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, apparently 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.
The cause celebre here was Wright, Jr.'s death before his mother Almira's. His three children, plaintiffs here, in a declaratory judgment action, asked the court to say that the interdiction in the will that Junior would have the property if he paid the funeral expenses and $100 apiece to his half-relatives, within six 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 *Page 567 could make the payments. This becomes a bit absurd, when anyone knows that had the property become worthless, tax-ridden 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.
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 conclusion when it subscribes to the propositions:
1. 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 sealed in perpetuity with a six-foot 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-kin say otherwise would be a blot on the family escutcheon, — it is not within their ken nor the con of this court to warp the King's English to defeat or infect the plainly expressed intention of the testator.
2. Apropos or perhaps inapropos of the main opinion's conclusion, one must pose the obvious question: There being three heirs here who seem 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 here, 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 asking 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 F. Wright, JUNIOR, would be through the Probate Court in the administration of the latter's estate, through a duly appointed representative, if he had any estate in the nature of an option or otherwise, — with a supporting order 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 non-probate case, whose result is to eliminate the probative midwife in favor of judicial abortion.
3. 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," justifying such a distortion of the plain language in the will that "the payment of money is not a personal act which could be rendered only by the devisee," *Page 568 — I 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 was either the devisee mentioned in the main opinion, — the deceased, — or his extended personality, — his executor. The main opinion condones the probate of a man's will in a simple civil suit, sans necessary notices to necessary and interested parties, without determining heirship, rights of creditors, estate tax problems, common sense or anything else.
This case should be returned to the trial court with instructions to order this matter processed in the Probate Division of the District Court under the statutory and other laws pertaining to wills and succession incident to disposition of decedents. *Page 874