In re Estate of Fitzgerald

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

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 710 thereof, providing as follows: “Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage.” The main contention of appellant is that, in the case at bar, talcing all of the provisions of the will together, there was no intent to forbid marriage, but simply an intent to give the use of all of the property until marriage, and that the provisions of the will should be construed as giving merely the use of all the property until marriage, and not an estate upon condition subsequent.

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

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 710 of the Civil Code, there can be no legal objection. Practically, the only question here is whether this clear intent has been expressed in such" legal form that the courts may carry it into execution. Respondent would have us, in an endeavor to defeat this inten

Estate of Alexander, 149 Cal. 146 , [ 85 Pac. 308 ], relied on by respondent, is not in point. The will in that case, by reason of its own peculiar language, was construed as showing the intent to give the property to a daughter “on condition that she remains unmarried.” It was said that the language used imported a condition, and no reason appeared why it should be given any other construction. In this regard, the provisions of the will differed materially from those of the will before us, and the construction there given does not assist here. Assuming that the will did give to the daughter, on condition that she remains unmarried, it was simply held that the condition of remaining unmarried was given full operation by referring the time of its performance to the death of the testator, and that the daughter not having married at that time, took an absolute fee in the property, free of condition. The portion of the opinion quoted by respondent, reading as follows, viz.: “But if it be said that the intent was that this

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, 120 Cal. 79 , [ 52 Pac. 132 ].)

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.