*1 ADAMS, MARRIAGE EARL E. In re Petitioner Respond- ADAMS, Respondent, A. and MILDRED ISSACSON Appellant. ADAMS, MILDRED A. ISSACSON ent and Third Party SMITH, Appellant, VIOLETTE AGNES Plaintiff intervention, ALBERT A. ADAMS and HAZEL Plaintiff BAYERS, Third Party Defendants. No. 14782.
Submitted
Briefs Nov.
Dec.
Decided
Mildred A. Isaacson of their for the portion each other greater had known The parties when terms. In later years, been on friendly and had always lives cousin, Mildred, were and his first he failing, health Earl’s his needs. At looked out for She constant fairly companions. he marriage, about possibility of their discussions the fact that was aware of old. was 67 She years and Mildred he assured but problem, might first cousin relationship their make no difference. relationship occurred because contended Mildred if he could not find Earl would have had home nursing discussion, someone to take care of As of the marriage him. part life, Earl offered to take care of Mildred for the rest of her and to faith, leave her he owned. As evidence of his everything he good named her as a co-owner of twelve certificates of and deposit, they entered into mutual wills. 9, 1977,
On November fell broke both of his He hips. hospitalized later entered home Billings there. nursing 30, 1977, On November he commenced action for a declaration Mildred, changed owner- on the various ships certificates of so that he was the deposit sole owner thereof.
While Earl’s action Mildred was he died on pending, 2, 1978. His estate January presently being probated Musselshell Whether County. Mildred is his widow truly is a point for consideration in connection with the probate proceedings. death, Earl’s Following Albert Adams and Hazel Bayers, J. J. estate,
co-personal representatives were substituted as party in the petitioners action.
Trial was held on March Mildred filed Although answer and that she and the cross-complaint denying petitioner were first cousins and that the at denying marriage prohibited, the trial she admitted that she fact and Earl were in first cousins. 25, 1978, the a District Court entered based May on its between the ab finding marriage taken, initio. and the matter is before this Appeal properly for submission on briefs without oral Court argument. that
We find this between first cousins is void ab marriage the initio affirm District Court. 40-l-401(l)(b),
The is controlled section matter statute. Under by 48-310, MCA section between marriage R.C.M. (formerly first cousins is In this the specifically prohibited. respect, present law differs from the Marriage Montana Uniform statutory not Divorce Act which does include between first cousins marriage as a union. The in Montana mar- prohibited public policy the of sec- between first cousins is buttressed riages by provisions MCA, 40-1-402, shall tion which states when the District Court 66 its of a decree the declaring marriage prohibited by (5),
law. That in subdivision that the section provides “[u]nless circumstances, finds, of all relevant in- court consideration decree on retroactive third cluding parties, would served the decree not by interests be justice making it shall declare the invalid as date marriage ...” marriage. MCA, 40-1-402(5), ef in foregoing provision that is void ab initio. The ex marriage fect mandates finding MCA, 40-1-402, of justice noted in section the interests ception be decree not is in lacking served retroactive by made finding. this the District Court no such having to invalidate the did begun by is lawful abate reason death. Section MCA. by continued How action be personal representatives. ever, contends that validi estoppel Mildred under principles of her Earl should be sustained. ty 40-1-402, MCA, Before the section relating it was marriages, proper decrees cases courts examine in annulment whether void, or distinction is summarized — (1956), Annot., 1393 entitled Marriage author A.L.R.2d Attack, wherein it is stated: Posthumous which can “. . . voidable is one affected a defect confirmation, or of a disabili- cured ratification or removal while a one which have power void ty, confirm, validate.” ratify, under circumstances to at A.L.R.2d Takahashi's this Court held In re Shun T.
Accordingly, involving marriage P.2d Estate *4 woman, that since the man and a Caucasian between Japanese statute, then existing miscegenation offended Montana’s void, act not be cured later of any could it completely themselves or could be attacked parties and as such administrator). (in The force that case public collaterally of the in Takahashi to have been holding appears modified of section legislature for a MCA. That statute declares declaration of in- any of first validity prohibited marriage, including cousins, “at to the death of one of may brought any prior the action are also parties”. bring limited. may 40-1-402(5), MCA, that the court find provision may consideration of all the relevant circumstances that the in- terests the decree justice require appears to to the district to make this determination grant power judge without to distinction as to whether a is void regard or
With to respect estoppel, equitable which principles are iterate, remain applicable the same. To for equitable estoppel exist, (1) there must be: a false or a representation concealment facts, (2) constructive, made with the or knowledge, actual of the facts, (3) to a without party or means knowledge knowledge facts, (4) with the intention that (5) it should be acted upon and reliance the false representation to prejudice by other Cedar party. Co., Creek (9th Oil & Gas Gas. Co. Fidelity 277, Cir. F.2d cert. den. 356 U.S. 78 S.Ct. 763;
L.Ed.2d
State ex rel. Howeth v.
D. A. Davidson & Co.
MR. CHIEF HASWELL DALY and JUSTICE JUSTICES HARRISON concur. SHEA concurring.
I concur in the result but not in all that is stated.