In Re Estate of Scott

148 P. 221, 170 Cal. 65, 1915 Cal. LEXIS 353

Opinion

At the close of the argument, Shaw, J., delivered the opinion of the court, Sloss, J., and Lawlor, J., concurring.

In this case the testator made a will in the following words.

“I give all my Earthly Positons both real and persnel to my wife Eliza V. Scott. Should she wish to marrie agane then then 75 per cent of the hole amount at my death will go to my children known as C. W. Scott of Detroit, Mrs. Thomas Ogg of Glendale of California, Cancel B. Scott of California, $5.00 five dollars to Mrs. C. B. Sayles of Detroit Michigan.”

The court.below held that this will did not contain a condition in restraint of marriage, and distributed the estate upon that construction, giving the widow a qualified estate conditional upon her remaining unmarried.”

The court is of the opinion that this was not a correct construction of the will and that the effect of the expression beginning with the words “should she wish the marrie agane” is that if she should marry she would by' that act forfeit seventy-five per cent of the estate given to her in the previous clause. This makes it a condition in restraint of marriage and therefore absolutely void under section 710 of the Civil Code. The first part of the will, the clause giving her all his estate, is the effective part of the will. '

The order is reversed.