Appear from an order of the Superior Court of Ala-meda County dismissing a petition for the revocation of the probate of a will.

The appellant is a nephew of Catherine M. Garcelon, deceased, and this appeal is taken from an order of the superior court of Alameda county dismissing his petition, contesting the validity of a document theretofore admitted to probate in that court as the last will and testament of said decedent, and praying that the probate thereof be revoked.

The petition avers that the document so admitted to probate is not the will of said decedent by reason of the fact that she was of unsound mind, and incompetent to make a will at the time she signed it, and upon the further ground that the execution of the same was procured by undue influence exerted upon the decedent by Stephen W. Purrington, one of the residuary legatees named therein, and by other persons unknown to the petitioner; and, in its statement of the facts constituting the alleged undue influence, the petition avers, in substance, that, at the date of the said will, and long prior thereto, Catherine M. Garcelon was “a very aged woman, feeble and weak in body and mind, and mentally incompetent to manage, care for, or dispose of her property, and was unaware of the extent, amount, or nature of her property, or of its value, and was obliged to rely entirely upon other persons for the management of her property and affairs”; and that during all that time the said Purring-ton and other persons unknown to petitioner were in constant intercourse with her, and exercised an actual authority and dominion over her mind, and said persons, for the purpose of preventing the petitioner, as heir and next of kin, from coming into any portion of her estate by succession, or under her will, “had, prior to the making of said will, poisoned the mind of said Catherine M. Garcelon against the petitioner, and so induced her to dispose of almost all her property in trust, and to appoint the said Stephen W. Purrington and others as trustees thereof.”

Immediately following this statement the petition alleges: “The said Catherine M. Garcelon obtained all of her said property from the estate of her brother, Dr. Samuel Merritt, who^ died on or about the fourteenth day of August, 1890, and prior to that date she had not been and was not possessed of any property, real or personal, but was dependent upon the said Samuel Merritt for her support and subsistence.” The petition then proceeds to state certain alleged false representations which were made to the decedent for the purpose of injuring the petitioner in her estimation, and to cause her to make the will in question, and alleges “that the said Catherine M. Garcelon, being thereby influenced and not otherwise, and not of her own voluntary act or will, made the said purported will.” The petition further states that the said Purrington and others, for the purpose of securing a great benefit to themselves, “coerced and caused” the said decedent to subscribe her name to said will, and finally avers that she, at the time the “ said purported last will and testament was made, was mentally unable to resist the said dominion and controlling influence of said persons, and was unable to understand the contents of said document, and never did understand or know the same.” The petition also alleges that the petitioner and his brother, Frederick A. Merritt, are the nephews and the only next of kin of said Catherine M. Garcelon, and this averment is not denied.

The executor and the administrator with the will annexed answer separately, hut both answers are in all respects the same, and deny that the said Catherine M. Garcelon was of unsound mind, or incompetent to make a will,or that thewill probated as her last will and testament was executed under undue influence; and in addition to these denials state the following facts as a separate defense to the matters alleged in the petition: On or about August 17, 1890, one Samuel Merritt, a brother of Catherine M. Garcelon, died, leaving a large estate and a will, by the terms of which the greater part of his estate was given to his said sister, and only a small portion thereof to his nephews, the petitioner here and his brother, Frederick A. Merritt. This will was duly admitted to probate on September 15, 1890. The petitioner and his brother were dissatisfied with its terms, and threatened to contest the probate thereof, and employed a lawyer for that purpose; but a compromise was effected, and said Catherine M. Garcelon and the petitioner and his brother entered into a written contract, by the terms of which the former was to pay to her said two nephews the sum of one hundred and twenty-five thousand dollars, and also to convey certain real property to a trustee upon a certain condition subsequent, the trustee to collect and pay over the income to the nephews, and in consideration of which the latter was to release to their said aunt their claims as heirs of her brother, Samuel Merritt, and for that purpose were to execute to her a proper deed of conveyance of their interest in said estate; and it was further agreed that this deed should “ contain such apt words of warranty and covenant as may be prescribed and approved by the counsel of the parties of the first and second parts respectively, to the end of securing to the party of the first part full right and ample power to dispose of all of the property derived by her from the said Samuel Merritt, or by the deed of conveyance and transfer herein provided for; also of all the income to be derived therefrom, and of all the property, real and personal, which the party of the first part now owns or hereafter may acquire, either by deed or last will and testament, without any right, power, or authority of the parties of the second part hereto, or either of them, or their respective heirs or assigns, to question, dispute, or contest the same in any manner, or to any extent whatever.” And it was further provided that said nephews should also execute any other separate agreements and covenants which might be deemed necessary to secure to the said Catherine M. Garcelon the right to dispose of the property mentioned in the deed, either by deed or will, free from any possibility of contest by them. On the same day the petitioner and his brother executed to the said Catherine M. Garcelon an agreement, which, after referring to the death of Samuel Merritt, and the fact that he had left a large estate and a will by which the great bulk of it was devised and bequeathed to their aunt, and that they were dissatisfied with said will, and had threatened to contest the same, proceeded as follows:

“And Whereas, the undersigned and said Catherine M. Garcelon have mutually agreed upon a settlement and adjustment of their respective property rights and interests in the property and estate of which the said Samuel Merritt was seised or possessed, and in such settlement and adjustment the said Catherine M. Garcelon has made satisfactory provision for the undersigned;

“And Whereas, the said Catherine M. Garcelon has been induced to make such settlement and adjustment, and such provision for the undersigned, in reliance upon their respective promises and agreements that they, nor either of them, would never at any time hereafter, in any manner or to any extent, question, dispute, or contest, as her heirs at law, or otherwise, any disposition, which she may have made, or may hereafter make, by deed or will of any or all of the property derived by her from the estate of the said Samuel Merritt;

“ Now, therefore, for and in consideration of the premises, the undersigned do hereby promise, covenant, and agree to and with the said Catherine M. Garcelon, her devisees, legatees, and assigns, that they nor either of them, nor their respective heirs, shall or will at any time hereafter assert any right, title, or interest as the heirs or heirs at law of the said Catherine M. Garcelon to the property, real and personal, derived by her under the said last will and testament of the said Samuel Merritt.”

In addition to the foregoing agreement the petitioner and his brother also executed to their aunt a deed purporting to convey and assign to her all their interest in the property of the estate of Samuel Merritt, real, personal, or mixed, or in which they could have an interest as heirs at law of said Merritt. This deed also contained a covenant on their part, whereby they agreed “with the said Catherine M. Garcelon, her heirs, devisees, legatees, executors, administrators, and assigns,” not to question or contest any disposition of any of the property belonging to said estate which the said Catherine M. Garcelon “ may have made, or may hereafter make, either by deed or by her last will and testament,” and that neither of them would ever make any claim to any portion of the property derived by her under the will of Samuel Merritt, except such as he might be able to assert as a dev-isee or legatee under her last will and testament. The answers further aver that the said Catherine M. Gar-celon fully complied with all the terms of the compromise agreement on her part to be kept and performed, and that all of the estate of which she died possessed was derived from her deceased brother, the said Samuel Merritt, and under the terms of his will.

The genuineness and due execution of the several contracts and writings set out in the answer were not denied by the petitioner; but he moved to strike from the answers all the averments relating to the same as irrelevant and immaterial, and also demurred to the separate defense based upon the said alleged contracts. The motion to strike out was denied, and the demurrer overruled.

The petitioner also filed in due time a written request that the issues of fact relating to the competency of the decedent and her freedom from undue influence be tried by a jury. This request was denied, and thereafter the case came on for trial before the court without a jury, and, upon the hearing, the defendants “offered in evidence” the original contracts and deeds referred to in their answers, and also offered to prove the truth of the recitals therein contained, and that said terms were fully performed by the said Catherine M. Garcelotn The court ruled that none of said evidence was necessary or proper, the genuineness and due execution of said contracts and deeds being admitted, and thereupon the defendants moved to dismiss the petition of the appellant upon the ground that he was estopped by said contracts and deeds from questioning the validity of the will of said Catherine M. Garcelon, and upon the further ground that it appeared that he had no interest in the estate of said decedent. This motion was opposed by the petitioner upon certain specific grounds, which will be hereafter stated. The objections of petitioner were overruled, and the court made an order dismissing the petition upon the grounds stated in the motion of defendants.

Any contract between a person and his heirs apparent, so far as they on their side promise that they will not contest his will, is, necessarily nudum pactum, lacks consideration, is without mutuality of obligation, and is void. (Needles’ Executor v. Needles, 7 Ohio St. 434. See, also, Home Ins. Co. v. Morse, 20 Wall. 451; Lee v. Colston, 5 Mon. 238, 246; Jackson v. Westerfield, 61 How. Pr. 399; Chew's Appeal, 45 Pa. St. 228; Civ. Code, secs. 700,1045; 3 Pomeroy's Equity Jurisprudence, sec. 1287, note; Kreamer v. Earl, 91 Cal. 116, 118; 2 Story’s Equity Jurisprudence, sec. 1040 c; Holroyd v. Marshall, 10 H. L. Cas. 211; McDonald v. McDonald, 5 Jones Eq. 211; Collyer v. ■ZscmcSjL. R.19Ch. Div.351; Wald’s Pollock on Contracts, 302 n; Curtis v. Curtis, 40 Me. 24; Fitch v. Fitch, 8 Pick. 479; Trull v. Eastman, 3 Met. 121. And see notes to same case in 37 Am. Dec. 126; Chesterfield v. Johnson, 1 Lead. Cas. Eq. 593; 594.) Contract of persons not to be heirs are void as tending to encourage frauds on persons about to die. (Civ. Code, sec. 1272; Gilbert v. Sykes; 16 East, 156; Egerton v. Earl of Brownlow, 4 H. L. Cas. 1-250.) Even if a will is valid, a condition that a legacy shall be forfeited if the legatee contest the validity of the will is void if the contest was. made in good faith. (Jackson v. Westerjield, 61 How. Pr. 399; Chew’s Appeal, 45 Pa. St. 228.) Or if the contest was made on the ground of fraud. (Lee v. Colston, 5 Mon. 238, 246.) A contract void in law cannot be validated by estoppel. An estoppel cannot be of greater force than a contract. (Thompson v. Doaksum, 68 Cal. -598; Houston v. Turk, 7 Yerg. 13; McCoon v. Smith, 3 Hill, 148; Pagne v. Burn-ham, 62 N. Y. 69; Wilson v. Western Land Co., 77 N. C. 445; McKnight v. Pittsburgh, 91 Pa. St. 273; Langan v. Sankey, 55 Iowa, 52.) Possibility of dower is an interest capable of being released, in this respect differing from the expectancy of an heir apparent. (Rhodes v. Davis-, 51 Mich. 306.) Respondents cannot take advantage of any estoppel because of not being in privity with Mrs. Garcelon. (7 Am. & Eng. Ency. of Law, 4; 1 Bouvier’s Law Dictionary, 15th ed., 608; 2 Pomeroy’s Equity Jurisprudence, sec. 804.)

If the appellant is not interested in the estate of deceased, or has estopped himself, he cannot contest the will. (Code Civ. Proc., sec. 1307; Maurer v. Naill, 5 Md. 324; Biles v. Dean, 14 South. Rep. 536; In re Peaslee’s Will, 25 N. Y. Supp. 940; Matter of Wagner, 119 N. Y. 29; Woodruff v. Woodruff, 3 Demarest, 508; Henry v. Henry, 4 Demarest, 258; Stack v. Stack, 6 Demarest, 280; Fiske v. Pratt, 31 N. E. Rep. 715; In re Noah, 73 Cal. 586; 88 Cal. 468; Wicker sham v. Comerford, 96 Cal. 438.) Petitioner for a valuable consideration received from Mrs. Garcelon, renounced all claim that he might thereafter have as heir or otherwise to any portion of her estate, and his contract is lawful and binding. (Crum v. Sawyer, 132 Ill. 462, 463; Medcalf v. Ives, 1 Atk. 63; Lochyer v. Savage, 2 Strange, 947; Power’s Appeal, 63 Pa. St. 443; Estate of Summerville, 129 Pa. St. 631; Brands v. Be Witt, 44 N. J. Eq. 545; 6 Am. St. Rep. 909; Havens v. Thompson, 23 N. J. Eq. 321; 26 N. J. Eq. 383; Quarles v. Quarles, 4 Mass. 680; Kenney v. Tucker, 8 Mass. 143; Fitch v. Fitch, 8 Pick.' 479; Trull v. Eastman, 3 Met. 121; 37 Am. Dec. 126; Russ v. Alpaugh, 118 Mass. 376; Daniels v. Pratt, 143 Mass. 216; Nesmith v. Dinsmore, 17 N. H. 515; Robertson v. Wilson, 38 N. H. 48; Kershaw v. Kershaw, 102 Ill. 307; Simpson v. Simpson, 114111/603; Galbraith v. McLain, 84 Ill. 379; Bishop v. Davenport, 58 Ill. 105; Smith v. Pendell, 19 Conn. 107; Dart v. Dart, 7 Conn. 251; Nicholson v. Caress, 59 Ind. 39; Roberts v. Coleman, 37 W. Va. 143; Barham v. Afc-Kneely, 89 Ga. 812; Emerson v. IFe&sier, 53 N. W. 747; Boynton v. Hubbard, 7 Me. 112; Curtis v. Curtis, 40 Me. 24; 63 Am. Dec. 651, and notes; Kinyon v. Kinyon, 25 N. Y. Supp. 225; Daniel v. Lewis, 13 Ky. 828; Picket v. Dowdall, 2 Wash. (Va.) 106; Dikes v. Miller, 24 Tex. 425; Peacock v. Eastland, L. R. 10 Eq. 21; Townson v. Tickell, 3 Barn. & Aid. 31; Begbie Y. Crook, 2 Bing. N. C. 69.) The claim of the surviving husband or wife upon the estate of a deceased spouse is one which, from the nature of the marriage relation, appeals to the courts and to society to maintain; yet it has been repeatedly held that either spouse may by contract relinquish his status as heir, and his right by virtue of survivorship. ( Crum v. Sawyer, 132 Ill. 444; Marshall v. Beall, 6 How. 70; Goodrich v. Bryant, 5 Sneed, 325; Maurer v. Naill, 5 Md. 324; Ward v. Thompson, 6 Gill & J. 349; Charles v. Charles, 8 Gratt. 487; Hamrico v. Laird, 10 Yerg. 222; Wynne v. Spiers, 7 Humph. 394; Laftus v. Penn, 1. Swanst. 445; Ilafer v. Hafer, 33 Kan. 449.) Petitioner, having received the benefit of the contract, will not be permitted to question its validity, as he is estopped from so doing. .(Hathaway v. Payne, 34 N. Y. 109; Herman on Estoppel, 710, 725, 726; St. Louis etc. R. R. Co. v. Foltz, 52 Fed. Rep. 627; Kellar v. Stanley, 86 Ky. 244; Bidwell v. Pittsburgh, 85 Pa. St. 412; McKnight v. Pittsburgh, 91 Pa. St. 273; Illinois Cent. R. R. Co. v. King, 69 Miss. 852; Riggs v. Palmer, 115 N. Y. 506; Schelenberger v. Ransome, 47 N. W. Rep. 700; Allen v. Berryhill, 27 Iowa, 537.) The contracts constituted a “family settlement,” and should be sustained. (Robinson v. Boyd, 23 S. W. Rep. 72-78; Bierer’s Appeal, 92 Pa. St. 265; Sturgeon v. Ely, 6 Pa. St. 408.) There is little, if any, diversity of opinion upon the general proposition that parties may by contract intercept the line of descent. The rule has long been that dower and kindred rights may be excluded by the contract of the parties. (McNutt v. McNutt, 19 N. E. Rep. 123; Rivers v. Rivers, 3 Dessaus. Eq. 195; Plufger v. Pultz, 43 N. J. Eq. 440; Bengee v. Hiatt, 82 Ky. 666; Sutton v. Haydon, 62 Mo. 101; Young v. Young, 45 N..J. Eq. 27; Cailmere v. Battison, 1 Vern. 48; Van Tine v. Van Tine, 15Atl.Rep.249; VanDynev.Vreeland, 11N. J.Eq.370; Van Dyne v. Vreeland, 12 N. J. Eq. 143; Hammersley v. De Biel, 12 Clarke & F. 45; Brinker v. Brinlcer, 7 Pa. St. 54; Roehl v. Harmesser, 114 Ind. 311; Sclutt v. Missionary Soc., 41 N. J. Eq. 115; Bolman v. Overall, 80 Ala. 151; Hendey v. Simpson, 20 S. W. Rep. 881; Emory v. Darling, 33 N. E. Rep. 715; Wright v. Wright, 58 N. W. Rep. 54; Quinn v. Quinn, 58 N. W. Rep. 808.) Nor is there any thing in our code or statutory law preventing the enforcement of such contracts. Those provisions are but formulations of the existing legal rules, and do notchange the general principles of law and equity concerning such contracts. (Johnston v. Spicer, 107 N. Y. 191, 192, 195; Remy v. Olds, 34 Pac. Rep. 216; Hendy v. Dinkerhoff, 57 Cal. 6; Farmers’ Nat. G. Bank v. Stover, 60 Cal. 392; Estate of Hinckley, 58 Cal. 459; 2 Austin on Jurisprudence, 118; Ferrea v. Chabot, 63 Cal. 567.) A covenant not to revoke a will is a lawful covenant. (Robinson v. Ommaney, 21 Ch. Div. 782.) The doctrine of election is applicable to this case. (Hoyt v. Hoyt, 42 N. J. Eq. 300; Cook v. Turner, 15 Mees. & W. 733; Thompson v. Gant, 14 Lea, 314; Schley v. Collie, 13 L. R. A. 567; Hammer v. Iowa etc., 43 N. W. Rep. 187; 5 Ch. Div. 171; In re Cummings’ Estate, 25 Atl. Rep. 1125; Teidemann’s Equity Jurisprudence, sec. 123; Moore v. Butler, 2 Schoale & L. 266; Birmingham v. Kerwan, 2 Sclioale & L. 449, 450; Godrington v. Lindsay L. R. 8 Ch. App. 586; In re Lord Chesham, 31 Ch. Div. 472, 473; Cooper v. Cooper, 7 L. R. Eng. & Ir. App. Cas. 53; Codrington v. Godrington, 7 L. R. Eng. & Ir. App. 866.) Appellant cannot be heard to contest the will, not haying restored the consideration received upon executing his covenant. {In re Peaslee, 25 N. Y. Supp. 940.) The contention that the benefit of the covenants descended to appellant would render the covenants simply nugatory. {Crum v. Sawyer, 132 Ill. 443; Mc-Nutt v. McNutt, 19 N. E. Rep. 124.) The right to waive a right is the highest of all rights. {Bradford v. East, 21 S. W. Rep. 331.) The parties respondent here, and these whom they represent, are beneficiaries under the contracts, and may insist on their enforcement. {Rior-dan v. First Presbyterian etc., 26 N. Y. Supp. 38; Bakin v. Dakin, 97 Mich. 289.)