WILLS-ASSERTION OF RIGHTS UNDER MORTMAIN STATUTE AS VIOLATION OF NO-CONTEST CLAUSE

An action was brought by an executor for construction of a will, made five months before testator's death, which attempted to make bequests to various charities. The bequests were "invalid" under the terms of the Ohio mortmain statute because the will was executed less than a year before death. A no-contest clause in the will declared that any person attacking it in any way would be barred from any beneficial interest, but there was no gift over in the event of such a contest. The charitable gifts were in the residuary clause, and there was no substitutionary gift in the event that the charitable bequest failed.

The probate court held the bequests to the charities invalid, declaring that the property passed to testator's son and daughter by intestacy. On appeal, held, affirmed. Since the gifts to the charities were void and not merely voidable under the statute, the action by the children did not amount to a contest in violation of the no-contest provision. Kirkbride v. Hickock, 155 Ohio St. 293, 98 N. E. (2d) 815 (1951).