The morning call., 1894-12-02
WITH THEIR AUNT GARcELON
Supreme Court Decision Upholds
the Garcelon Will.
LEAVING OUT THE TWO NEPHEws
Showing That Compromise Deed
Could Be Executed and Re-
Voked at Will.

The Supreme Court has approved the
| decision Of the lower court in the matter
of the estate of Catherine NJ. Garcelon, de-
ceased.
| The suit was brought by James P. Mer-
rift and Frederick A. Merritt. nephews of
| the deceased, to set aside Mrs. Garcelon' s
will as invalid. She had left the whole of
her property in trust to two nephews, S g.
phen w. Purrngton and Harry p. Merritt,
and had cut off James and Frederick Mer-
rift with the trifing remembrance of an
oil painting apiece. The disin herited Mer-
ritts brought suit at once to set aside the
will. They claimed unsouudness of mind
on the part of the testatrix undue influ-
| ence, and so forth.
Unfortunately for the Merritts 1t turned
out that Mrs. Garcelon had inherited all
her property from her brother, DIR. Samuel
Merritt, who died August IA, 1890, and be-
| queathed all to her, 10 the exclusion of his
nephews. James P. and Frederick A. Mer-
rift. They threatened to contest the will,
but were frightened off by Mrs. Garcelon,
who gave them $125, 900 on their signing a
quitclaim deed and promising in turn never
to dispute any will that she in her turn
might make.
All this was brought out in the answer
TO the contest, filed on behalf of Purring-
| ton and Harry Merritt, and when the case
| came up before the Superior Court of A Ia
| media County the judgment went in favor
I of the will. From this decision the disin-
herted nephews took an appeal. Fred
erick A. Merritt dropped out and James
P. Merritt fought the case alone.
The contestants claimed that the COM
promise deed which they had signed, re-
leasing their aunt from all contest over
DIR. Merritt's will and promising not to
| contest hers, was invalid and void 1t was
against public policy, they said. on the
ground that 1t attempted to bind the petit
lnnars. But the Supreme Court takes a
different view of the matter. In deciding
tina the compromise deed must hold good
the court remarks:
The sole object that the parties had in mind
Ill entering Into the covenant now under con-
sideration was 10 secure TO Mrs. Garcelon the
right 10 make such disposition OF her properly
as she might o. sire, free from the contin-
gency that her right so to do or The fact that in
so disposing OF 1t she acted freely or volun tar
lily might after her death be disputed by the pe-
tttioner or his brother, and, as before stated,
the agreement was made in contemplation of
the fact that controversies concerning the
validity OF wills or deeds frequently involve
doubtful considerations OF fact and that by
reason OF false testimony or the weakness of
Juries. their final decision may not always be in
accordance with the strict truth and Justice of
The case And we see no reason why per-
by the decision OF such questions may not In
advance. for an adequate consideration, waive
their right TO engage Ia such litigation.
The contract Is one that concerns the parties
alone and Goes not appear to us to be against
public policy. There never has been any
doubt that parties actually engaged in contest
ing Will upon any OF The grounds upon which
such contests are permitted may compromise
all matters in difference arising out OF such
confess and allow the disputed will to be
es aolished; and such agreements when fairly
made are always enforced 1t IS difficult to
understand why such compromise agreement
is any less against public policy than an agree
ment made by an heir-apparent with his an
cesior not TO contest future will of The latter.
In addition To this we think the principle upon
which the case OF Cook VS.. Turner was decided
is sufficient TO sustain the validity of this
covenant so far as relates 10 the question OF
pubic policy.
The question In that case arose upon condi-
ton in Will to the effect that If devisee
should dispute the will or the competency OF
the tesiator 10 make II the devise thereby given
should be evoked. Ii was argued in that case
that such a condition WAS void as against pub
lie policy, because of having tendency TO set
up the wills OF insane persons by restraining
one named therein as deviSee from c0ntesting
such Will But The court in that case said:
There appears 10 be no more reason why a
person may not be restrained by condition
from dlsputing sanity than from disputing any
other doubtful question, whether OF fact or of
law. on which the title to devise or grant may
depend"
Our conclusion upon the whole case Is that
the compromise agreement Is valid In the par
| ticulars discussed IN the foregoing opinion, and
that the petitioner is thereby estopped from
maintaining this proceeding. And, as the de-
cisioD OF The Superior Court proceeded upon
this ground. there was no error in refusing
petitioners demand for trial OF the issues re-
lating o the sanity of the testator or her free
dom from undue influence.
The respondents have moved TO dismiss the
appeal, but in view of our conclusions upon the
merits II is not necessary TO discuss the grounds
of such motion. We think the motion should
be denied.
Motion to dismiss appeal denied aud judg-
ment affirmed.
The courts opinion was written by
Justice de Haven and concurred in by his
associate Justices.