No. 14782 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF EARL E. ADAMS, 

Petitioner and Respondent, 

and 

MILDRED A. ISSACSON ADAMS, 

Respondent and Appellant. 

MILDMD A. ISSACSON ADAMS, 

Third Party Plaintiff and Appellant, 

VIOLETTE AGNES SMITH, 

Plaintiff in Intervention, 

VS. 

ALBERT A. ADAMS and HAZEL BAYERS, 

Third Party Defendants. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Lee Overfelt, Billings, Montana 

For Respondents: 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

James, Gray and McCafferty, Great Falls, Montana 

Submitted on briefs: November 7, 1979 

Decided: 'Ec 3 1 1979 

;\PC 7 - ;-.7 Filed: L. - -, 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

 his is an appeal from a judgment declaring a marriage 

invalid entered by the Hon. Nat Allen, District Court, 

Fourteenth Judicial District, Musselshell County. 

On September 13, 1977, Earl E. Adams, now deceased, and 

Mildred A. Isaacson Adams were married. They were first cousins. 

The parties had known each other for the greater portion 

of their lives and had always been on friendly terms. In later 

years, when Earl's health was failing, he and his first 

cousin, Mildred, were fairly constant companions. She 

looked out for his needs. At the time of their discussions 

about the possibility of marriage, he was 72 and Mildred was 

67 years old. She was aware of the fact that their first cousin 

relationship might be a problem, but he assured her that the 

relationship would make no difference. 

It was contended by Mildred that the marriage occurred 

because Earl would have had to enter a nursing home if he 

could not find someone to take care of him. As a part of 

the marriage discussion, Earl offered to take care of Mildred 

for the rest of her life, and to leave her everything he 

owned. As evidence of his good faith, he named her as a coowner of twelve certificates of deposit, and they entered 

into mutual wills. 

On November 9, 1977, Earl fell and broke both of his 

hips. He was hospitalized in Billings and later entered a 

nursing home there. On November 30, 1977, he commenced an 

action for a declaration of invalidity of his marriage to 

Mildred, and changed the ownerships on the various certificates 

of deposit so that he was the sole owner thereof. 

While Earl's action against Mildred was pending, he 

died on January 2, 1978. His estate is presently being 

probated in Musselshell County. Whether Mildred is truly his 

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widow is a point for consideration in connection with the 

probate proceedings. 

Following Earl's death, Albert J. Adams and Hazel J. 

Bayers, the co-personal representatives of his estate, were 

substituted as party petitioners in the invalidity action. 

Trial was held on March 31, 1978. Although Mildred 

filed an answer and cross-complaint denying that she and the 

petitioner were first cousins and denying that the marriage 

was prohibited, at the trial she admitted that she and Earl 

were in fact first cousins. 

On May 25, 1978, the District Court entered a judgment 

based on its finding that the marriage between the parties 

was invalid - ab initio. Appeal was properly taken, and the 

matter is before this Court for submission on briefs without 

oral argument. 

We find that this marriage between first cousins is 

void - ab initio and affirm the District Court. 

The matter is controlled by statute. Under section 40- 

1-401(1) (b), MCA (formerly section 48-310, R.C.M. 1947), a 

marriage between first cousins is specifically prohibited. 

In this respect, the present Montana statutory law differs 

from the Uniform Marriage and Divorce Act which does not 

include marriage between first cousins as a prohibited 

union. The public policy in Montana against marriages 

between first cousins is buttressed by the provisions of section 

40-1-402, MCA, which states when the District Court shall 

enter its decree declaring the invalidity of a marriage 

prohibited by law. That section provides in subdivision 

(5), that "[u]nless the court finds, after a consideration 

of all relevant circumstances, including the effect of a 

retroactive decree on third parties, that the interests of 

justice would be served by making the decree not retroactive, 

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it shall declare the marriage invalid as of the date of 

the marriage.. . ." 

The foregoing provision of section 40-1-402(5), MCA, 

in effect mandates a finding that the marriage is void - ab 

initio. The exception noted in section 40-1-402, MCA, that 

the interests of justice would be served by making the 

decree not retroactive is lacking in this case, the District 

Court having made no such finding. 

The action begun by Earl to invalidate the marriage did 

not abate by reason of his death. Section 27-1-501, MCA. It 

is lawful that the action be continued by his personal 

representatives. However, Mildred contends that under 

principles of estoppel the validity of her marriage to Earl 

should be sustained. 

Before the adoption of section 40-1-402, MCA, relating 

to decrees declaring the invalidity of marriages, it was 

proper for courts to examine in annulment cases whether the 

marriage was void, or merely voidable. The distinction is 

summarized by the author in Annot., 47 A.L.R.2d 1393 (1956), 

entitled Marriage--Posthumous - Attack, wherein it is stated: 

".. . . a voidable marriage is one affected by a 

defect which can be cured by ratification 

or confirmation, or by removal of a disability, 

while a void marriage is one which the parties 

have no power under any circumstances to ratify, 

confirm, or validate." 47 A.L.R.2d at 1403. 

Accordingly, this Court held in In Re Shun T. Takahashi's 

Estate (1942), 113 Mont. 490, 129 P.2d 217, involving a 

marriage between a Japanese man and a Caucasian woman, 

that since the marriage offended Montana's then existing 

miscegenation statute, it was completely void, could not be 

cured by any later act of the parties and as such could be 

attacked by the parties themselves or collaterally (in that 

case by the public administrator). The force and effect of 
the holding in Takahashi appears to have been modified by 

the legislature by the adoption of section 40-1-402, MCA. 

That statute declares that any action for a declaration of 

invalidity of a prohibited marriage, including the marriage 

of first cousins, may be brought "at any time prior to the 

death of one of the parties". The parties that may bring 

the action are also limited. The provision of section 40-1- 

402(5), MCA, that the court may find after a consideration 

of all the relevant circumstances that the interests of 

justice require not making the decree retroactive, appears 

to grant power to the district judge to make this determination 

without regard to any distinction as to whether a marriage 

is void or merely voidable. 

With respect to estoppel, the equitable principles 

which are applicable remain the same. To iterate, for 

equitable estoppel to exist, there must be: (1) a false 

representation or a concealment of facts, (2) made with the 

knowledge, actual or constructive, of the facts, (3) to a 

party without knowledge or means of knowledge of the facts, 

(4) with the intention that it should be acted upon and (5) 

reliance on the false representation to his or her prejudice 

by the other party. Cedar Creek Oil & Gas Co. v. Fidelity 

Gas Co. (9th Cir. 1957), 249 F.2d 277, cert.den. 356 U.S. 

932, 78 S.Ct. 775, 2 L.Ed.2d 763; State ex rel. Howeth v. D. 

A. Davidson & Co. (1973), 163 Mont. 355, 517 P.2d 722. In 

this case, the evidence is that Mildred knew that a problem 

existed with respect to validity of marriages between first 

cousins, and certainly had equal means to discover the facts 

concerning the law. Moreover, in the case of a marriage of 

such short duration, it is difficult to perceive any real 

prejudice. There is no equitable basis therefore to forestall 

the application of the rule against the validity of this 

marriage as of its date. 

The judgment of the District Court is affirmed. 

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Justice 

We Concur: 

Chief Justice 

,,' 

IJustices 

I concur in the result but not in all that is 

stated. r'- 

JUSTICE