97 P. 138 | Utah | 1908
Lead Opinion
This is an appeal from an order or judgment of distribution entered by the district court of Cache county in a probate proceeding.
The facts involved are substantially as follows: On the 8th day of August, 1883, one William Poppleton, then a resident of Cache county, Utah, made his last will and testament in due form, by which he disposed of his real and personal property. The provisions of the will, so far as material to the questions involved in this appeal, are the following :
‘ ‘I will and bequeath to my wife Annie Poppleton the fol*290 lowing parcel of land, to wit: [Describing it.] It is my will that the above named real estate shall descend to my wife Annie at my death, to have and to hold in her own right and dispose of the same at her pleasure.
“I will and bequeath to Leah Perks all of that parcel of land situated as follows: [Describing it.] The■ conditions of this bequest are that the said Leah Perks shall be the sole owner in her own right of the property described above to be held by her for her support and the support of my children by her; but in the event of the said Leah Perks marrying again this bequest shall become null and void and the right of ownership shall revert to her children by me and be divided in equal shares amongst them, when the youngest child of hers by me shall have attained its majority — nevertheless if the said Leah Perks does marry again it is my will that she shall retain the house in which she lives and ten (10) acres of land, on a part of which the house stands, with all the appurtenances thei'eto to have and own for the term of her natural life but at her death it shall go to her children by me.’ ’
A provision in the same language follows the bequest in favor of Leah Perks, which is made in favor of Mary Ann Jeffs, by which certain property is devised , to her upon the same conditions as those imposed upon the bequest made in favor of Leah Perks. The testator died on or about August 1Y, 1883. The will, for some reason, was not admitted to probate until May 19, 1888, at which time it was duly established, and letters testamentary issued to one of the executors named in the will. No distribution of the estate seems to have been asked for or made until January 11, 190Y, when Leah Perks, the appellant, as one of the beneficiaries under the will, filed a petition asking for distribution of the estate in accordance with the provisions of the will. In her petition, among other things, she set forth the provisions of the will as they affected her, and, in connection therewith, alleged that she had not married since the death of the testator, and was entitled to have her1 distributive share set apart to her. The executor of the will filed an answer to this petition in
In his brief counsel for appellant states his contention thus: “Appellant contends that the word ‘marriage’ is a technical word and has a well-defined legal meaning, and that, as used in the will, is capable of but one construction or interpretation.” He further contends that the terms “marry” and “marriage” have so often been defined in the adjudicated cases that they have' acquired a fixed legal meaning. From this he concludes that it necessarily follows that, when the testator imposed the condition in his will by which Leah P’erks should be divested of a certain part of the property bequeathed to her in the event that she married' again, the testator referred to and intended a marriage as the term is technically understood and applied. That is, by “marrying again” the testator meant that relation which a single man and a single woman assume toward each other by entering •into the marriage relation; and that he did not mean, and cannot be held to have meant, any other relation, although such other relation be called a marriage. In other words* the
“In settling the meaning and effect of any provision in a last will and testament, the determining factor is the intention of the testator, and that intention is ascertained not alone from the provision itself, hut from a scrutiny of the entire instrument of which it is a part, and in the light of .the conditions and circumstances in which the instrument came into existence. These rules of construction are of universal application throughout the United States and Great Britain.’'
In Clarice v. Boorman's Exr’s, 18 Wall. (U. S.) 502, 21 L. Ed. 904, Mr. Justice Miller, after referring to the various technical rules of construction, proceeds as. follows:
“To these considerations it is to be added that of all legal instruments wills are the most inartificial, the least to be governed in their construction by the settled use of technical terms; the will itself being often the production of persons not only ignorant of law, hut of the correct use of the language in which it is written. Under this state of the science of the law, as applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much assistance than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself.”
In Goebel v. Wolf, 113 N. Y. 412, 21 N. E. 389 (10 Am. St. 464), Mr. Justice Andrews, after stating tbe technical rules of construction, concludes as follows:
“But the rule invoked, as others of like character, is subordinate to the primary canon of construction that the construction shall follow the intent, to be collected from the whole will, and that the intention of the testator, so ascertained, must prevail; and that general rules, adopted by the courts in aid of the interpretation of wills, must give way when on a consideration of the scheme of the will, or of special clauses or provisions, their application in the particular case would defeat the intention.”
The following, among a large number of cases that could be cited, further illustrate and sustain the texts quoted above:
Applying the rules as announced in the foregoing authorities to the particular provision of the will in question, what was the intention of the testator? He used the phrase, “but in the event of the said Leah Perks marrying again,” and provided that, in such event, tire particular bequest made for her should terminate and another be substituted therefor. If the testator had been living in and had been practicing the usual and customary domestic relations as they applied to those who accepted and practiced the monogamic system of marriage, then, no doubt, in using the term “marry again,” it would be reasonable to suppose that he meant a monogamous marriage. The testator, however, was disposing of his own property, and he could impose any lawful condition upon any bequest that to him seemed proper. If he thus believed in a peculiar system of marriage and practiced that system with the very person upon whose bequest he imposed the condition, it does not follow that he necessarily referred to a monogamous marriage only. In the absence of anything else in his will to indicate his meaning of “marry again,” that term might refer to either system. But in his will he speaks of only one woman as his wife. The bequests in her favor are absolute and unconditional. But, - when he refers to the appellant, he calls her by name merely, and then discloses that he has sustained certain relations to her by reference to the children of hers as being his offspring. He also refers to another woman in the same way, and imposes the same conditions upon the bequest made in her favor. It thus seems clear that it was the intention of the testator to make provision for his different families, and he thus provided homes for each one of them.
. The bequest in the will in favor of appellant comes squarely within section 2795, C.omp. Laws, 3 907, which was in force
We are forced to tbe conclusion, therefore, that the judgment is right, and it accordingly is affirmed, with costs to respondents.
Concurrence Opinion
(concurring).
I concur. Tbe decisive question is: In what sense did the testator use tbe term “marry again?” Had be simply used tbe word “marry,” I think it then could well be said that he intended to convey a meaning in tbe sense as such term is generally understood and defined, and hence it would not include a polygamous marriage. But tbe term “marry again” implies that Leah Perks bad once been married. If she married at a second or another time, tbe bequest was defeated. I think, therefore, it was proper to inquire into her prior matrimonial relation and to ascertain what that was. Such relation appears to have been a polygamous marriage only. By tbe use of tbe term “marry again,” tbe testator necessarily characterized stich prior matrimonial relation a marriage. If be regarded such prior relation a.
