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Show - - - -1 SETTLED AT LAST. The Decision in tbe Blazzard .-' Will Case. JUDGE EASE'S 0P15I0X. It Contains Many Points of Cos-sldcraule Cos-sldcraule Importance. In the Third District Court yea-terdsy yea-terdsy Judge Zane delivered bis opinion in the well-known Blazzard will case, which has occupied the Court's almost constant attention for the past month. His honor said: John Blszzardetal., plaintiffs, vs. Lucy D. Watts et al., defendant: In this case the plaintiffs ask that the court decree that the title to tbe real estate described in the complaint com-plaint Is In the plaintiffs, and that it order the defendants, or the person per-son having tho legal title, to execute exe-cute deeds to tbe plaintiffs. There are four other cases that weresuL-milted weresuL-milted at tlie same time that this one was, which involve substantially substan-tially the same questions. They all embrace two tracts of land, one In tbe Fourteenth Ward and the other in the8eventh Ward, in this city. It appears from the evidence that tbe late John IL Blazzard died on the Mb. day of January, 1S71. and that ho left surviving blm Sarah Blazzard (whom I find under the evidence was bb lawful wife), and his children, the plaintiffs by her; that he also left a plural wife by the name of Lydia Blazzard, and his children by her, who are made defendants, de-fendants, and another plural wife by the name of Mary Ison BLizzird. He was, at the time of his death and for years before, In possession ot the two pieces of land mentioned and described in the complaint, ou wnlcn no had made imorovementr. On the Seventh Ward tract Lydis was living at that time with her children, the defendants named. He had lived with her for a number num-ber or years, and until uithln a few years before his death, after which he resided with Mary Ison Blazzard, who was living en the tract sit uated in the Fourteenth Ward. H-had H-had to tills land the possessory right, with the right to occupy it and enjoy it, and to obtain a deed from tht-mayor tht-mayor by complying with the provisions pro-visions and enactment of tho terri torlal legislature with respect to townsite property. He also left a will, in wh'ch be 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 major ity, and he devised to Mary Ison Blazzard a life estzte in the Four tecnth Ward property with the right to live upon It and to rent such ir tlons of It as she did not occupy, the proceeds to be appropriated to hei own use, for her support and maintenance, main-tenance, and to aid in the support and malntenanceof Lydia Bbzzan. and her children, as their necisl-Ues necisl-Ues mhzht renuL-v. The question arises first, had the testator a devisable Interest in thU rroiwrty? The right to the posses slon and enjoyment of the properly and to obtain a deed by complying with the law, was a valuable one. It was a right that he hadagalnt all the world, except the Un'teu States, and I am of the opinion that it was a devisable interest. The continuance ot tho right and the interest of this estate depend, it i, true, upon the action of the persons to whom he willed It and left it possession of It. It was dependent upon iwssesstun. A question is also made as to the will, that It was not properly proo-ated proo-ated and proven. I am of the opinion opin-ion that al this Late day, at least, the will should be regarded as pro-erly pro-erly probated and proven In this case, by the evidence offered. The question then arises upon its construction. As has been stated, tbe life estates were given up by the will, and tbe uses mentioned. By tbe sixth clause the ueceascd disposed dis-posed of the remainder In the words: "All my estate, real and personal, after the same shall ccuw to be occupied and used for the support sup-port and maintenance of niy wives, and the support, maintenance anil education of my said children during dur-ing their minority, as herein provided, pro-vided, I will and bequeath to my said children, who may then b alive, and to the heirs of those win. may be dead, and to their heirs and assigns, taking by right of representation repre-sentation share and share alike; provided always, that If any of m said heirs shall not be members oi tho Church of Jesus ChrUt ot Latter-day Saints In good standing at the time the distribution shall bt made, tde share that should be com !ng to them shall go to the trustee-in-trust for said Church forthe ust of said Church, and no part oi parcel shall be distributed to such non-member." These two conditions, when tak- eu uigeuier, are conuiuous precedent prece-dent to the vesting of the remiluder in the devisees mentioned, and ll the conditions are void, then the law would be that It would not vent in them; but If, on the contrary, they constitute together a condition subsequent, then the remainder would vest, and It would not be divested di-vested by a void condition. So that it is important to determine whether the conditions mentioned are prece dent or subsequent; In other words, whether the remainder of thes-heirs thes-heirs is a continent 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 bo living this re malnder. The time referred U there is the termination of the life estate. There Is a difference ol opinion as to whether this time refers re-fers to the time that the will took effect, or to the time of the termiuu Uon of the life estate. Some courb-have courb-have held that, In view of this condition, con-dition, the remainder vests, subject to be determined upon the death ot any ono of the devisees named be-fore be-fore the termination of the ilf-estate. ilf-estate. That is based upon the fact that the courts favor the vesting of estates at once, without deferring them unless His necessary to do so. But this is coupled with another provision: "Provided always, al-ways, that If any of my said heirs shall not be members of the Church of Jesus Christ of Latter-day Saints in good standing at the time the distribution dis-tribution shall be made, tbe share that should be coming lo them shall go to the trus-ce-!n-lrust," etc. There the testator Indicates au understanding un-derstanding and intention on his part that before the Interest shoulu vest In tbe devisee in the language of the will, "that the share that should be coming to them shall go to the trustee-ln-trust." He diu not understand tint the share was to go to them before this distribution distribu-tion that he speaks of. It is sal i that that should be construed to mean that the right to the actual possession and use should not co to them Until then; that Itdld not mean to say that the remainder should not vest at once; but tbe language is that if they should not be members mem-bers of the Church of Jesus Christ of Latter-day Saints in good standing at the time the distribution shall be made, then tbe share that should como to tbem shall go to the Church. The general rule is that where the event In which tbe remainder Is to Testis one that must certainly hap. pen.tbat tbe title vests at once: but if it is an uncertainone, if it Is contingent, con-tingent, then the remainder does non Test antil tho contingency hap. pens. What a child's religion will be when he comes to form his religious re-ligious beliefs, if be ever forms any is a matter of conjecture. There li a great uncertainty about it a great many follow the religion or their fathers, others do not, and some do not have any religion at all, In an orthodox sense; some have a natural religion, as thev term it. ThU would seem to be an uncertain fact, and that, taken with tbe language used, leads Uie court to tbe conclusion that this remainder should not Teat until the time Tthe distribution occurs, and that tha testator understood by the tern dk! tritwUon tfeVttaM tM UeUal Sent remainder should vest In tbe evlsers mentioned. Tbe question then arises, Is this a Told condition? Reference has been made to tbe Constitution of the United States, first amendment, which provides that Congress shall make no law respecting tlie establishment estab-lishment or religion, or prohibit the free exercise thereof. That of course was a prohibition upon Congress. It Indicated the belief and the convictions con-victions of the American people with respect to the right of the government gov-ernment to establish religion, and to Interfere with the free exercise or it. They had in view the oppression op-pression and cruelty and barbarity that had been practiced by governments gov-ernments in pat times In attempting attempt-ing to form andsliapothe religious convictions of tho jieonl", and henco this provision is placed In the Constitution. They believed that the best interests of the American Ameri-can people required such a provl-slon provl-slon In their fundamental law. This can only have a bearing as indicating indicat-ing to some extent tho public policy, and what is right with respect to individual belief be-lief nud worship. It Indicated the conviction that every man should k at liberty to form his religious beliefs be-liefs and convictions without interference inter-ference by any one,except by moral leaching and persuasion, which Is tolerated of course. It Indicated that no law at le ist should be adopted adopt-ed on tho subject, and to some extent ex-tent it Is an indication that no Individual In-dividual should,by violence at least, or by intimidation, undertake to regulate the religious beliefs of others, or that lie should not, by bribes or rcwartls or pur'ment Interfere with them. N. ', it this provision auiQUuts toany-j!ng, It Is thl: This nun said to his children. "If yo't will Join tho Church of Jesus Chilst of Latter-day Stints, and so conduct yourself with respect to that Church as to be considered members in good standing of 11, when this estate b distributed, you can have all of this laud; that Is your reward. If you do nut, you are disinherited, and it shall go to another." Such in Oder as that would bo 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, and it also, with some, ill jht have a tendency to actually shape their convictions; be .use some people are so constituted that they believe what it b to their interest inter-est to believe; and tbb influence is a powerful ono In that direction with some. It would seem to me that the government gov-ernment through its court, which is tho instrumentality it employs to Interpret, construe and apply the law, should not sanction such a provision. While of course it is by making tlie law, yet it b saying to the man who makes it the will, liat he may make the law and the government will enforce it; that he may impose such a coudi.ion, such a rule, such a restriction Uu tils children, and that tbe government gov-ernment will give It all tlie forcu and effect of a law of tho land is lo him and to all others. That would seem to be contrary to uiu i ublic licy of this country, ind particularly as to this territory, with respect to thepartlcularChurcli to which llib property was to gu in case the devisee could not take it, end the Church to which these per-sons per-sons were required to belong. If there Is any one public policy that is established In this territory by the government of tlie United SUfes it stint polygamy and unlawful cohabitation co-habitation are wrng, and that they -hould be looted out, and cutout like a cancer, as an enemy to society, soci-ety, an enemy to humanity, an -nemy to one of the mot important Institutions upon which tha social fabric stands, the strongest pillar lu Uie grr-t fabric that shelters and protects us all, that protects virtue and chastity among men and women. wo-men. This Church, at the time til is will as made, recognized Jwlygamy as right, and held that In ceiLtlu con-ingencies, con-ingencies, aud under certilu con-lltiotis, con-lltiotis, that It was the duty of some ti practice IL The public policy ol H (iv rmm-nt t.f the United States, and of the laws relating to ..Hi territory enacted by Congress, against inducing anyone to em brace such a faith. It has by an act of Congress forfeited sceral hundred thousand of dollars worth if iroperty In order to suppress fiolygamy and unlawful cohablta-tlin, cohablta-tlin, and to tike away from the Chprch that recognized and taught -uch n doctrine the wner and means to extend the dominion of the Church, and to make proselytes Iu this and oilier laniK That being o, It certainly would be contrary to the public policy for the court to auction a n III, and nil wills by which Inducements of this klud ere given to persons to embrace) that faith. It Is directly o-,osed to the public policy of tliUTc Itoryas indicated by the laws of Congress and by the actions of tho courts. I am of the opinion that this provision pro-vision is void. These plaintiffs claim under n Iced or dec-Is executed by the mayor of Salt Like city, the testator, Joun H. Blazzard, appointed Mary Isou Blizzard his executrix, and he, In pursuance of the act of the territorial legislature and the townsite law of Congress, filed n claim with the probate court as ad-llnbtrntrlxofthe ad-llnbtrntrlxofthe estate of the late John Ulazztrd for and In bclralf of bo helM nf said estate; and in it she represented herself as administratrix adminis-tratrix of tho estate and not executrix. execu-trix. Tho hearing was sot don n for certain time; time given for per-ons per-ons to file counter-claims; and at the time mentioned, this order was made: "Mary I. Blazzard.admlnls-trilrix Blazzard.admlnls-trilrix ot the estste of J. H. Blazzard, claims all that part of lot (J, In block 69, etc," describing tho property. It further states that she appeared ontheSlstday of June, 1S72, and showed to the s-itisfflctlou of the court that she Is in trust the rightful owner aud occupant or said lands, and there being no adverse lalms, it Is ordered and adjudged thatsheasadiiiinbtratrix, is entitled to a deed to fee simple, iu trust, however, for the heirs or Uie estate orj.H. Blizzard. The proceedings esni to bo regular, and tho court ha 1 Jurisdiction or tho matter and tho lower to mako that order. In punuanceorthe order and of the law, Uie Mayor deeded thel'tnd to Mary Ison Blazzard, administratrix administra-trix or the estate of J. II Blazsanl, deceased, in trust for the heirs of uid estate, and concluded by saying: say-ing: "By these presents I do hereby here-by grant and convey unto the said Mary Ison Bbzzard, administratrix of tho estate ot tho late J. H. Blazzard, Blaz-zard, deceased. In trustfortho heirs orsald estate," tho laud described. The question b made hero Uiat the heirs or the estate meant tho persons entitled to tho estate under the will; that it did not mean his lawful heirs; that IMt had, the term would have been used "heirs or J.din H. Blazzard, deceased." Tho term heirs is a technical one, and embraces em-braces persons who are so related to the deceased, as in thb case, by consanguinity con-sanguinity or afflulty, as under the lw makes them heirs. Tho children, of course, would be heirs, by consanguinity, con-sanguinity, and the wire, where she may inherit, would bo an heir by therelitlonsliInofafflnitvunderUie law. That b the usual meaning given to it. It refers to the person to whom the law passes tbe estate in case of tho death of the person owning property. The proper term would have been here, the devisors. It b possible and probable that the parties to Uib deed did not take Into consideration that there were lawlul heirs alive, or they might have understood tliat the defendants jrere, If they did not know the facts, or they may have understood that it referred to the devisees. But under the law and Uie language used. I am of the opinion that this should be held to refer to tbe lawful heirs of JohnTI. Blazzard. The property is given In trust wWiout any further expression. It says, "la treat for tbe heirs of said state," which I am disposal to hold means the lawful heirs of John H. Blaasard. it b what Is sometimes some-times termed In equity a dry trust. It is not an aeUve trust; there s oJW,l the trustees to do. Itb t-t--fssssssssss-s.-H what is sometimes called a passive trust. The trustee b a passive agency or Instrumentality used through which theUtle passes lo the beneficiaries. The trustee. Is used as a conduit, so to speak, to pass tbe title, without requiring blm to do anything. One question b whether tha law execute) the tiust at once, and vests the legal title in the cestui que trusts or beneficiaries. The statute of uses in .England would execute it. It might not iiave done so at some periods, because it might have been regarded as a ue upon a use, hut not eo In this country. Hero the deed passes the ree, and the right to tho Klttii at once, and ths 'only trust here Is one In favor of the ctttul jue trusts. ThequesUon further is, Inasmuch as Mary Ison Blazzard continued in tho iwssetsiou of thb proterty. and never expressly at least renounced the trust, but continued to hold the possession and to exercise acts of ownership over tho property, and that the defendants continued to do so after her death (which was but a short time before thezultwas commenced), com-menced), whether she should be regarded re-garded as holdiug for these pbln-tifis, pbln-tifis, the lawful heirs, or whether she should bo regarded as holding adversely to them. If her rights and her possession are regarded as adverse to them, then the statute of limitations wcuH apply. Tho general rule of law Is that the statute of limitations does not run against an express trust, as thb i; and in that case the law Is Uiat the statute will not commence to run until the trustce.bysomotqulvo-cal trustce.bysomotqulvo-cal conduct, brought to the attention atten-tion of the cetluique trust, renounces renoun-ces thu trust. It Is said in this cae that Sarah Blizzard, tho lawful wife, several years previous to the death of John 11. Blazzard, on account ac-count or his cruel treatment towards her. and, there b evidence to show, partly on account of bis marrying another woman, left blm and went some three hundred miles Into tbe county of Washington, hear St. George, and lived there-J that they wcro ignorant, and neiUier sbo -nor her children were informed as to their rights, and that they never had any notice that Mary Ison Blazzird was holding thb property adversely to them, or holding it subject sub-ject to the provisions of thu will and not in accordance with the trust provided. I am of Uio opinion that where a trustee remains Iu po-sesslon and control or tho property, the statu tu of limitations will not apply, uulcsson accountof laches. Iu these cast 3 of equity tlio law by analogy applies thu statute of limitations very cfteu wbetc, as before stated, by unequivocal adverse possession, where tlie Irusteo has brought the fact to the attention of his beneficiaries bene-ficiaries that heb holdiug adversely to them, aud renouuees the trust, tho statute of limitations will be applied. ap-plied. 1 am of the opinion that the statute of llmitaUous should not apply ap-ply to the Fourteenth Ward tract. Tlie other tract stan-'s upon different dif-ferent principles. Lydia Blazzird was living uin that property. She was holding nud claiming to hold by virtue of the will. Uiat will professed to give her tho right to itie possession and usa or It, and immediately on her death, according ac-cording to Uie will. It pas-cd to theso heirs. She nud her children were in possession some elghteeu or nineteen years a possession that was hostile to the trustee under tbb deed. It is tiue that Lydia Itlazzard and her children recognized recog-nized Mary Ison Blazzard as the executrix ol Uie estate, and rccog-nized rccog-nized her as having some rights with res;ectto the property under the w III, and as executrix; but Uie evidence I think shows that Lydia for her children never recognized the rijht of Mary Ison Blazzird as trustee for these plaintiiT. Lydia claims by virtue of the will, and her children claim by virtue of the will. His true that tho will did not pass the tlUe to them, but they claimed It, nud held possession nccording to It; and If anyone had gone there and asked Ljdia Blazzard what her claim was to that property, she Hould have said that she claimed it because the will gave her the right to it, nud gave her children the right to It. I do not think tbe evidence Mould leave any room for doult on that point. She claims under tho provisions ot the will aud the plaintiffs claim under the provision of the deed. The deed they say gave Uie property prop-erty to them. Lydia Blazzard aud her children say that the will gives It to them. Their o-sesslou and claim was antagonistic, mid was hostile to the claim of Mary Ison Blazzird and Uiese ccsiul 'jui trurlsunde-r thoc'tcd. The question therefore arbes, will the statute of limitations by analogy apply to tbb case? Here is a hostile nossetslon and claim In direct conflict con-flict with the claim or these plaintiffs plain-tiffs and with Uie claim or Mary Ison Bbzzard. as she must have made it if she were hoMingfor the plaintiffs. Lydia Blizzard docs not claim under un-der the trust created by the deed. SliBCl.i:ns undir tho provisions of the will, and Uiat the will controlled the ri-rht aud should transfer It fioni Mary Isou Blizzard under me ueeel to Her, wlierezs, tlie plaintiffs claim that the deed passed It to them; and as I think that that provision of the statute of uses would anply which would pass the title to th'em if they demanded It, became I am or tbe opinion that that statute or uses is regarded as posting with the common com-mon Law into thb country, and tills territory, being settled up by the peoploorthe United States who had adopted Um common law, the common com-mon law was to be brought with them, as well as this statute of uses. But I um of the opinion that Inasmuch Inas-much as the posltl m of Mary Ison Blazzird to thb Fourteenth Ward property was at least equivocal, she' could le holding under the-deed or under the will; she might be claiming claim-ing under either, according to the provblons of the will or according to the provisions of the deed. Rightfully Right-fully she should havo held under tho provisions of the deed, which gavu It to the Iawf.il heirs, Init I am Inclined to the opinion that she understood herself to be holding according ac-cording to tbe provisions of tbe will, and "not under the deed. I am or tbeoplnion, tbereforc,and so find, that tlie statute of limitations limita-tions applies as to the tract In the Seventh Ward, held and possessed by Lydia Blazzird and her children, child-ren, and that ltdoee not apply to the property In the Fourteenth Ward. I am further of the opinion that John Blazzard, the imbecile Is not larretl by tbe statute of limitations; that he has a right to te one-fourth interest in all this property, and co far as the defendants have received the tents and profits of this Seventh Ward property, he Is entitled to one fourth of them, nnd to recover that against them. As to tlie Fourteenth Four-teenth Ward property, n far as Uicse defendants havo rrcelvedtho rents and profits, tho plaintiffs In this caearc entitled to recover. I am further of tho opinion that as to the FourtcenUi Ward property, so far as any alienations have been male, Uie purchasers took it without notice of tho rights of theso plaintiff-. |