Declaratory Judgments-Avoidance of Peril-Refusal to Adjudicate Rights of Will Beneficiary Under No-Contest Clause-Testator

Testator, plaintiff’s father, acquired property in the joint names of himself and his wife by using money belonging to his wife. At her death testator claimed sole ownership of the property as the survivor. Plaintiff agreed not to probate his mother’s will if testator would bequeath the property to his children. Also, testator agreed that if he should remarry he would, by a prenuptial agreement, make it possible to carry out the plan. The agreement was not reduced to writing. Testator remarried and shortly thereafter executed a will in which he disregarded the verbal agreement and left a substantial part of his estate to his second wife. The will also contained a clause providing that any beneficiary under the will who contested any part of its contents should forfeit all rights thereunder. Plaintiff brought suit under the declaratory judgment act, asking whether a suit for specific performance of the oral contract would be a contest within the meaning of the clause. Defendant’s motion to dismiss the bill as not stating a proper ground for declaratory relief was granted by the district court. On appeal, held, affirmed. The declaratory judgment device is not available for the protection of interests which will be placed in jeopardy only if the plaintiff brings a suit for specific performance and loses. McLeod v. McLeod, 365 Mich. 25, 112 N.W.2d 227 (1961).