VALIDITY. The homestead laws in some states affect the validity of wills by making void a husband's devise of homestead land ; 3 Jarm. Wills (Rand. & Tal. ed.) 740. See same citation for regulations in various states as to devises to corporations, or for charitable purposes.
A testator, by his will, may make any dis position of his property not inconsistent with the laws or contrary to the policy of the state; Weed v. Knorr, 77 Ga. 636, 1 S. E. 167 ; Russell v. Russell, 84 Ala. 48, 3 South. 900 ; In re Bissell's. Will, 63 Neb. 588, 88 N. W. 683. A provision for the purchase and erection of a monument on testator's grave is valid ; Mcllvain v. Hockaday, 36 Tex. Civ. App. 1, 81 S. W. 54; In re Koppikus Estate, 1 Cal. App. 84, 81 Pac. 732.
The right of a decedent to recover dam ages for his death, does not pass by will ; Sturges v. Sturges, 126 Ky. 80, 102 S. W. 884, 12 L. R. A. 1014; Caruthers v. Neal, 12 Ky. L. Rep. 567, 14 S. W. 599.
Provisions annexing to a legacy or devise a condition that it should be forfeited in case the beneficiary contested the will were re sorted to very early in England, and were up held by the courts. The rule established was that where there was probabilis causa liti gandi, and no gift over of the legacy or de vise, an unsuccessful contest of the validity of the will did not forfeit the legacy or de vise ; 2 Vern. 90 ; 3 P. Wins. 344 ; 2 ; but if there was a gift over, the breach of the condition would work a forfeiture ; 1 Atk. 526. Later it was held that such conditions were not contrary to the policy of the law; 15 M. & W. 727 ; and a similar decision was rendered by the Privy Council on an appeal from Quebec ; L. R. 6 C. P. 1, where the French and civil law is discussed at large. In this country, such conditions have been sustained, though with some difference of opinion as to what constitutes a breach of its condition and its effect. Their validity has been upheld in several states ; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419 ; In re Friend's Estate, 209 Pa. 442, 58' Atl. 853, 68 L. R. A. 447 ; In re Barandon's Estate, 41 Misc. 380, 84 N. Y. S. 937; Smithsonian In stitution v. Meech, 169 U. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793 ; Fifield v. Van Wyck's Ex'r, 94 Va. 557, 27 S. E. 446, 64 Am. St. Rep. 745; Rouse v. Branch, 91 S. C. 111, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296 ; Kayhart v. Whitehead, 77 N. J. Eq. 12, 76 Atl. 241, 140 Am. St. Rep. 575 ; Moran v. Moran, 144 Ia. 451, 123 N. W. 202, 30 L. R. A. (N. S.) 898 ; In re Miller's Estate, 156 Cal. 119, 103 Pac. 842. 23 L. R. A. (N. S.) 868; Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219.
In these cases generally there was no gift over, and as to the conflict of decisions on this subject, see 14 Y. L. J. 58. The mere
filing of a caveat does not constitute a con test within such provision ; In re McCahan's Estate, 221 Pa. 188, 70 Atl. 711. A provision that if any devisee should attempt, or aid in attempting, to prevent the proof of the will, the expense of probating it should be taken from their shares thereunder, is valid ; Kay hart v. Whitehead, 78 N. J. Eq. 580, 81 Atl. - 1133. Where the net income of a trust fund was given to testator's son for life, with re mainder over, a condition that the gift should fail, if the son contested the will, was void ; In re Wall, 76 Misc. 106, 136 N. Y. Supp. 452.
In some cases when the legatee had rea sonable cause to contest he was held not bar red by the provision as to forfeiture ; In re Friend's Estate, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447; Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399. If bequests are made upon condition that the legatees acquiesce in the provisions of the will, no legatee can, with out compliance with the condition, receive his bounty ; Smithsonian Institution v. Meech, 169 U. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793.
A contract to give property to a person by will is valid ; Howe v. Watson, 179 Mass. 30, 60 N. E. 415 ; Whiton v. Whiton, 179 Ill. 32, 53 N. E. 722 ; Stellmacher v. Bruder, 89 Minn. 507, 95 N. W. 324, 99 Am. St. Rep. 609; Spen cer v. Spencer, 25 R. I. 239, 55 Atl. 637 ; and such agreement to dispose of property in a particular way by will may be enforced in equity after the decease of the person making the promise against his heirs, devisees or personal representatives ; Austin v. Kuehn, 211 Ill. 113, 71 N. E. 841; Johnson v. Me Cue, 34 Pa. 180; Anderson v. Eggers, 61 N. J. Eq. 85, 47 Atl. 727. Such contracts have been sustained, to execute a will containing a legacy compensating the other for services rendered; Banks v. Howard, 117 Ga. 94; 43 S. E. 438 ; Jones v. Bean, 136 Ill. App. 545; to devise a homestead in consideration of services to the testator and his wife; Brandes v. Brandes, 129 Ia. 351, 105 N. W. 499; to vest the family homestead in the son, after the death of his parents, in consideration of their maintenance; Teske v. Dittberner, 65 Neb. 167, 91 N. W. 181, 101 Am. St. Rep. 614; to leave the property to an adopted son, in consideration of the adoption ; Heath v. Heath, 18 Misc. 521, 42 N. Y. Supp. 1087; to devise real estate in consideration of board and attendance; McAllister's Adm'r v. Bronaugh (Ky.) 113 S. W. 821. Such con tracts must be based on sufficient considera tion; Lewallen's Estate, 27 Pa. Super. Ct. 320.