| Show A CELEBRATED CASE Judge Zanes Decision in the Biazzard Will Case A VERY INTERESTING OPINION Some Very Important Questions Decided The Judge Expounds His Views on the Subject of Polygamy The celebrated case of John Blazzard et aL vs Lucy D Watts et aI better known as tho Blazzard will case was finally decided de-cided by Judge Zano yesterday morning The opinion wd one of the most important ever rendered here some of the most intricate in-tricate questions known to the law of real estate were involved and a perusal of the opinion which is published in full will bo profitable and interesting John Biazzard et al plaintiffs vs Lucy D Watts et al defendants Opinion Zane J In this case the plaintiffs ask that the court decree that the title to the real estate described in the complaint is in the plain I + IIf f 1 + 1 + + 1r f UU 1 u I v Ut iUU ut utuau the person having the legal title to execute deeds to the plaintiffs There are four other cases that were submitted at the same time that this one ts as which involve substantially the same questions They all I embrace two tracts of land one in the Fourteenth ward and the other in the war Seventh ward in this city It appears from the evidence that the late John 11 Biazzard died on tho 14th day of January 1871 and that he left surviving him Sarah Biazzard whom I find under the evidence was his lawful wife and his children the plaintiffs by nor that he also left a plural wife by the name of Lydia Blazzard and his children by her who are made delendants and another plural wife by the name of Mary Ison Blazzard He was at tho time of his death and for years oefore in possession ot the two pieces of land mentioned and described in the complaint on which he had made improvements On the the Seventh ward tract Lydia was living at that time with her children tho defendants named Ha had lived with her for a number num-ber of years and until within a few years before his death after which he rodided with Mary Ison Blazzard who was living on the tract situated in the Fourteenth ward He had to tnls land tne possessory right with the right to occupy it and enjoy it and to obtain 1 deed from the mayor by complying with the provisions of tho enactment enact-ment of the territorial legislature with n nnn 4 + n nnn an n nnn t Un n n Inff uuno 0 uv vu a will in which no expressly devised to Lydia Blazzard a life estate in the Seventh ward property for the benefit of herself and her children until they should reach their majority and he devised to Mary Ison Biazzard a life estate in the Fourteenth ward property with the right to live upon it and to rent such portions of it as she did not occupy proceeds to be appropriated to her own use for her support and maintenance main-tenance and to aid in tho support and maintenance of Lydia Blazzard and her children as their necessities might require The question arrises first had the testator queston arrses frst tator a devisable interest in this property J The right to the possession and enjoyment of the property and to obtain a deed by complying with the law was a valuable one It was a right that he had against all I the world except the United States and I am of the opinion that it was a devisable interest The continuance of the right and the interest in this estate depend it is true upon the action of the persons to whom ho willed it and left in possession of i I was dependent upon possession A question is also made as to tho will aso wi that it was not properly probated and I proven I am of the opinion that at this late day at least the will should be regarded as properly probated and proven in this case by the evidence offered The question then arises upon its construction con-struction As has been stated the life estates es-tates were mAn nn hv the will and thn uses mentioned By trio sixth clause the deceased disposed of the remainder in these words HAl my estate real and personal per-sonal after the same shall cease to bo occupied occu-pied and used for the support and maintenance mainte-nance of my wives and the support main nance and education of my said children during their minority as herein provided I will and bequeath to my said children who may then be alive and to the heirs of those who may be dead and to their heirs and assigns taking by right of representation representa-tion share and share alike provided always al-ways that i any of my said heirs shall not be members of the Church of Jesus Christ of Latterday Saints in good standing stand-ing at the time the distribution shall be made the share that should be coming to them shall go to tho trusteeintrust for said church for the use of said church and no part or parcel shall be distributed to such nonmember These two conditions when taken together to-gether are conditions precedent to the vesting of the remainder in the devisees mentioned and if tho conditions are void then the law would be that it would not vest in them but i on the contrary they constitute together a condition subsequent then tho remainder would vest and it would not be divested by a void condition So that it is important to determine whether the conditions mentioned are precedent or subsequent in other words whether the remainder to these heirs is 1 contingent remainder or a vested one The provision is that after the life estate shall cease he wills and bequeaths to his children who may then be living this remainder The t time referred to there is the termination of the life estate There is I difference of I opinion as to whether this time refers to the time that the will took effect or to the time of the termination of tho life estate Some courts have held that in view of this condition the remainder vests subject to be terminated upon the death of any one of the devisees named before the termination of the life estate That is based upon the fact that the courts favor the vesting of estates at once without deferring them unless it is necessary to do so But this is coupled with another provision pro-vision Provided always that i any of my said heirs shall not be members of the church of Jesus Christ of Latterday Saints in good standing at tho time the distribution shall bo made the share that should be coming to them shall go to the Trusteeintrust etc There the testator indicates an understanding and intention on his part that before the interest should vest in tie devisee in the language of the will that the share that should be coming to them shall go to the Trusteeintrust He did not understand that the share was to go to them before this distribution that he speaks of Itis said that that should be construed to mean that the right to tie I actual possession and use should not go to them until then that it did not mean to say that the remainder should not vest at once but the language is that if they shall not be members of the church of Jesus Christ of Latterday Saints in good standing stand-ing at the time the distribution shall be made then the share that should come to them shall go to the church The general rule is that where the event in which the remainder is to vest is one that must certainly happen that the title vests at once but i it is an uncertain one i it is contingent then the remainder does I not vest uutill the contingency happens I What a childs religion will be when ho comes to form his religious beliefs if he ever forms any is a matter of conjecture There is a great uncertainty about it A great many follow the religion of their fathers others do not and some do not have any religion at all in an orthodox sense some have a natural religion I relgion as they term it This would seem to be an uncertain uncer-tain fact and that taken with the language lan-guage used leads the court to the conclusion conclu-sion that this remainder should not vest until the time the distribution occurs and that the testator understood by the term distribution the time that the contingent remainder should vest in the divisees mentioned men-tioned tonel The question then arises is this a void condition 1 Reference has oeen mado to the constitution of the United States first amendment which provides that Congress shall make no law respecting the establishment establish-ment of religion or prohibiting the free exercise thereof That of course was a U prohibition upon Congress I indicated I 1 the belief and the convictions of the American Amer-ican people with respect to the right of the government to establish religion and to interfere with the free exercise of it They had in view the oppression and cruelty and barbarity that had been practiced governments goV-ernments in past times in attempting to form and shape the religious convictions of the people and hence this provision is placed in the constitution They believed I that the bestinterests of the American people I peo-ple required such q provision in their fundamental fun-damental law This can only have a bearing bear-ing as indicating to some extent the public policy and what is right with respect to individual belief and worship I indicated indi-cated the conviction that every man should be at liberty to form his religious beliefs and convictions without interfercLce by anyone except by moral teaching and persuasion which is tolerated of course I indicated that no law at least should be adopted on the subject and to some extent it is an indication that no individual should by violence at least 01 by intimidation undertake to regulate tho religious beliefs of others or that he should not by bribes or rewards or punishment interfere with them Now if this provision provi-sion amounts to anything it is this This man said to his children I you will join the Church of Jesus Christ of Latterday Saints and so conduct yourself with respect re-spect to that church as to be considered members in good standing of it when this estate is distributed you can have all of this land that is your reward If you do I not you are disinherited and it shall go to another Such an offer as > that would be a powerful inducement with some people with others it would not be probably The tendency of such provisions is to make the heirs or the children confess at least that they are members of the church mentioned I men-tioned and it also with some might have a tendency to actually shape their convictions convic-tions because some people are so constituted consti-tuted that they believe what it is to their interest t believe and this influence is a powerful one in that direction with some I would seem to me that the government through Its court which is the instrumon mentality it employs t interpret construe and apply the law should not sanction such a provision While of course itis by malting malt-ing the law yet it is saying to the man who makes it the will that he may make the law and the government will enforce it that he may impose such a condition such a rule such a restriction upon his children and that the government will give it all the force and effect of alaw of the land as to him and as to all others That would seem to be contrary to the public policy of this country and particularly as to this territory tory with respect to the particular church to which this property was to go in case the devisee could not take it and tho church to which these persons were required re-quired to belong I there is any one public policy that is established in this territory by the government of the United States it is that polygamy and unlawful cohabitation are wrong and that they should be rooted out and cut out like a cancer as an enemy to society an enemy to humanity an enemy to one of the most important institutions upon which the social fabric stands the strongest pillar in the great fabric that shelters and protects us all that protects virtue and chastity among men and women This church at the time this will was made recognized polygamy as right and held that in certain contingencies and under un-der certain conditions that it was the duty of some to practice it The public policy of the government of the United States and of the laws relating to this territory enacted by Congress is against inducing anyone to embrace such a faith It has by an act of Congress forfeited several hundred hun-dred thousands of dollars worth of property prop-erty in order to suppress polygamy ana unlawful un-lawful cohabitation and to take away from the church that recognized and taught such a doctrine the power and means to extend the dominion of the church and t make proselytes in this and other lands That being so it certainly would be contrary to the public policy for the court to sanction a will and all wills by which inducements of this kind were given to persons to embrace em-brace that faith I is directly opposed to the public policy of this territory as indicated indi-cated by the laws of Congress and by the actions of the courts I am of the opinion that this provision is void These plaintiffs claim tfndor a deed or deeds executed by the mayor of Salt Lake city the testator John H Blazzard appointed ap-pointed Mary Ison Biazzard his executrix and she in pursuance of the act of the territorial ter-ritorial legislature and the townsite law of Congress filed a claim with the probate court as administratrix of the estate of the late John Blazard for and in behalf of tho heirs of said estate and in it she represented repre-sented herself as administratrix of the estate es-tate and not executrix The hearing was set down for a certain time time given for persons t tile counterclaims i and at the time mentioned this order was made Mary I Biazzard administratrix of the estate of J H Biazzard claims all that part of lot 6 in block 09 etc describing the property It further states that she appeared on the 31st day of Juno 1S72 and showed to the satisfaction of the court that she is in trust the rightful owner and occupant occu-pant of said lands and there being no adverse ad-verse claims i is ordered and adjudged that she as administratrix is entitled to a deed in fee simple in trust however for the heirs of the estate of J H Blazzard The proceedings seem to be regular and tho court had jurisdiction of the matter and the power to make that order In pursuance of tho order and of the law the mayor deeded the land to Mary Ison Biazzard administratrix of the estate of J H Blazzard deceased in trust for the heirs of said estate and concludedby saying say-ing By these presents I do hereby grant and convey unto the said Mary Ison Blaz zard administratrix of the estate of the late J H Biazzard deceased In trust for the holrs of said estate the land described de-scribed The question is made here that the heirs of the estate meant tho persons entitled to + hn estate 1nfla + tll win tHat if A 1 rl f taeesta e unuer Wl i did not mean his lawful heirs that if it had the term would have been used heirs of John H Blazzard deceased The term heirs is a technical one and embraces persons who are so related to the deceased as In this case by consanguinity aflinity as under consanguir1tYQr the law makes them heirs The children of course would be heirs by consanguinity con-sanguinity and the wife where she may inherit would bean be-an heir by the relationship of affinity under the law That is the usual meaning given to it It refers to the persons per-sons to whom the law passes the estae incase in-case of the death of the person owning property The proper term would have been here the devisors It is possible and probable that tho parties to this deed did not take into consideration that there were lawful heirs alive or they might have understood un-derstood that the defendants were i they did not know the facts or they may have understood that it referred to tie doviaees But under the law and the language used I am of the opinion that this should be held to refer to the lawful heirs of John H Blazzard I The property is given in trust without any further expression I says In trust for the heirs of said estate which I am disposed to hold means the lawful heirs of John H Blnzzard I is what is sometimes some-times termed in equity a dry trust It is not an active trust there is nothing for the trustee to do It is what is someUmes called 1 passive trust The trustee is 1 passive agency or instrumentality used through which titlejiasaes to the bene liciaries The trustee is used as a conduit so to speak to pass the title without requiring re-quiring him to do anything One question is whether the law executes the trust at once and vests the legal title in the cestui quo trusts or beneficiaries The statute of uses in England would execute i I might not have done so at some periods because it might have been regarded as a use upon a use but not so in this country Here the deed passe the fee and the right to the seisin at onco and the only trust here is one in favor of the cestui quo trusts The question further is inasmuch as Mary Ison Blazzard continued in the possession pos-session of this property and never expressly ex-pressly at least renounced the trust but continued to hold the possession and to exercise ex-ercise acts of ownership over the property and that the defendants continued to do so after her death which was but a short time before the suit was commenced whether she should be regarded aa holding for these plaintiffs the lawful heirs or whether she should be regarded as holding adversely to them If her rights and her possession are regarded as adverse to them then the statute of limitations would apply The general rule of law in that the statute of limitations does pot run against an 01 ftu > < 9 press trust as this is and in that case the law is that the statute will not commence to run until the trustee by some equivocal conduct brought to the attention of the cestui quo trust renounces the trust It is said in this case that Sarah Biazzard the latvful wifo several years previous to the death of John H Biazzard on account of his ciuel treatment towards her and there is evidence show partly account of his marrying other women left him and went some three hundred miles into the county Washington near St George and lived there that they were ignorant and neither she nor her children wore informed as to their rights and that they never had any notice that Mary Ison Biazzard was holding this property adversely to them or holding it subject to the provisions of the will and not in accordance with the trust provided I am of the opinion that where a trustee remains in possession and control of the property the statute of limitations will not apply unless on account ac-count of laches In these cases of equity the law by analogy applies the statute of limitations very often where as before stated by unequivocal adverse possession where the trustee has brought the fact to the attention of his beneficiaries that ho is holding adversely to them and renounces re-nounces the trust the statute of limitations limita-tions will be applied I am of the opinion that the statute of limitations should not apply to the Fourteenth ward tract The other tract stands upon different principles Lydia Biazzard was living upon that property She was holding and claiming to hold by virtue of the will That will professed to give her the right to the possession and use of it and immediately im-mediately on her death according to the win it passea to tnese neirs t > ne ana nor children were in possession some eighteen or nineteen years a possession that was hostile to the trustee under this deed It is true that Lydia Biazzard and her children recognized recog-nized Mary Ison Biazzard as the executrix of the estate and recognized her as having some rights with respect to the property under the will and as executrix but the evidence I think shows that Lydia for her children never recognized the right of Mary Ison Biazzard as trustee for these plaintiffs Lydia claims by virtue of the will and her children claim by virtue of the will It is true that the will did not pass the title to them but they claimed it and held possession according to it and if any one had gone there and asked Lydia Biazzard what her claim was to that property prop-erty she would have said that she claimed it because the will gave her the right to it and gave her children the right to it I do not think the evidence would leave any room for doubt on that point She claims under the nrovisions of the will and the plaintiffs claim under the provision of the deed The deed they say gave the property prop-erty to them Lydia Biazzard and her children say that the will gives it to them Their possession and claim was antagonistic antagon-istic and was hostile to the claim of Mary Ison Biazzard and these cestui quo trusts under the deed The question therefore arises will the statute of limitation by analogy apply to buia udauz CLUIU la u iiuauiiu puaocsaiuu auu claim in direct conflict with the claim of these plaintiffs and with the claim of Mary lana Biazzard as she must have made it if she were holding for the plaintiffs Lydia Biazzard does not claim under the trust created by the deed She claims under the provisions of the will and that the will controlled the right and should transfer it from Mary lana Biazzard under the deed to her whereas the plaintiffs claim that the deed passed it to them and aa I think that that provision of the statute of uses would apply which would pass the title to them if they demanded it because I am of the opinion that that statute of uses is regarded as passing with the common law into this country and this territory being settled up by the people of the United States who had adopted the common law the common law was to be brought with them aa well as this statute of uses But I am of the opinion that inasmuch as the position oi Mary Ison Blizzard to this Fourteenth ward property was at least equivocal she could be holding under the deed or under the will she might be claiming under eitHer according to the provisions of the will or according to the provisions of the deed Rightfully she should have held under the provisions of the deed which gave it to the lawful heirs but I am inclined in-clined to the opinion that she understood herself to be holding according to the pro viqinnR nf the will and not under the rif > f > < 3 I am of the opinion therefore and so find that the statute of limitations applies as to the tract in the Seventh ward held and possessed by Lydia Biazzard and her children and that it does not apply to the property in the Fourteenth ward I am further of the opiniotfthat John Biazzard thoimbecile is not barred by the statute of limitations that ho has a right to a one fourth interest in all this property and so far as the defendants have received the rents and profits of this Seuonth ward property he is entitled to onefourth of them and to recover that against them As to the Fourteenth ward property so far as these defendants have received the rents and profits the plaintiffs in this caso are entitled to recover I am further of the opinion that as to the Fourteenth ward property so far as any alienations have been made the purchasers took it without with-out notice of the rights of thcso plaintiffs |
