very weak 1cr autse of liiriney
Trouble and suffered with terrible
Ile e daub s Stine. lar to les
Tessier, St Gin de hlatht
Iwo tmated tor a 1.4ng time :eel was
jest about di,('ourese1l when 1
on 'i ruin-;o-tivs.' Ior provcrnnct, earale
with the ilea. few dose::, and in sic
mem lis he k•11 'y ituul,ir, weakness
;led lu drivewere gone."
"Fruit tit 3' 1 cedes the ;e,wels,
lshdnese and kin - ,A4rhicS the 1_4;14- -
and
l;od--
and 1 B ago 1 Houn *nitrous health.
'rev flus-; eiele fni miele ee mad' of
fruit juices e"tnlued with t}e feast,
medicinrt rf.tela.t it and 1:1.
a box a) deelies everywhere.
land that he included in the will
without any legal right," "C" retorts.
"It is not necessary for the legatee
to make a direct assault upon the
entire will in order to incur a for-
feiture," is the ruling of another
court in deciding against "C".
Cases also arise where "A" does
not openly contest a will, but en-
courages, aids and abets "C" in
doing so under a secret arrangement
by which 'A" is to profit if "C"
succeeds in "breaking" the will, and,
In this case, the courts, looking to
the substance rather 'than to the form,
have ruled that this works a forfei-
ture as far as "A" is concerned, points which should appeal to any -
An intereseting situation arises one who contemplates making a will,
where "A" snakes a will dated in -or who suspects --and hopes—that
1925, containing a forfeiture clause, somebody may have made a will in
and leaving a legacy to "B". "B"his favor.
does not technically contest this will, I First of all, may anyone making
but attempts to probate a later will, a will (the testator) give certain
made in 1926, which the court finds property to another person (the le -
to be a forgery. Then when "R" gatee), and at the salve time attach
claims his legacy under the will, a "string" to the gift by imposing
does the forfeiture clause operate certain conditions? the right
against him? I This is an easy query, g
On this point the law is well settled of the testator to impose conditions
that if "B" knows the second will to on the object of his bounty is firmly
be spurious, then he forfeits his established, and the reason is plain.
share under the first will, but one The testator i sunder no legal oblige -
court has ruled that if the attempt to tion to will anything to the legatee,
probate the second will is made in and, if he does, there is no valid
good faith, it does not work a for- reason why it should not be upon
•condition that the legatee parts his
yer, and find out if a clause like
that's legal and binding," a 'friend
with a smattering of "fireside, law"
suggest— and the fight is on.
This is no imaginary instance. It
is a highly human trait for the de-
ceased 'co endeavor to control his
estate after his departure, and it is
equally natural for the object of
his bounty to insist on handling the
estate as he pleases without any help
or 'hindrance from the other side of
the great divide.
These restrictive wills generally
lead to disputes, the parties wind up
in court, and there are a few salient
any case you're sure of the amount feature. ]fair in the middle as long as it re-
named in the 'will." 1 "The forfeiture provision ]las no mains portable- (
application to an attempt made in The testator should not take this
good faith to probate what purport' • statement too literally, however, as
to be a later will. The language of the condiiton imposed must be a legal
the clause is that if any beneficiary one.
'object to the distribution (of the I"o: instance if a 'testator wills
estate) a, made (by the will), or $10,000 to a legatee on condition
attempt 'to defeat the provisions of that the legatee shall learn and prac•
this will,' any gift to such benefici- 'cis° the occupation of a burglar or
ivy shall be annulled and revoked, highwayman, the condition is void as
if a nattempt were made knowingly it involves as breach of the law,
to probate a spurious will of a later Another qualifeation it that the
elate width purported to distribute condition must not be repugnant
the testator's estate in a manner to the gift, so, if a father wills land
diirerent from that of the genuine to a son, " to have and to hold unto
will, such an attempt would quite the, said son, his heirs and assigns,
certainly come within the language forever for his and their sole use and
of the forfeiture clause as an attempt benefit" subject, however, to the rr•g-
to defeat the, provision .of the will," friction that it shalt not he sold of
said The court. disposed of by the son or his heirs
Suppose, however, 'chat a will con- the condition is invalid, as it is in-
, tains 0 forfeiture clause, in the even consistent with the absolute gift.
of a legatee contesting the will, the In the leading case on this point
legatee does not deny the validity of
(Blackburn vs. McCollum, 33 5. C.-
, the will, but presents a claim against R. 01) the Supreme Court of Canada
the estate for money lent or services says :,--
renrlerd in the lifetime of the testa- "I find that the original rule
tor. whichsays that you cannot unmet
j "The prohibition did not mean 'co to a giftt in fee simple a condition
Prevent the assorting of supposed which is repugnant to that gift is as
rights
litsesto
not
muntiltgto'as o
enialof plain and intelligible rule,"
i
Conditions in wills are either
' court in ruling in favor of the lege-. "conditions precedent" or "comb -
tee.
Instead of containing a forfeiture
I clause aimed against a contest of
the will itself, wills frequently con-
ain a clause providing for a for:fei-
O:f course a legatee who is anxious
to contest the will may take a chance,
and contend that the forfeiture clause
is illegal, but, as a general rule, these
clauses have been upheld by the
courts
"The rule that a forfeiture clause
is to be strictly construed means that
no wider .scope 1s to be given to the
language employed than is phonily re-
quired. It does not require the court
to put a strained or over -technical
▪ construction upon 'elle language. used,
and refuse to give effect to the.laaw-
ful intention of the testator, to en-
able a legatee to affirm a will so far
las it is 'co his ownprofit, and, at the
same time, repudiate the validity of
its provisions which are for the
benefit of others. No artifical dis-
tinctions are to be taken advantage
of, or quibbling indulged in, to the
end that a person plainly and palp-
ably coning within the scope of the
forfeiter() clause may, by 'some hook
o rcrook' escape the penalty of for-
feiture," says one Court in announc-
ing the rule.
Again, legatee under a will con-
taining a forfeiture clause may op-
pose the provisions of the will in
some way, and then claim his legacy
on the ground that what he did was
not a "contest" within the nteanting
of the will.
For instance, "." claims a piece
of land, wills the land to "13" by a
, T -^,bra aGl!Vs,6�rAPnC@ema®msumsrx.. 4t,kTa'VEMI001.1Ktrlr1tu11110
mss^ .s�s� ma.rn—„, Maw_
�.e Lire•.11
t
gra
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la
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i1II��ili�1lfllllll'A.,
4I'
There are a great many ways to do a job of
printing ; but quality printing is only done one
way—THE BEST. We do printing of all kinds,
and no matter what your needs may be, from
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p. S,—We also do it in a way to save you money.
7 he Post
in .
Publash Rouse
,g
tions subsequent," The distinction
is hard to grasp, but itis of vital ruled that a pallial and 1e;t,aa1
importance, and an example will restrain of marriage is generally
mala it a little clearer, valid.
"Should my son John totally abs- The following tie;'rictien, for in -
thin from the use of tobacco in any sntance, have been upheld:
forint for throe years after my death! Not to marry till a certain age,
then, and in that event 1 give my nor a certain person, nor into a
said sol the sunt of $10,000," is a certain family or religious faith,
condition preedenc, not without the contest of certain
"I leave 10 my beloved wife the persons.
house in which I now reside for the Another common condition is one
term of her natural life, provided, relating to the relisgious activities
however, that should she remarry, of the legatee, and these conditions
then, and in that case, Thor right to are generally upheld on the ground
hold and occupy said house shall ine- that th legacy represent stile bounty
mediately 'terminate," is a condition of the testator, t ovhich he may an-
subaei tient, vex reasonable conditions, if he so
In other words, the gifts to the prcfrs.
son coupled with a condition prece- Consequently, conditions that the
dant does not take effect until he legatee shall adhere to or whdaw
has fulfilled the anti-toroacco con- from certain religious 0l'ganiitsatiorns,
dition—the gift to the wife with It or shall attend a certain church, m'
condition subsequent take effect at shell train up his children in a cer-
once, subject to the condition. thin religious faith, have been upheld
This may make pretty hard read- ' by the courts.
ing, but some practical problems "Thoof tesstatopropesr leas tyhe rightdtho to dis-
lo
arise when a condition is attacheh to pose hii't, olit;
a gift, and it is impoissble for the , aloe might accept or reject the gift
legatee 'co perform that conditon, voluntarily, without restriction upon,
A father, for instance, makes a will his will or coercion of his conscie
which says 'that if his son graduates necoar"ition saysthat the courtegator hn should uplloldattein, a
front McGill within three years after nda lnd
the father's death, then the son shall a certain church in a certain town,
have $10,000. When the father dies, "when not sick in bed, or prevented
the son Is blind and cannot perforin by accident or otter unavaible oc-
'the condition.encc.'
Does he get the cash/caSurppose, however, that a testator
He Toe, not, as the condition Is a leaves it legacy to a son on conditon.
Precedent 0140, and the general rule that he shall not outer.' into the mili-
is tint if a condition 1)1001ent is ren- tarry or naval service.
dered impossible or invalid (tither- "That's void, beecause it interferes
wise than by the act of the testator with the public service," the patri-
himself), the legacy is void. The row .otic; son contends, and it would Sen
son for till rule is that the legacy "that he i right,
does not pass to the legatee until "Such a provision strikes at the
the condition. is .fulfilled, and, that very security of the state, which
not being done, the courts cannot must depend for its protection
give the legacy to the legatee con- against external enemies on 'the
Crary to the testator's intention. armed forces of the land, both naval
Now, change the circumstances and military," is the reasoning of a
slightly. The same father wills pro- learned court,
pei'ty to the son, with a proviso that New, to what extent will reason -
ifs he does not graduate from McGill
within three years after the father's
death, then the son is to give up the
property,
Now, if the son goes blind and
cannot graduate, does he lose pro-
perty in addition to his eyesight?
L -Ie does not. The condition here
is "subsequent," in the case of con-
ditions subsequent, the estate vests
in the legatee, subject t othe perfo-
rmance of the condition, and the
impossibility of the condition will
not defeat the gift.
In a certain will, for instance,
money was given to a church 5;o be
used in building on certain land, the
land was taken for a courthouse, un-
der the power of "eminent domain,"
and the judges ruled that. the legacy
did not fail
"If by the terns of ache will the
money is given upon condition that
It shall be expended upon certain
premises, and htese premises are ta-
ken for a public use, it is the aet of
the law, and not the act or fault of
the legatee, which render the literal
performance of suclh- condition im-
possible," said the court.
In other words, in the case or con-
ditions precedent, the legatee can-
not hold what he has not yet grasped.
In the case of conditions subsequent,
he holds what he already has, not
withstanding the non-performance
of an impossible or invalid condition.
As has been said, the distinction
between conditions percedent and
subsequent makes dry reading, but
the importance of the point i appar-
ent when the condition becomei snl-
possible, as it frequently does. In
one case the legatee hold the gifts
—in the other be does not.
Another interesting will is the one
that attempts to control the mar-
riage of the living after the testator
had 'gone where there is neit110 mar-
riage. divorce nor giving in marriage.
The testator le often vitally interest-
ed in whom the legate shall or than
not marry, 'matrimonial c•enditiens"
ir, wilh r'rop up in the best regulated
-comities, and 0 'testator, for inst't-
nee, may will property to a legate o
on condition that the legatee remain
in sleet hlesseduese for his or her
natural life.
Is the condition valid?
"Matrimony is 1+11 inalienable
0114 400; atatd such a condition 10
against public. pal icy and good
morals," the legatee contend, and
quotes the Apostle Paul, and, while
there is considerable uncertainty
on thie point. the weight of authority
is that a condition in "total restraint"
of marriage is void.
1 At the saute time the courts have
tilde re'strirtions 111 re'fereeee t, the
education, 0„upas-Inn, re,'ode Lice and
moral qualities of the leagarb•,- be
upheld?
A r•e main Puritanical testator, for
instance, willed property to a 1.•1 tr•,•
"a r"ndation that h,, ,ah-taa,rl from
the ate of tobaVet', and inlox1. at'1w
liquor: as a beverage., the• lesea
was willing to arrept the en.11, bat
balked at the condition. wee :eel
thereto.
"Smoking and and drinking ere two
righty eunt'anteed to mr. by the c111-
1Trn11 law. and have ln-,•1, saanc•tr 4 l
by ftutucmorial usage," the l"•gstee
eontends, but the court ruled : a.cim t
him.
Suppose, !however, that the legato¢
f, a married female, and the con•
ditian is that her husbtar111 John shall
aah,tain.
"You can tie me up all you like,'
but you can't make me an,w.:rebh'
for John's sins," the !ovate), arcr
alai the court, to 114 cit -'e :eft 4-4Iy
referred to, decided this point in he/
favor.
"As it tome luc•nce of o iuh a con-
dition 11 e,afoler tole, 0 wife ,•nt tla'rl
to i,a(la Ity a1 income, were the. con-
dition
'011 dition broken, would be subir,r•tr•d ,
to liabIlity to a pr•naalty for r•ondoc:
which ,h". was prwat•le,=.x to control,"
war., the rear -aping of the court 00
(Ills point, appa:entl;; a.-umire; that
the husband would smoke rand drink
if he wanted to.
In 000 1104)1 1r.7e, the tc.L•at,r
left money to a son on condition
tIr1, "on all occasions when (Prey,-
-stow
e ,-
sary to write or spell his name he
shall spell it as it was spelled by my
ancestor's," and the son found that
he wnsbound by the condition.
Then there is til+ testator who
does not care what church the lega-
tee attends, or what grad, of - to.
bocco he smokes, but attempts to
control the future policy of the
estate along business lines.
Are these conditions valid?
"It is not needed for the purpose
of this case that we should speculate
as to the right of a man to control, •
from his grave, the election of direct-
ors of a corporation. sit. will be time
enough to decide this grave question '
when it arises," said the Pennsylva-
nia Supreme Court in a case- decided
in 1909, and the problem which the
court .side-stepped in that year was
squarely presented to the Suppreme
Court of Michigan in 1920, where a
will provided that stock was to be
voted by the executors so as to keep
certain parties on tho hoard of dire-
ctors, and in practical control of
the corporation, and the Supreme
Court of that state ruled that this
condition was contrary to "public
policy," and void,
A New York Court, it may be
pointed out, has arrived at a differ-
ent conclusion.
WEDNIi)SD
7, 00T011313 1920
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"These irust0es become pos r -s rl
of the stock, not a, their own vest.
but solely by virtue of the will ,and
of the condition which the will im-
posed, and no rule of law or of pu-
blic policy is offended by giving ef•
feet to that condition," is the Nrw
'York reasoning, and there dor, not
$0001 to be any ruling of a Canadian.
court where the point was squarely
raised,
Thaese rambling paragraphs are
merely a canter through an intricate
and technical subject, but onough
has been said to show thatthe tes-
tator who writes a conditional will,
is very likely writing his heirs and
legatees into a protracted and bit-
ter lawsuit, the result of which
even the proverbial attorney from
Philadelphia could not foretell,
In fact the familiar joke about a
certain millionarie contains a grain
of sense, after all.
This millionarie, so the story goes
having ben informed on high medi-
cal authority that his days were few
in the land, had just signed a last
'will and testament leaving every-
tghtehingr. to an only and unmarried dau-
"Now are you sure that that will
stand law"" the u,`iiien:nve eu(ri,ed_
"Certady."
"Alai you'll II :.0 a znt .•, that any
girl gel! ,.rt the money?" the millio-
naire ler 'toted.
"Fav, ry last cent of it," th,• attor-
ney 00rrre,h.
"That 'out:ds all riiht." the testa-
tor demurred, but I'd feel a little
Safer if you married het•.•'
The best way to get gladioli bulbs
for your garden 1' in plant the
pubets, They flower the first year
and are not expensive.
According to official statistics, re-
contfy `,leased, in the past six years
five _iris in Hungary have married
at thee -age of 14; 156 at 15, and 870
below the age of 16, end each year
about 1,000 were wedded between 16
I and 17.
1 Sir George Sutton, of Beckenham,
has recently presented to the Dick-
ens house, in London, a collection of
first editions of the books written
by Dickens while he was in residence
there from 1837-1839,
Ancient ur yes Found in Fax, North
With finds which they believe rank with those of
a9 Iiing Tut's tomb in antiquity if not in.splendor,
nine members of the Stoll -McCracken Expedition of
the American Museum of Natural History reached
Montreal over the lines of the Canadian National
Railways from Prince Rupert, B,C., where they left
the Schooner ilil'ie M. hiorrisey which had carried
therm through the Arctic waters. The 'unity consist-
ing of Charles Stoll of New York, backer anti Hired-
tor
irefor of the Expedition and his wife, a noted big game
huntress; Harold IytcCraelcen, Asso fate Editor of
Field and Stream and leader of the expedition;
Dr H. E. Anthony, Curator of Mammals of the
American Museum and other hviuseum experts, left
the port of Prince Rupert on May lot for northern
waters, and were at time 325 miles north of Point
Barrow. Their search was for ancient mummies
believed to be of Stone Age men, whose presence on
the barren islands of the Aleutians group had been
reported.
On a barrens island,. far from the present 'haunts of
men, a burial was discovered in which were four
booties in a rude sareophagus, constructed of drift-
wood, cleverly mortised together and held by nails
made of walrus bone. The mummies were those of a
chieftain; his hunter who was sent on the long
journey with him to provide game for his food; a
seamstress who had her sewing equipment for re-
pairing the chief's garnmennts, and a child believed to
'show the chief's love of children. Beside the body of
the hunter, were the stone hatchets and harpoons of
his craft. The mummies were splendidly preserved
and showed every indication that the people of the
Asiatic races, from which‚.1400 ' Stone Age' men
were believed to have come used methods of preser-
00tion similar to those of the Ancient Egyptians in
preserving the Ladies of unlit Pharaoh:. The four
mummi e. i enn•1 the trnnl lea heat l of tkn hunter
which is ehow•n here in the ha1,110 of litter11 Mc-
Crar'ken, leaden of the. Expedition, travelled to
Montreal with the party on the Continental Limited
of the Canadian National Railways and will be placed
in the Amerfran Museum together with the impor-
tant groups of mammals and birds of the Arctie
waters which the party secured during their exp(di-
tionl.
Photographs show the members of the party on
their arrival at Bonaventure Station, Montreal; the
mummified head of the hunter brought back by
Mr. McCracken, and '"`rough" a member of the
party and the only English bulldog which it known to
have ever sailed Arctic waters, enjoying a 'lookout
from the cab of the Canadian National Railways
locomotive which hauled their train into Montreal,
—Canadian National Railways pltotograpl •