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Show MONDAY, APRIL 8. 1974 Continued from Page 61 ijfTERMOUNTAIN COMMERCIAL RECORD PAGE SEVEN In The Supreme Court Of The In most ,of the cases, however, in which the question has been directly presented, the condition introduced by the words "provided" or "providing" a certain age is attained has been held to be subsequent. In the case of Pedrajas v. Bloomfield Trust Co. 1 the testator gave the income from his estate to his wife for her life and upon her death to his son "provided however he shall have reached the age of twenty-fiv- e years." It was there held that the son took a vested interest in the estate at his father's death, subject to being dive ted should he die before reaching the age of twenty-fiv- e years. The case of Schrader v. Schrader3 is squarely in point with the instant matter. There the testator gave a life estate in all his realty to The will then provided: . . . lt is further my will that on the death of said Dora Schrader my well beloved son, George Schrader, shall become the sole, absolute and unqualified owner, on the condition hereinafter expressed, of the following It is the express condition described real premises: that before George Schrader shall become the sole, absolute and unqualified owner of said real premises that he shall pay to my well beloved son, Henry Schrader, the his wife, Dora Schrader. months after his own natural mother's death, which became impossible by his own premature death, inured to the benefit of his own children, plaintiffs, who, by some sort of subrogation could make the payments. This becomes a bit absurd, when anyone knows that had the property become worthless, or had the house burned down, the plaintiffs' presence in this court or that of the trial court, would have been minimal, infinitesimal, nondescript but mostly idiotic if in such event the property became worthless. lax-ridd- en The rhetoric of the briefs is interesting but somewhat unimpressive in their efforts to interpret the intention of a testator other than what he said, which in substance and specifically was this: "I give this to A if A does something I demand, but not if he doesn't," - and does not condition such imperative with an exception. There are a number of basic judicial fallacies in the main opinion's clusion when it subscribes to the propositions: sum of $500. The testator died in 1904. George died intestate in 1906 leaving a widow and one child. George did not pay the $500 to Henry before he died. Dora died in 1909. The court permitted the widow and daughter of George -- to pay the $500, saying: The testator's purpose, as indicated by the will, was to give his wife a life estate, subject to which he undertook to divide one piece of land between his three sons and to give the other tract to George, charged with a payment to be made to Henry. This will be effectively accomplished by permitting the defendants, as the widow and heir of George, to take the land, subject to the burden which the will imposes upon it. Such a holding works no wrong to any one a proposition which can hardly be affirmed of any other result. , That under a will, the testator, in specifically delegating an optional decision to a single person, by implication means three other people or any number of other people depending on fecundity, who may exercise the option. This might be true if the testator had used three little words, - not "I love you," - but "and his heirs," - which T did not do, - and the law on wills and succession quite universally and not unusually has said that if T's language is clear and unambiguous, and certain, and understandable, and honest, beautiful and true, and grammatically unimpeachable the courts must respect it and not force words through the lips of one whose lips are Bealed in perpetuity with a six-fo- ot underground assist, - and without a mouthpiece. There being three eager inheritors here, all of whom affectionately do not subscribe to an interpretation of what their half-ki- n say otherwise wc;ul-.- i oe a blot on the family escutcheon, - it is not within their ken nur the con of this court to wrap the King's English to defeat or infect the plainly piessed intention of the testator. --- matter it seems clear that the testator intended to con- 1. ... In the instant State Of Utah give the home to Junior upon the death of Almira subject to a divestment if he failed to make the required payments within six months after the death of Almira. Since there is nothing personal about the payment of money, the interest of Junior would descend to his heirs. 2. 137 A. 86, affirmed in 139 A. 18 (N.J. 1927). 3. 139 N.W. 160, 162 (Iowa 1912). The judgment is reversed and the case is remanded with directions to enter judgment for the appellants. Costs are awarded to appellants. WE CONCUR: E. R. Callister, Jr., Chief Justice J. Allan Crockett, Justice R. L. Tuckett, Justice 2. Apropos or perhaps inapropos of the main opinion's conclusion, one must pose the obvious question: There being three heirs here who stern to want a house in which they or either of them apparently did not contribute any of their lives' savings, suppose only one was plaintiff heTe, the second was not a party plaintiff, but a third party defendant, with a counterclaim, and the third was no party and completely disinterested in the outcome, -and that it was demonstrated that there were nine other heirs of Wright, Jr. , not Sr. , who were not joined in this action, and didn't want to be joined? Under the decision of this court as reflected in this opinion, - which of those heirs would get what? Would each be subject to pay off a mortgage or lien on the house, and who would decide their individual rights or obligations? The obvious answer is that this lawsuit cannot decide any of those rights, since this suit is a civil suit and is not pursued under a probate proceeding, although the caption of this case deceptively is number "Probate No. 53886." As a matter of cold fact, it is not a probate case at all, but a civil suit ask- ing for an interpretation of a will arising out of an independent proceeding, in Probate No. 9229. The only way the rights of the party plaintiffs in this case possibly could be established, claiming as heirs of George Y. Wright, JUNIOR, would be through the Probate Court in the administration of the latter1 s estate, through a duly appointed representative, if he had any estate in the nature of an option or otherwise, - with a supporting oider of a Probate Judge, after a full determination of the facts of death, names and addresses of heirs, properly notified, and by notice to creditors of Wright, a hearing, with taking of testimony, under oath, etc. The brutal down to-, earth fact of this case is that it is an abortive probate proceeding disguised in a case, whose result is to eliminate the probative midwife in favor of judicial abortion. -- HENRIOD, Justice: (Dissenting) non-prob- I respectfully dissent. This is a dispute over the terms of a will, executed by George F. Wright, Sr. , in 1948, who died in 1956, after which his estate was probated under Probate Case No. 9229, in the District Court of Weber County, Utah, resulting in a decree of distribution as set forth in the main opinion. Briefly he left his house, apparent ly the only or principal asset, to his second wife for her life, and then to his son by her, if his son did what was said he had to do under the will, i. e. , "Provided HE pays, within six months after HER death, $100 each to six children by a previous marriage. That is all that he said and all that he said was so clear and unequivocal as to leave no doubt whatever. Controversy here, in my opinion, .unwarrantedly seems to stem from the simple, clear language of the will which I am convinced was misinterpreted by the main opinion based on the facts. ate When the .main opinion opines that "The trial court was in error in thinking the will required a personal act on the part of the Junior, " mstt- fying such a distortion of the plain language in the will that "the payment of i , " money is not a personal act which could be rendered only by the , 3. H- - can only say I think there is another abortion aborning, - popular these days, - and is an ipse dixit that aborts the plain meaning of the clear English language. The only person who possibly could have exercised the option here or was either the devisee mentioned in the main opinion, - the deceased, the main The condoned his extended personality, his executor. opinion sans notices to a in of will a man's suit, civil, necessary simple probate and without interested determining heirship, lights of necessary parties, creditors, estate tax problems, common sense or anything else. I This case should be returned to the trial court with instructions to The causa celebra here was Wright, Jr. 's death befoze his mother Almira' order this matter processed in the Probate Division of the District Court His three children, plaintiffs here, in a declaratory judgment action, asked the under the statutory and other laws pertaining to wills and succession inwould if the have will the in the that Junior interdiction court to say that property cident to disposition of decedents. within six he paid the funeral expenses and $100 apiece to his i . half-relativ- es, Principal John Ray Metcalf, Plaintiff and Appellant, B. Wall Counsel: Gregory Brant Wall 500 Judge Bldg.,SLC v' H. Samons, Inc. , a Utah corporation, and LeVon P. Dormeyer, Defendants and Respondents. Counsel i Worsley, Snow ft Chrlstensen Raymond M. Berry HENRIOD, Justice: Agent Theory Does Not Apply Metcalf, an employee of Samons, was asked by the latter1 s manager to run an errand for the store, With the understanding that Metcalf would be paid milage for using his own car, nothing else. While on the errand, he had a collision, and now asks his employer, Samons to pay the damage, on a principal-age- nt theory, - that he was in the course of doing something on behalf of his employer. ' No. 13486 FILED March 25, 1974 L. M. Cummings, Clerk Appeal from a summary judgment against plaintiff. costs to defendant. Affirmed with No. 13227 FILED March 29, 1974 L. M. Cummings, Clerk Manuel Salas appeals from an order of the juvenile court certifying that he be held for criminal proceedings in the district court, as provided U. C. A. 1953, as amended 1971, A motion for certifiin Section criminal for cation proceedings was filed in the juvenile court, wherein, it Salas was over the age of fourteen years, that he Manual was alleged that had committed acts which if committed by an adult would constitute a felony, namely, burglary and assault with a deadly weapon, that he was dangerous to himself and to others. The motion further alleged that Salas had been on probation and that all programs for rehabilitation by the juvenile court had 55-10-- 86, nt way was negligent. SLC State of Utah, In the interest of Manuel Salas a person under 18 years bf age. CALLISTER, Chief Justice: There was nothing in the master-servaagreement here, calling for such an indemnity, and there is nothing to indicate that Samons in any con authority for plaintiff's urgence to extend the agency 1 but to four there is its the tract beyond corners, authority contrary. We find no been exhausted other than the industrial school, that because of the nature of the offenses' committed and his age, it was unlikely that the industrial school had any programs to provide proper rehabilitation for him or that the school could contain him. Upon hearing, Salas, who was represented by counsel, was certified to be tried as an adult. The court ruled that it would be contrary to the best interests of the child or the public for the juvenile court to retain jurisdiction. The record indicated that prior to the present charges, Salas had admitted committing burglaries. At the time. of the commission of the curwas within four months of his 18th birthday and was on rent charges, Salas probation from a suspended commitment to the industrial school. In connection with this suspension, the court had ordered Salas to complete certain work. One of the reasons cited by the court to support the certification order was the failure of Salas to complete the work order or to seek modification five-othe- r - (Continued on Page 8) |