262 GONTEE v. DAWSON.—2 BLAND.

* demand itself; so in a will, a positive and unlimited prohi-

278 bition to sue, would, if enforced, in most cases, operate as a
total revocation, or abnegation of the devise itself; and it would be
a contradiction in terms and idle, to make a donation, and in the
same breath to withhold from the donee all legal means of sustain-
ing his right to the subject bestowed upon him. Hence, where, a
testator, by his last will, declares that any legatee who controverts
the disposition he has made of his estate shall, by so doing, forfeit
his legacy; such provision is held to be in terrorem only: and that
no such forfeiture can be incurred by contesting any disputable
matter, iu relation to it, in a Court of justice. Gibbons v. Dawley,

2 Ca. Chan. 198; Powell v. Morgan, 2 Vern. 90; Lloyd v. Spillet,

3 P. Will. 346; Morris v. Burroughs, 1 Atk. 404.

By the law of Virginia, real estate may be devised by a holo-
graphic will, without any attestation whatever. Laws Virginia,
1748, ch. 5, s. 6; 1792, ch 1; Domat Civil Law, pt. 2, b. 3, tit. 1,

s. 1; Code Nap. s. 970; De Sobry v. De Laistre, 2 H. &. J. 193.
Under which law, our late great leader George Washington, wrote
his will altogether in his own hand-writing, without having it at-
tested by any witnesses, by which he devised lands lying in the
States of Virginia, Maryland, Pennsylvania, isew York, and Ken-
tucky, and in the territory north-west of the Ohio; and concluded
by directing, that should any dispute arise, the matter should be
decided by arbitrators to be chosen by the disputants; but without
declaring, that the party who refused to submit to an arbitration
should forfeit his right, or that the devised estate should go over
to another. Ramsay's Life Washington, Appendix. This holo-
graphic will, although valid in Virginia, it is clear, was a nullity
as to the real estate in Maryland, because of its not having been
attested by three witnesses. Disputes did arise as to this or some
other defect or ambiguity of this will: and yet it is understood to
have been the opinion of the profession, that this provision direct-
ing a reference to arbitrators, did not prevent any party from
instituting a suit to establish and recover his right. But the dif-
ferences among the devisees and legatees were amicably adjusted
without bringing suit.

It is said, that where the bringing of a suit by the legatee is pro-
hibited with a bequest over, as in this instance, that then the con-
sequence of bringing suit will be a forfeiture of the legacy. Where
a testator devised his estate to trustees to be sold or disposed of

for the payment of his debts, and to make provision for his

279 * younger children; and then gave a legacy of £40 to his
heir, upon condition, that he did not disturb the trustees: Upon
a bill filed, by the trustees, to have an execution of the trust, it
was held, that the heir must either join in the sale, or lose his
legacy. Webb v. Webb, 1 P. Will. 132. This case has been some-
times cited to shew, that where there is a bequest over the legacy