fraud, accident or mistake, which renders it against conscience to exclude the decree from attack, 43

§ 1325. Who May Contest Will.

The statutes sometimes enumerate those who may contest the validity of wills. The general rule, however, whether covered by statute or not, is that those only may contest the validity of a will who would be entitled to share in the estate of the decedent had he died intestate, or should the will be denied probate. This gives the privilege of contest not only to the heir at law, next of kin, or the surviving husband or wife of the decedent who may be entitled to succeed to his estate in the event of intestacy, but also gives the privilege to any devisee or legatee under any other will or codicil of the deceased whose interests thereunder would be adversely affected by the acceptance of the proposed testament. Should one in whom the right of contest is vested die, the right continues in his heirs at law, next of kin, or personal representatives. If no pecuniary benefit will inure to one by reason of the will in question being declared invalid, such a one has no right of contest." But where

43 Knight v. Hollings, 73 N. H. 495, 63 Atl. 38.

44 Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441; Jele v. Lemberger, 163 Ill. 338, 45 N. E. 279; Wilcoxon v. Wilcoxon, 165 Ill. 454, 46 N. E. 369; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Kostelecky v. Scherhart, 99 Iowa 120, 68 N. W. 591; Brewer v. Barrett, 58 Md. 587, 593; Taff v. Hosmer. 14 Mich. 249, 255; In re Langevin's Will, 45 Minn. 429, 47 N. W. 1133; Middleditch v. Will

iams, 47 N. J. Eq. 585, 21 Atl. 290; Reid v. Vanderheyden, 5 Cow. (N. Y.) 719; Matter of Lasak, 131 N. Y. 624, 30 N. E. 112.

Where an heir after the death of the testator transferred his interest in the estate by deed to another, such other has such an interest as entitles him to contest a will of the testator found subsequent to the transfer to him.Savage v. Bowen, 103 Va, 540, 49 S. E. 668.

the right of contest exists in behalf of a minor, the fact that his guardian ad litem inadvertently joins him in a motion for new trial and petition in error with a mere nominal defendant who has no rights in the controversy, will not defeat the minor's action since the law will protect infants from a loss of right under technical rules intended to govern litigation by those of full accountability.45

Where the rights of the widow in the property of her deceased husband are fixed by law and the will of such husband can not interfere with such rights unless she consents thereto, the widow has no such interest in her husband's estate as will authorize her to contest his will, since her property rights are not affected either by the validity or invalidity of the testament.16

§1326. The Same Subject: Executors, Public Administrators, Creditors, or the State.

One who is not an heir or one of the next of kin of the decedent or otherwise interested under the will, and who is merely named in the body of the will as executor, has no right by reason of such appointment by the testator to contest the validity of the testator's will. Thus, if the testator names one as executor in his will, and in a codicil thereto revokes such appointment and nominates another, the one named in the original instrument as executor has no right to contest the validity of the codi

45 Godfrey v. Smith, 73 Neb. 756, 10 Ann. Cas. 1128, 103 N. W. 450. 46 In re Fallon's Will (Murphy v. Fallon), 107 Iowa 120, 77 N. W. 575.

As to limitations upon the right of a husband or wife to dispose by

will of property in which the law gives the other an interest, such as dower, curtesy, or right in community property, see §§ 310, 622. As to the doctrine of election as applied to wills, see §§ 813-839.

cil. A public administrator as such can not contest the validity of a decedent's will, his official position giving him no beneficial interest.48 Nor has a creditor as such an interest in the estate of a decedent which will authorize him to contest the will, since it is immaterial by whom his claim is paid or whether the assets of the estate are administered under the will, or as in the case of intestacy. Any other rule would result in trouble, expense and delay.19

49

In those jurisdictions where the estate of an intestate escheats to the State if he die leaving no heirs, if a testator leaves no heirs, the State may contest his will the same as any interested party.50

§ 1327. Estoppel to Contest Will: Acceptance and Retention of Benefits.

It is the general rule that no one can claim both under a will and against it. One who accepts and retains benefits under a will is estopped to deny it. It is an election to take under the will,51 and if the beneficiary performs

47 In re Stewart's Estate (Hemsted v. Ferry), 107 Iowa 117, 77 N. W. 574.

48 Estate of Sanborn, 98 Cal. 103, 32 Pac. 865; Estate of Hickman, 101 Cal. 609, 36 Pac. 118.

49 Williams Exrs., (3d Am, ed.) *285; Menzies v. Pulbrook, 2 Curt. 845.

50 State ex rel. Donovan v. Second Judicial District Court, 25 Mont. 355, 65 Pac. 120.

51 Bell v. Armstrong, 1 Addams Ecc. 365; Herbert V. Wren, 7 Cranch (U. S.) 370, 3 L. Ed. 374;

Noe v. Splivalo, 54 Cal. 207; Appeal of Whiting, 67 Conn. 379, 35 Atl. 268; Medlock v. Merritt, 102 Ga. 212, 29 S. E. 185; Buchanan v. McLennan, 192 Ill. 480, 61 N. E. 448; Keys v. Wright, 156 Ind. 521, 60 N. E. 309; Medill v. Snyder, 61 Kan. 15, 78 Am. St. Rep. 306, 58 Pac. 962; Fisher v. Boyce, 81 Md. 46, 31 Atl. 707; Watson v. Watson, 128 Mass. 152; Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287, 78 S. W. 801; Beetson v. Stoops, 91 App. Div. 185, 86 N. Y. Supp.. 332; Syme v. Badger, 92 N. C. 706; Rutherford v. Mayo, 76 Va. 117.

54

53

any other acts recognizing the validity of the will, the application of the rule as to estoppel is even stronger.52 The fact that the beneficiary accepted the legacy under protest and under the claim that it was only a part of what he was entitled to receive, will not remove the bar of estoppel, even though he allege in his contest that he is ready and willing to return the amount or to have the same deducted from his share of the estate if the will be set aside. There are, however, qualifications to the general doctrine. The rule may better be stated that one who accepts property given him by the will can not contest the validity of the instrument unless he returns the property received or brings the same into court. To do so, however, the beneficiary must have received the property in ignorance of his rights or have been induced to accept the same through fraud or deception. This gives him the right to revoke his apparent election to take under the will, but even then he must not only return the property or bring the same into court, but there must be no unreasonable delay and the rights of innocent third persons must not be allowed to suffer.55

52 In re Richardson's Will, 81 Hun 425, 30 N. Y. Supp. 1008.

53 Pollman & Bros. Coal etc. Co. v. St. Louis, 145 Mo. 651, 47 S. W. 563.

54 Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287, 78 S. W. 801.

In Medill v. Snyder, 61 Kan. 15, 78 Am. St. Rep. 306, 58 Pac. 962, it was held that where the

beneficiary reviewed a legacy in ignorance of her rights and thereafter merely offered to restore the property received, it was sufficient, since no one was prejudiced or loser by her conduct.

55 Stone v. Cook, 179 Mo. 534, 64 L. R. A. 287, 78 S. W. 801; Miller's Estate, 159 Pa. St. 562, 28 Atl. 441.

See § 830, and notes thereto.

III Com. on Wills-14

§ 1328. The Same Subject: Effect of an Agreement, Release, or Appearance.

An agreement between a testator and his heir that the latter will not contest his will acts as an estoppel.56 An agreement between a husband and wife whereby they agree to live separate and apart, to make no claims for maintenance or support, and waive and release all right and claim of inheritance or to succeed to any part of the property of the other at his or her death, will estop the survivor from contesting the will of the other since such survivor has no interest in the estate.57 An agreement between the heirs of a decedent not to contest the will operates as an estoppel.58

One desiring to contest a will must establish his interest as a prerequisite to such contest.59 The court is authorized to hear evidence of an agreement not to contest the will or of a release by an heir to his ancestor of his interest in the ancestor's estate.60 Where the release is made by the heir to his ancestor or by a husband or wife to the other, it is not necessary that the fairness of the agreement be first established, although where the release is made to a third person the fairness of the release should first be shown. The one against whom an agreement or release is urged, however, is always entitled to show that the same is void or should be declared

56 Estate of Garcelon, 104 Cal. 570, 43 Am. St. Rep. 134, 32 L. R. A. 595, 38 Pac. 414.

57 Estate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231, 82 Pac. 962.

58 Reichard v. Izer, 95 Md. 451, 52 Atl. 592.

59 Estate of Latour, 140 Cal. 414, 437, 73 Pac. 1070, 74 Pac. 441.

60 Estate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231, 82 Pac. 962; Estate of Summerville, 129 Pa. St. 631, 18 Atl. 554.