son (1908) 30 Ohio C. C. 646, that a licensed physician might not enjoin an unlicensed one, where unlicensed practice had been made by statute a criminal offense, the plaintiff's theory being that his profits might be diminished; the court observed that the penal provision was for the protection of the public.

tion should issue "not because the defendant is committing a criminal offense, . . . but because what it is doing is an actual interference 'with property or rights of a pecuniary nature' which are recognized and protected under the law of New York." This case was reversed on other grounds in (1924) 264 U. S. 359, 68 L. ed. 731, 44 Sup. Ct. Rep. 350.

In holding that a retail liquor dealer, who had been handling the product of a certain brewer, might enjoin him from combining with other brewers, to control the output and price of the combined product in such a way that the dealer might be deprived of the product of the particular brewer, or forced to pay more for it, the court in Leonard v. Abner-Drury Brewing Co. (1905) 25 App. D. C. 161, said that the fact that the anti-trust act made a conspiracy in restraint of trade a crime did not necessarily impair the ordinary jurisdiction of equity, where. the criminal acts worked irreparable injury to property.

In Gilbert v. Mickle (1846) 4 Sandf. Ch. (N. Y.) 357, the court considered that a licensed auctioneer might enjoin an unjustified interference with his business by the posting in front of his store of a sign reading, "Strangers, Beware of Mock Auctions," even though the act was punishable by indictment, but held that the defendant in question, being mayor of the city, was justified in posting the sign, in view of his statutory duty to caution strangers against mock auctions.

In enjoining the gathering and selling to competitors of empty bottles bearing plaintiff's name, the court in Renner Brewing Co. v. Rolland (1917) 96 Ohio St. 432, 118 N. E. 118, expressly overruling the contention that injunction was not the proper remedy to compel obedience to penal laws, declared: "That of course is true, but the fact that wrongful interference with another's property may constitute a penal offense is no reason for refusing a writ, if the plaintiff for other reasons is entitled to the same."

But it was held in Merz v. Murchi

In refusing to enjoin the sale of a quack medicine, represented as that of a reputable physician, however, Lord Langdale said in Clark v. Freeman (1848) 11 Beav. 112, 50 Eng. Reprint, 759, that he was afraid that, if he was to interfere, he should be reviving the criminal jurisdiction of the Star Chamber, and also said that he had no jurisdiction to stay the publication of a libel.

In refusing to allow automobile dealers an injunction restraining a competing dealer from keeping his place of business open on Sunday to sell cars, the court in Motor Car Dealers' Asso. v. Fred S. Haines Co. (1924) 128 Wash. 267, 36 A.L.R. 493, 222 Pac. 611, after expressing the opinion that the action was nothing more than an attempt, by injunction, to enforce the criminal laws against selling personal property on Sunday, and to deprive the persons accused of the right of trial by jury, indicated its disbelief that the acts complained of constituted any special injury within the meaning of the rule applied to such cases.

In refusing the proprietor of a barber shop an injunction to restrain a rival shop from doing business on Sundays, in York v. Ysaguairre (1902) 31 Tex. Civ. App. 26, 71 S. W. 563, the court said that it was apparent that the design was to restrain the violation of a penal statute, because such infraction of law was supposed to give the violator some advantage over appellant in the occupation followed by each of them; and, further, that the allegations indicated that appellee was not directing his efforts toward injuring appellant, but simply to acquire money for himself. It also said that no right of property or of business was invaded, but that at most the petition claimed that appel

and circumstances known to the contestants, and of which they had information, and was based upon the honest belief entertained by them that undue influence had been exerted by Henry Dutterer in the execution of the will, and that honest belief based upon such facts and circumstances constitutes probable cause for the institution of the suit.

Radochio v. Katzen, 92 W. Va. 342, 114 S. E. 746; Bailey v. Gollehon, 76 W. Va. 322, 85 S. E. 556, 723; Brady v. Stiltner, 40 W. Va. 289, 21 S. E. 729; Porter v. Mack, 50 W. Va. 583, 40 S. E. 459; Friend's Estate, 209 Pa. 442, 68 L.R.A. 447, 48 Atl. 853; Drace v. Klinedinst, 275 Pa. 266, 25 A.L.R. 1520, 118 Atl. 907; Smithsonian Inst. v. Meech, 169 U. S. 399, 42 L. ed. 794, 18 Sup. Ct. Rep. 396; Chew's Appeal, 45 Pa. 228; Mallet v. Smith, 27 S. C. Eq. (6 Rich.) 12, 60 Am. Dec. 107; Rouse v. Branch, 91 S. C. 111, 39 L.R.A. (N.S.) 1160, 74 S. E. 133, Ann. Cas. 1913E, 1296; Sherwood v. McLaurin, 103 S. C. 370, 86 S. E. 363; Jackson v. Westerfield, 61 How. Pr. 399; Re Kathan, 141 N. Y. Supp. 705; South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 Atl. 961, Ann. Cas. 1918E, 1090; Tate v. Camp, 147 Tenn. 137, 26 A.L.R. 755, 245 S. W. 839; Wright v. Cummings, 108 Kan. 667, 14 A.L.R. 604, 196 Pac. 246; Whitehurst v. Gotwalt, 189 N. C. 577, 127 S. E. 582; Re Kennan, 188 Wis. 163, 42 A.L.R. 836, 205 N. W. 1001; Schouler, Wills, 5th ed. § 605; 2 Schouler, Wills, 6th ed. p. 1491; 2 Alexander, Wills, p. 1519; Pritchard, Wills, § 342.

Messrs. Campbell & Hannis and Brown & Brown, for appellees:

A gift over is not necessary for enforcement of a forfeiture clause of the kind in question.

Re Hite, 155 Cal. 436, 21 L.R.A. (N.S.) 958, 101 Pac. 443, 17 Ann. Cas. 993; Thompson v. Gaut, 14 Lea, 310; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Re Stewart, 1 Connoly, 412, 5 N. Y. Supp. 32; South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 Atl. 961, Ann. Cas. 1918E, 1093; Donegan v. Wade, 70 Ala. 501; Hoit v. Hoit, 42 N. J. Eq. 388, 59 Am. Rep. 43, 7 Atl. 856; Moran v. Moran, 144 Iowa, 451, 30 L.R.A. (N.S.) 898, 123 N. W. 202; Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219; Rood, Wills, § 620; 2 Jarman, Wills, p. 581.

The forfeiture clause operates where there has been an unsuccessful attack on the will, even though the contest

ant had reasonable ground to believe and did believe the will invalid.

Kayhart v. Whitehead, 77 N. J. Eq. 12, 76 Atl. 241; Re Hite, 155 Cal. 436, 21 L.R.A. (N.S.) 953, 101 Pac. 443, 17 Ann. Cas. 993; Re Miller, 156 Cal. 119, 23 L.R.A. (N.S.) 868, 103 Pac. 842; Moran v. Moran, 144 Iowa, 451, 30 L.R.A. (N.S.) 898, 123 N. W. 202; Bradford v. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Re Kitchen, 192 Cal. 384, 30 A.L.R. 1008, 220 Pac. 301.

Miller, J., delivered the opinion of the court:

The purposes of both suits are substantially the same: the first to enforce a forfeiture of all estate, rights and interests, of defendants Bessie M. Royer, Virginia F. Zinn, S. Alberta Flynn, and R. Stanley Dutterer, as devisees of the several tracts of land and interests therein devised to them by the will of the late Jacob H. Dutterer, in favor of the plaintiff J. Henry Dutterer and the defendant Flora K. Logan, the other devisees under the will, pursuant to a provision thereof, and to divide and partition said lands between them; the second, to enforce said forfeiture as to the personal estate of said decedent, in favor of the same parties, on the same ground, and for guidance and direction to said J. Henry Dutterer, as one of the executors of said will, the defendant R. Stanley Dutterer being the other executor thereof.

The testator, a prosperous farmer, by the eighth paragraph of his will, relied on as the basis for the relief prayed for, after making certain specific devises and bequests of real and personal property to his widow and to his two sons and four daughters, provided: "VIII. Direct that all the rest and residue of my estate, real, personal and mixed, of whatsoever kind and character, and wheresoever located, shall be equally divided among my six children, Virginia F. Zinn, Bessie M. Royer, Sarah A. Flynn, Flora K. Logan, J. Henry Dutterer and Robert S. Dutterer. I further direct, in case that any of my children shall be inclined to be dissatisfied and cause any

trouble in the administration of my estate, I direct that they shall be cut off of the provisions of my will, and direct that my executors pay them the sum of $10.00 in lieu of all interest."

The last clause, italicized, is the forfeiture provision sought to have enforced.

As ground for the alleged forfeiture, the bills allege that in December, 1922, after the death of the testator in November, 1921, and the probate of his will in December following, disregarding said forfeiture clause, the defendants Zinn, Royer, Flynn and R. Stanley Dutterer, who were inclined to be dissatisfied and to cause trouble in the administration of said estate, instituted a suit in equity in the circuit court for the purpose of contesting and having adjudged as no part of said will paragraph 3 thereof in favor of J. Henry Dutterer, on the alleged ground that the testator had been induced to execute the same and make the same a part of his will by the fraud and undue influence of the said J. Henry Dutterer and others; that said contest suit was instituted without probabilis causa litigandi, and that on the trial of the cause in the circuit court, a verdict had been directed for the defendants, and the bill dismissed, and that an appeal from that decree had been subsequently denied by this court; that plaintiff and Mrs. Logan were in possession of the lands forfeited; and the prayers of the bills were that the lands be partitioned, and that the personal estate be divided in accordance with the alleged rights of the plaintiff and his sister, Mrs. Logan. The decrees appealed from and now before us for review granting the relief prayed for, were pronounced on August 2, 1926.

Demurrers and answers to the bills challenge jurisdiction in equity to enforce the alleged forfeitures; and the answers set up by way of relief: (1) That the alleged forfeiture clause is too indefinite and uncertain to constitute the basis of forfeiture of the vested estates of

defendants in the land and personal property devised and bequeathed to them respectively; (2) that the institution of the contest suit was not within the terms of the will against "giving trouble in the administration of the estate," but amounted simply to the asserting of a right, for probable cause charged, to test the validity of the specific provision of the will in favor of J. Henry Dutterer, on the grounds alleged in their bill; (3) that the alleged forfeiture clause containing no devise or bequest over, should be construed as merely an in terrorem provision, not enforceable in equity; (4) that there was probabilis causa litigandi, and the contest was instituted in good faith, and not for vexatious purposes, and the forfeiture clause should not be construed as intending to or to in fact cut off the devisees from appealing to the courts for a vindication of their rights and to prevent fraud and imposition upon them by the undue influence of other ambitious heirs or devisees.

It is quite manifest that if we adopt the principle of the fourth proposition, and find it applicable to the facts pleaded and proven in this case, we need not further consider the other questions so ably and elaborately discussed in briefs and oral arguments of counsel, for its affirmance and application here will be decisive of the rights of the parties to the present litigation.

It is well settled in those jurisdictions where the rule of probabilis causa litigandi prevails, that an unsuccessful contest will not be conclusive of the rights of the contestants on the question of probable cause for instituting the contest. Stewart v. Sonneborn, 98 U. S. 187, 25 L. ed. 116.

In one of the leading cases on the subject, Friend's Estate, 209 Pa. 442, 449, 68 L.R.A. 447, 58 Atl. 856, it is said: "In view of this, we are now asked to say that the prior findings and conclusions of the court below are conclusive that there was not probable cause for this contest. The answer to this is, that the court,