The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-06-21

by Judge Bartch in the probate court yes
terday morning. 1t will be remembered
that few years ago Joab Lawrence, q re-
spected and wealthy resident Of this city,
died and his widow came into possession OF
an estate valued at over million dollars.
A short time after the death Of Mr.. Law.
renee the widow made her will, leaving
all OF her property except q few
legacies. to her daughter, Mrs
Moylan G. Fox. Some time afterwards
Mrs. Lawrence married George Z. Mckib-
ben and year later she died at the Cullen
hotel in this city. Mrs. Fox and the other
heirs took possession of the estate under
the will executed prior to Mrs. Lawrence's
last marriage and Mr.. McKibben contested
the will on the grounds that under the laws
OF Utah widow marrying invalidates all
wills she may have already made. This
being the case, the contestant would get
half the property.
Judge Powers and Ogden Hiles appeared
for the contestant, while Bennett, Marshall
q Bradley and w. II. Dickson represented
the defendants in the big legal fight
In his decision Judge Bartch states the
case as follows:
As shown by the records in this case, sarah
NJ Lawrence. then widow, made and executed
a viii on the end day OF June. 1883 and thereby
disposed OF ali her property. Sne lnter-Hlar-
ried with George E Mchibbin on the / tn day
of May. 1889, and died on the 9TH day OF Marcn,
18th day OF May, 1891. with the petition or
Moylan C. Fox and George Y. Jacobus, asking
FOR the admission 10 probate thereof. On the
BIRD day OF June, 1884, the said Will was al
united 10 probate as the last VIII and testament
OF Sarah NJ McKiObin. deceased. On the loth
day OF April. 1871, the said George T. Mchibbin
filed in said court petition contesting the pro-
bate Of said will. and, by leave OF the court:
fled an amended petition on the 18th day OF
May, 1891 in which, after stating jurisdictional
facts, ETC.. he alleges, in substance,
a mi M m
cutting said will the said testatrix was
unmarried; that afterwards on the 10th
day OF May. 1859, she iniermarrled with SAID
contestant; that taencefortn they lived toee her
as husband and wife until her death: that pc
cause Of said marriage said will was revoked
ana VOC, and prays that the probate OF SAID
VIII be set aside and the said will be declared
void and revoked. On the 18th day of May:
ISL. the proponents filei a demurrer 10 said
petition. alleging that IL does not state facts
SUFFICIENT TO constitute cause Of action
The sole question raised is, as TO whether or
not the said will was revoked the subsequent
lntermarri sc of the testatrix with the contest
ant. Section 2o6i, c. L. OF Utah, 1888. provides
as follows: Except IN cases III this chapter
mentioned. no written will. nor any part there
OF, can be revoked or altered otherwise than:
l. BY written will or other writing OF the tes-
tator. declaring such revocation. etc. 2. BY be-
ing burnt, torn. Cancelled, obllterated or de-
stroyed, with IN int Mt" etc This section is
followed by several others relating to the
manner in which a will mag be revoked but no
where do find section IN our statutes which
provides in express terms that the VIII or a
femme sole Is revoked by her subsequent marrl-
age. Ii then the viii In this case is revoked 1t
must be by an implle provision OF our statute
or by the rule of the common law. And now as
10 revocation by implication. Section 26I0,
common laws OF Utah, 1855, provides as fol-
lows: If after making VIII, the testa1or
marries, and the wife survive S the testator. the
will Is revoked, unless provision has been made
for her marriage Contract, or unieSs she is pro-
vided for in the will. or in such way mentioned
a show Intention
such provision; and no other evidence TO reout
the presumption Of revocation must be re-
ceived." 1t is commended by counsel for con-
testant that in constituting this statute the words
in the feminine should be construed TO include
the masculine. II this view be tenaole the
word wife must be construed 10 include hus-
band. and the same construction must be given
TO the word vile in the preceding section,
1868 Id.
In the Interpretation of statutes words in
common use will be given their popular mean
ing, unless they are defined in the act. or II is
manifest from the context that different mean
ing is intended.
After discussing the law at some length,
Judge Bartch says:
am thus persuaded that there is no statute
law in our territory, either express or implied,
whereby the will OF femme sole is revoked
upon her subsequent marriage. IL REM aims but
to be seen whether or not such a result Is ef-
fected by the rule OF the common law. And. for
the purpose OF argua II, suppose that the
California statute is ODllsSns and that the
maxim eJ1T6SsiO n7iUs est er-ins'0 ditsy7us does
not apply IN this case viii then the rule of thu
common law be in force:
In concluding the court says:
II therefore follows that TO hold the will of
a femme-so.e void byhsr subsequent marriage
would simply be TO impose up hec the unreason-
able task If she desired To exc else her rights
Of making another one like il during coverIure.
his would be 10 destroy ami restore the same
thing at the same time which is not the policy
of the law The inca pacity OF a married
woman. which was the destroying power of the
WILL having been removed by statute, the CON-
mon law rule with its reason has ceased and
the will OF femme-sole remains unrevoked by
her subsequent marriage.
Judge Powers was found by a HERALD
reporter in the afternoon, and when asked
if be intended to appeal, he replied: "Of
course We shall appeal, and if necessary we
will take the case TO the supreme court Of
the United States"