278 CONTEE v. DAWSON.

demand itself; so in a will, a positive and unlimited prohibition to
sue, would, if enforced, in most cases, operate as a total revoca-
tion, or abnegation of the devise itself; and it would be a contra-
diction in terms and idle, to make a donation, and in the same
breath to withhold from the donee all legal means of sustaining his
right to the subject bestowed upon him. Hence, where a testator,
by his last will, declares, that any legatee who controverts the dis-
position he has made of his estate shall, by so doing, forfeit his
legacy; such provision is held to be in terrorim only; and that no
such forfeiture can be incurred by contesting any disputable matter,
in relation to it, in a court of justice, (r)

By the law of Virginia, real estate may be devised by a holo-
graphic will, without any attestation whatever, (s) Under which
law, our late great leader George Washington, wrote his will alto-
gether in his own hand writing, without having it attested by any
witnesses, by which he devised lands lying in the states of Virginia,
Maryland, Pennsylvania, New York, and Kentucky, and in the
territory north-west of the Ohio; and concluded by directing, that
should any dispute arise, the matter should be decided by arbitra-
tors 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, (t) This
holographic will, although valid in Virginia, it is clear, was a nul-
lity 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 under-
stood to have been the opinion of the profession, that this provision
directing a reference to arbitrators, did not prevent any party from
instituting a suit to establish and recover his right. But the diffe-
rences among the devisees and legatees were amicably adjusted
without bringing suit.

It is said, that where die bringing of a suit by the legatee is pro-
hibited with a bequest over, as in this instance, that then the
consequence 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

(r) Gibbons v. Dawley, 2 Ca. Chan. 198; Powell v. Morgan, 2 Vern. 90; Loyd
v. Spillet, 8 P. Will. 846; Morris v. Burroughs, 1 Atk. 404.—(s) Laws Virginia,
1748, eh, 5, s. 6; 1792, ch. 1; Domat Civil Law, pi 2, b. 3, tit. 1, s. 1; Code Nap.
s. 970; De Sobry v. De Laistre, 2 H. & J. 193.—(t) Ramsay's Life Washington,
Appendix.