Old Colony Trust Co. v. Wolfman

Lummus, J.

On March 6, 1938, the testator, Nathan Wolfman, died in Boston, leaving a will by which he gave -the residue of his estate to trustees to accumulate the net income of one eighth thereof until his minor daughter Muriel Frances Wolfman, his only child, should arrive at the age of twenty-one years, and then to pay her the accumulated income, and thereafter to pay the net income to her and after her death to her issue until the end of twenty years after her death. At that time the trust was to terminate, and the trust fund was to be paid to her surviving issue.

The testator provided: — “If any beneficiary of this will shall contest or dispute the probate thereof or seek to maintain before any judicial body that this is not my will, or *616 call into question before any tribunal the validity of any legacy given or any of the provisions hereof, then I absolutely revoke whatever provision I have made in this will ■for the benefit of such person and declare the same void and of no effect and that all property which would have been covered by such provisions shall be added to and disposed of as a part of my residuary estate.”

Prior to the coming of age of - Muriel Frances Wolf man, the Probate Court appointed a guardian ad. litem for her, and he filed an appearance for her against the allowance of the will. But, after hearing, the will was allowed on May 2, 1939, and evidently there was no appeal. Upon a petitian by the trustees for instructions, the Probate Court decreed that the respondent, Muriel Frances Wolf man, by contesting the validity of the will of said Nathan Wolf man, has forfeited any right she may have to receive any benefits under said will, and that the provisions of said will relative to the taking by said Muriel of income of one eighth of the residuary estate, hereinbefore described, are void, and that said one eighth is to be paid to the executors. Muriel Frances Wolf man, and the guardian ad litem for her possible issue, appealed.

There was no need of an acceptance of his appointment on the part of the guardian ad litem of Muriel Frances Wolfmaif. His acting for her amounted to an acceptance. His action was “conclusive upon” her (G. L. [Ter. Ed.[] c. 201, § 34), and conclusive that she contested the will. A provision forfeiting the interest of a beneficiary who contests a will is valid. Rudd v. Searles, 262 Mass. 490 . Maguire v. Bliss, 304 Mass. 12 .

No guardian ad litem for the possible issue of Muriel Frances Wolf man having been appointed prior to the allowance of the will, they cannot be said to have contested the will. The forfeiture provision affected Muriel’s interest, but not theirs. A result in harmony with ours was reached in Cross v. French, 118 N. J. Eq. 85, 89; S. C. 119 N. J. Eq. 563, 564.

The final decree is to be modified to conform to this opinion, and as modified is to be affirmed. Costs and expenses *617 as between solicitor and client are to be in the discretion of the Probate Court.

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