119 P. 96 | Cal. | 1911
This is an appeal from a decree of final distribution.
The deceased died testate, leaving him surviving his wife, Lillian A. Fitzgerald, and a son, Edward B. Fitzgerald, and leaving an estate consisting of real and personal property, valued at about thirteen thousand dollars. His will, after providing for the payment of debts, expenses of last sickness, and burial, and costs of administration, and the payment of a legacy of five hundred dollars to his son, Edward B., provided as follows: —
"3rd. To my wife, Lillian A. Fitzgerald, I give, devise and bequeath the entire use of the rest, residue and remainder of my estate, real and personal and wheresoever situated, for the term of her natural life, except as hereinafter qualified, and upon her death the remainder of my estate shall go to and vest absolutely in my son, Edward B. Fitzgerald.
"4. In the event, however, that my said wife shall marry again, then I will and direct that the provisions made in paragraph three, shall immediately cease and terminate, and my estate be divided as follows; to my wife, one third and to my son two thirds thereof absolutely and in fee simple, and in such case, the five-hundred dollar legacy to my son named in paragraph two shall be estimated as a part of my estate in making said division, and if previously paid shall be deducted from the share to be received by him.
"5th. In the event that my said son shall die before me leaving no issue, I give, devise and bequeath to my wife, Lillian A. Fitzgerald, all my estate, real and personal and wheresoever situated, absolutely and without condition after the provisions of paragraph one have been met and satisfied. However, should my wife come into possession of my entire estate as herein provided, and not marry again, or having married *321 again have no issue, it is my desire and request that she will dispose of what may remain of my estate at her death in favor of my brother James E. Fitzgerald or his children, but this request shall in no way limit or affect her rights or power of absolute disposition of said estate."
By the will the wife was appointed executrix without bonds.
The will having been admitted to probate, the administration of the estate was proceeded with to the settlement of the final account and distribution of the residue of the estate, valued at something over twelve thousand dollars, all charges of administration, debts, and the legacy to the son, having been paid. The contest on distribution was between the widow, who has not married again, and the son, the widow claiming that the fourth provision of the will is void as being a prohibited condition in restraint of marriage, and that she was entitled to have distributed to her the whole residue of the estate for the term of her natural life, with the remainder over on her death to the son. The lower court adopted this view, and distributed the residue of the estate accordingly, viz., "to said Lillian A. Fitzgerald for the term of her natural life, she to have the entire use thereof during said term with the remainder on her death to Edward B. Fitzgerald."
This is an appeal by said Edward B. Fitzgerald from such decree.
In this state, the rule in regard to conditions imposing restraints upon marriage is to be found in our Civil Code, section
Learned counsel for the widow admits that all the authorities compel the conclusion that a gift to a wife "during such time as she shall remain my widow," or "until her second marriage," without other words indicating a life estate, would be *322
a valid disposition both under the common law and under section
Taking all of the provisions of the will together, the general intention of the testator is very clear. There is not the slightest indication that there was any design on his part to deter his wife from contracting another marriage, or that he had any objection whatever to her so doing. All of the provisions are consistent only with the idea that he felt it was fair and necessary that she should have the use of all the residue of his estate for her support and maintenance so long as she remained his widow, but that if she married again, thus presumably obtaining other means of support, the son ought properly to receive his fair share of the property at once, and the residue should be at once divided between the wife and the son in such proportions as seemed equitable. If she never contracted another marriage, the use of all the residue would be necessary to her during the term of her natural life, and the only thing he could fairly do for the son was to give him the remainder upon her death. If she did marry her right to the use of all the residue should at once cease, and she would take absolutely and in fee one third of such residue, and the son should take in the same way the remaining two thirds. If the son should die before the testator, leaving no issue, thus leaving the wife as the sole person as to whom obligation existed to make provision for, she was to take absolutely and without condition the whole estate after payment of debts, etc., even though, as was expressly recognized, she might marry again. This was clearly the intended scheme of the testator, a scheme absolutely fair, and to which, in view of section
Estate of Alexander,
It is not to be doubted that the question here discussed was necessarily presented for decision on the petition for final distribution, or that any decision reached thereon will be conclusive as to the respective rights of the devisees and legatees. (See Jewell v. Pierce,
It follows from what we have said that the residue of the estate of deceased should be distributed in accord with the third and fourth provisions of the will.
The decree appealed from is reversed, and the matter remanded for proceedings not inconsistent with the views herein expressed.
Shaw, J., and Sloss, J., concurred.