1942 Gerald H. Lewis Trust, Matter of

• Decision Date: 15 July 1982
• Docket Number: No. 81CA0930,81CA0930
• Citation: 652 P.2d 1106
• Parties: In the Matter of the 1942 GERALD H. LEWIS TRUST. Mary Ann LEWIS, Plaintiff-Appellant, v. COLORADO NATIONAL BANK and Gerald H. Lewis, Jr., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1106

652 P.2d 1106

In the Matter of the 1942 GERALD H. LEWIS TRUST Mary Ann LEWIS, Plaintiff-Appellant, v. COLORADO NATIONAL BANK and Gerald H. Lewis, Jr., Defendants-Appellees.

No. 81CA0930.

Colorado Court of Appeals Div. III.

July 15, 1982.

Rehearing Denied Aug. 12, 1982.

Arkin, McGloin & Davenport, P.C., Harry L. Arkin, Fotios M. Burtzos, Denver, for plaintiff-appellant.

Sherman & Howard, Constance L. Hauver, W. David Pantle, Denver, for defendants-appellees.

KELLY, Judge.

Plaintiff, Mary Ann Lewis, and defendant, Gerald H. Lewis, Jr., are beneficiaries of a trust created by plaintiff's late husband, Gerald H. Lewis, Sr. Defendant Colorado National Bank is the trustee. Plaintiff appeals the trial court's denial of her motion for summary judgment and instruction to the trustee to cease paying income to her should she remarry. We affirm.

In 1942, Gerald H. Lewis, Sr., executed an inter vivos trust which directed the trustee to pay the income to Mr. Lewis for life, and, upon his death, to "pay one half of said net income to my then wife, so long as she shall live and remain unmarried." Ms. Lewis has been receiving income from the trust since 1966 and now wishes to remarry. The trustee informed Ms. Lewis that if she remarried it would cease paying her income from the trust pursuant to the quoted provision.

Ms. Lewis argues that the forfeiture-on-remarriage provision is void on public policy grounds as a restraint on marriage. There is no doubt that the public policy of Colorado favors marriage. See § 14-2-102(2)(a), C.R.S.1973. However, in interpreting trust provisions, it is also the policy of the law that the intention of the settlor or testator must be effectuated unless it is contrary to public policy or statutory enactment. First National Bank of Denver v. United States, 648 F.2d 1286 (10th Cir.1981); § 15-11-603, C.R.S.1973; In re Estate of Dewson, 181 Colo. 189, 509 P.2d 311 (1973). Thus, the tension between these two public policies, under the facts of this case, requires that we weigh the relative strengths and choose the stronger policy.

While a trust provision divesting the interest of a beneficiary, should she remarry, may be invalid as a general restraint on marriage, such a provision with respect to the remarriage of a widow has generally been upheld. Restatement (Second) of Trusts § 62 comment h. The courts have given various reasons for reaching this result, but seem to have been more heavily influenced by history than by analysis. The Romans exempted conditions restraining the remarriage of widows from their rules against restraints, and the English decisions have generally done the same. Browder, Conditions & Limitations in Restraint of Marriage, 39 Mich.L.Rev. 1288 at 1298 (1941).

Most American cases dealing with conditions against remarriage take the position that any policy against marriage restraints, if it exists, does not extend to the second marriage. Browder, supra, at 1311. Some courts have spoken of a husband's having an interest in his wife's viduity, and other factors include the interests of a testator's children, who might not be so well cared for after their mother's remarriage. Browder, supra at 1311. The Missouri Supreme Court declared that "widows are praiseworthy that content themselves with one husband, as being a pattern of chastity and modesty." Dumey v. Schoeffler, 24 Mo. 170, 173 (1857). Other courts have premised their validation of such restraints "upon an element of possessiveness, the desire of the testator to compel fidelity to his memory, even after his death." Restatement of Property § 426(1) comment c Recent cases merely reiterate the rule. See, e.g., Wilbur v. Campbell, 280 Ala. 268, 192 So.2d 721 (1966).

This is a case of first impression in Colorado, and, although we reach the same result, we are not persuaded by the reasoning of courts in other jurisdictions. Remarriage is no longer considered unchaste, immodest, or unfaithful, and archaic principles of coverture have been abandoned. Neither is there any meaningful distinction between marriage and remarriage to be found in the public policy favoring marriage. We see no reason to validate a restraint on marriage based on such theories.

However, we cannot ignore the deterioration of the marital relationship in our society over the last several decades nor pretend blindness to changing social attitudes toward the relationship between men and women. The recognition of such societal changes is the genius of the common law, and the recent developments in judicial decisions in response to changed attitudes toward marriage, see, e.g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976); see generally Fineman, Law & Changing Patterns of Behavior: Sanctions on Non-Marital Cohabitation, 1981 Wisc.L.Rev. 275 (1981); Willemsen, Justice Tobriner & the Tolerance of Evolving Lifestyles: Adapting the Law to...