In re Poppleton's Estate

• Decision Date: 05 August 1908
• Docket Number: 1898
• Citation: 97 P. 138,34 Utah 285
• Parties: In re POPPLETON'S ESTATE. Appeal of PERKS
• Court: Utah Supreme Court

97 P. 138

34 Utah 285

In re POPPLETON'S ESTATE. Appeal of PERKS

No. 1898

Supreme Court of Utah

August 5, 1908

APPEAL from District Court, First District; F. Erickson, Judge.

Proceedings for distribution of the estate of William Poppleton deceased. From a judgment of distribution, the petitioner Leah Perks, appeals.

AFFIRMED.

J. C Walters for appellant.

APPELLANT'S POINTS.

"Marriage is a contract by which a man and woman are reciprocally engaged to live with each other during their joint lives and to discharge towards each other the duty imposed by law on the relation of husband and wife." (Bouvier's Law Dictionary; Mott v. Mott, 22 P. 1140; Hilton v. Roylance, 25 Utah 129; Palmer v. Palmer, 26 Utah 31; Kilburn v. Kilburn, 26 P. 636; State v. Cooper, 15 S.W. 327; State v. Bittrick, 15 S.W. 325; Milford v. Worcester, 7 Mass. 52; Reynolds v. United States, 98 U.S. 145; United States v. Snow, 4 Utah 313.)

It will not be presumed in construing a will that the testator intended to do an illegal act, when another construction can be given to a devise. (Patterson v. McCann, 14 N.Y. St. 385; Davis v. Wood, 56 Ky. 86; 29 Am. & Eng. Enc. Law, 352.)

Any provision of a will which seeks the forfeiture of an estate given by the previous terms thereof will be strictly construed, and in this case if there is any doubt as to the intention of the testator, this doubt should be resolved in favor of the devisee and against a forfeiture of the estate devised to her. (Thompson v. Thompson, 9 Ind. 323; Emerson v. Simpson, 43 N.H. 475; Heden v. Railway Co., 73 Iowa 328; Taylor v. Sutton, 15 Ga. 103; Magoffin v. Patton, 4 Rawle 113; Snyder's Estate, 180 Pa. St. 170.)

Under the rule of the civil law all conditions in wills restraining marriage, whether precedent or subsequent, and whether there was any gift over or not were absolutely void. (2 Jarman, Wills, 46.) And the English rule is that devisees of real estate unqualifiedly restricting marriage are void. While this rule is followed in some of the United States. (Crawford v. Thompson, 91 Ind. 266.) The general rule is that where the restraint is only partial as where it requires consent of a parent, or not to marry under age, or not to marry into a particular family or to a particular nationality, it is good and will be enforced. (30 Am. & Eng. Enc. Law, 805; Shackelford v. Hall, 19 Ill. 212; Reuff v. Coleman, 30 W.Va. 171; Collier v. Slaughter, 20 Ala. 263; Graydon v. Graydon, 23 N. J. Eq. 229.)

"Where a condition in restraint of a first marriage is sought to be imposed, there is no question that a condition in general restraint of marriage which is imposed in order to cause the beneficiary to live unmarried is contrary to public policy and void." (Rood on Wills, 611; In re Denfield, 156 Mass. 265; Waters v. Tazwell, 9 Md. 291; Maddox v. Maddox, 11 Grattan [Va.] 804; Otis v. Prince, 10 Gray 581; Mourning v. Mining Co., 99 Mo. 320; Williams v. Cowden, 13 Mo. 211; Phillips v. Ferguson, 85 Va. 511; Smythe v. Smythe, 90 Va. 688; Hoops v. Dunda, 10 Pa. 75; Jarman on Wills [6th Ed.], star page 892; Kennedy v. Alexander [D. C.], 21 App. Cas. 424; Alexander's Estate [Cal.], 85 P. 308.)

Nebeker, Hart & Nebeker for respondent.

RESPONDENT'S POINTS.

"The first and great rule in the exposition of wills," said Chief Justice Marshall, "to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law." (Smith v. Bell, 6 Pet. 75, 8 L.Ed. 325; Finlay v. King, 3 Pet. 327, 7 L.Ed. 712.)

"In construing the holograph will of an illiterate man, the meaning of technical language may be disregarded, but no word which has a clear and definite operation can be struck out. (Hall v. Warren, 9 H. L. Cas. 420, 7 Jur. N. S. 1089; Lytle v. Beveredge, 58 N.Y. 592; Gravenor v. Watkins, L. R. 6 C. P. 500; Melson v. Giles, id. 532; Van Nostrand v. Moore, 52 N.Y. 12; Chrystie v. Phyfe, 19 N.Y. 344, 348.)

The intention of the testator must be gathered from the whole will. (Phelp v. Bates, 1 Conn. 92; Goebel v. Wolf, 10 Am. St. 464; Tolden v. Green, 27 Am. St. 487; L'Etourneau v. Henquenet, 28 Am. St. 310; Bucker v. Burnham, 37 Am. St. 135; Succession of Allen, 55 Am. St. 295; Eldred v. Neek, 75 Am. St. 86; Miller v. Worrall, 90 Am. St. 480; Bell County v. Alexander, 73 Am. Dec. 268.)

"The court is bound to give effect to every word in the will so far as that can be done without contravening the general intent as clearly gathered from the whole instrument." (Gray v. Minnethorpe, 3 Ves. 105; Constantine v. Constantine, 6 Ves. 102; Homer v. Shelton, 2 Met. 202; Lasher v. Lasher, 13 Barb. 106; Chrystie v. Phyfe, 19 N.Y. 344, 388.)

In construing wills, the intention of the testator must govern his devise, if not contrary to law, and if it can be ascertained. (Hunt v. Johnson [1850], 49 Ky. [10 B. Mon.] 342; Sprankle v. Commonwealth [Pa. 1884], 2 Walk. 420; Brooks v. Evetts [1871], 33 Tex. 732; Button v. American Tract Soc. [1851], 23 Vt. 336.)

Proof of the situation and circumstances of a testator and his family, of his property, and legatees, and the like, are always admissible to aid the construction of a will. (Travis v. Morrison, 28 Ala. 494; Stevenson v. Druley, 4 Ind. 519; Jackson v. Hoover, 26 Ind. 511; Goodhue v. Clark, 37 N.H. 525; Woods v. Woods, 55 N.C. 420; In re Barr's Estate, 2 Pa. [2 Barr] 428; Rewalt v. Ulrich, 23 Pa. [11 Harris] 388; Hunt v. White, 24 Tex. 643; Succession of Thorame, 12 La. Am. 384; Gillman v. Chancellor, 43 Miss. 437, 5 Am. Rep. 498; Lummus v. Mitchell, 34 N.H. 39; Edens v. Williams, 7 N.C. 27; Watkins v. Flora, 30 N.C. 374.)

FRICK, J. McCARTY, C. J., STRAUP, J., concurring.

OPINION

FRICK, J.

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 following 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 thereto 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 17, 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, 1907, 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 her distributive share set apart to her. The executor of the will filed an answer to this petition in which he, in effect, denied that the petitioner had not married again. He also filed a petition praying for distribution of the estate, but asked for distribution in some respects different from that prayed for by Leah Perks. The petition of the executor was joined in, and, in some respects, supplemented by some of the assignees of certain devisees under the will; and they affirmatively alleged that Leah Perks had married again since the death of the testator, and that, therefore, she was not entitled to the full share bequeathed to her in the will, but to that part only which was bequeathed to her in the event that she married again. Upon these issues a hearing was had to the court, who made findings of fact and conclusions of law. The findings of fact and conclusions of law, so far as material, are as follows: "That, by the terms and provisions of the last will and testament of said decedent, it is provided: [Setting forth the terms of the will in the language hereinbefore stated.] That at the time of the making of said will, and at the time of the death of said decedent, the said Leah Perks, otherwise known as Leah Perks Poppleton, was the plural or polygamous wife of the said decedent; that both the decedent and said Leah Perks Poppleton were members of the Church of Jesus Christ of Latter-Day...