No. 14782
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF EARL E. ADAMS,
Petitioner and Respondent,
and
MILDRED A. ISSACSON ADAMS,
Respondent and Appellant.
MILDMD A. ISSACSON ADAMS,
Third Party Plaintiff and Appellant,
VIOLETTE AGNES SMITH,
Plaintiff in Intervention,
VS.
ALBERT A. ADAMS and HAZEL BAYERS,
Third Party Defendants.
Appeal from: District Court of the Fourteenth Judicial District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellants:
Lee Overfelt, Billings, Montana
For Respondents:
Berger, Anderson, Sinclair and Murphy, Billings, Montana
James, Gray and McCafferty, Great Falls, Montana
Submitted on briefs: November 7, 1979
Decided: ' E c 3 1 1979
;\PC 7 - ;-.7
Filed: L. - -,
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
his is an appeal from a judgment declaring a marriage
invalid entered by the Hon. Nat Allen, District Court,
Fourteenth Judicial District, Musselshell County.
On September 13, 1977, Earl E. Adams, now deceased, and
Mildred A. Isaacson Adams were married. They were first cousins.
The parties had known each other for the greater portion
of their lives and had always been on friendly terms. In later
years, when Earl's health was failing, he and his first
cousin, Mildred, were fairly constant companions. She
looked out for his needs. At the time of their discussions
about the possibility of marriage, he was 72 and Mildred was
67 years old. She was aware of the fact that their first cousin
relationship might be a problem, but he assured her that the
relationship would make no difference.
It was contended by Mildred that the marriage occurred
because Earl would have had to enter a nursing home if he
could not find someone to take care of him. As a part of
the marriage discussion, Earl offered to take care of Mildred
for the rest of her life, and to leave her everything he
owned. As evidence of his good faith, he named her as a co-
owner of twelve certificates of deposit, and they entered
into mutual wills.
On November 9, 1977, Earl fell and broke both of his
hips. He was hospitalized in Billings and later entered a
nursing home there. On November 30, 1977, he commenced an
action for a declaration of invalidity of his marriage to
Mildred, and changed the ownerships on the various certificates
of deposit so that he was the sole owner thereof.
While Earl's action against Mildred was pending, he
died on January 2, 1978. His estate is presently being
probated in Musselshell County. Whether Mildred is truly his
-2-
widow is a point for consideration in connection with the
probate proceedings.
Following Earl's death, Albert J. Adams and Hazel J.
Bayers, the co-personal representatives of his estate, were
substituted as party petitioners in the invalidity action.
Trial was held on March 31, 1978. Although Mildred
filed an answer and cross-complaint denying that she and the
petitioner were first cousins and denying that the marriage
was prohibited, at the trial she admitted that she and Earl
were in fact first cousins.
On May 25, 1978, the District Court entered a judgment
based on its finding that the marriage between the parties
was invalid - initio.
ab Appeal was properly taken, and the
matter is before this Court for submission on briefs without
oral argument.
We find that this marriage between first cousins is
void - initio and affirm the District Court.
ab
The matter is controlled by statute. Under section 40-
1-401(1) (b), MCA (formerly section 48-310, R.C.M. 1947), a
marriage between first cousins is specifically prohibited.
In this respect, the present Montana statutory law differs
from the Uniform Marriage and Divorce Act which does not
include marriage between first cousins as a prohibited
union. The public policy in Montana against marriages
between first cousins is buttressed by the provisions of section
40-1-402, MCA, which states when the District Court shall
enter its decree declaring the invalidity of a marriage
prohibited by law. That section provides in subdivision
(5), that "[u]nless the court finds, after a consideration
of all relevant circumstances, including the effect of a
retroactive decree on third parties, that the interests of
justice would be served by making the decree not retroactive,
- 3-
it shall declare the marriage invalid as of the date of
the marriage.. . ."
The foregoing provision of section 40-1-402(5), MCA,
in effect mandates a finding that the marriage is void -
ab
initio. The exception noted in section 40-1-402, MCA, that
the interests of justice would be served by making the
decree not retroactive is lacking in this case, the District
Court having made no such finding.
The action begun by Earl to invalidate the marriage did
not abate by reason of his death. Section 27-1-501, MCA. It
is lawful that the action be continued by his personal
representatives. However, Mildred contends that under
principles of estoppel the validity of her marriage to Earl
should be sustained.
Before the adoption of section 40-1-402, MCA, relating
to decrees declaring the invalidity of marriages, it was
proper for courts to examine in annulment cases whether the
marriage was void, or merely voidable. The distinction is
summarized by the author in Annot., 47 A.L.R.2d 1393 (1956),
entitled Marriage--Posthumous -
Attack, wherein it is stated:
.
".. . a voidable marriage is one affected by a
defect which can be cured by ratification
or confirmation, or by removal of a disability,
while a void marriage is one which the parties
have no power under any circumstances to ratify,
confirm, or validate." 47 A.L.R.2d at 1403.
Accordingly, this Court held in In Re Shun T. Takahashi's
Estate (1942), 113 Mont. 490, 129 P.2d 217, involving a
marriage between a Japanese man and a Caucasian woman,
that since the marriage offended Montana's then existing
miscegenation statute, it was completely void, could not be
cured by any later act of the parties and as such could be
attacked by the parties themselves or collaterally (in that
case by the public administrator). The force and effect of
the holding in Takahashi appears to have been modified by
the legislature by the adoption of section 40-1-402, MCA.
That statute declares that any action for a declaration of
invalidity of a prohibited marriage, including the marriage
of first cousins, may be brought "at any time prior to the
death of one of the parties". The parties that may bring
the action are also limited. The provision of section 40-1-
402(5), MCA, that the court may find after a consideration
of all the relevant circumstances that the interests of
justice require not making the decree retroactive, appears
to grant power to the district judge to make this determination
without regard to any distinction as to whether a marriage
is void or merely voidable.
With respect to estoppel, the equitable principles
which are applicable remain the same. To iterate, for
equitable estoppel to exist, there must be: (1) a false
representation or a concealment of facts, (2) made with the
knowledge, actual or constructive, of the facts, (3) to a
party without knowledge or means of knowledge of the facts,
(4) with the intention that it should be acted upon and (5)
reliance on the false representation to his or her prejudice
by the other party. Cedar Creek Oil & Gas Co. v. Fidelity
Gas Co. (9th Cir. 1957), 249 F.2d 277, cert.den. 356 U.S.
932, 78 S.Ct. 775, 2 L.Ed.2d 763; State ex rel. Howeth v. D.
A. Davidson & Co. (1973), 163 Mont. 355, 517 P.2d 722. In
this case, the evidence is that Mildred knew that a problem
existed with respect to validity of marriages between first
cousins, and certainly had equal means to discover the facts
concerning the law. Moreover, in the case of a marriage of
such short duration, it is difficult to perceive any real
prejudice. There is no equitable basis therefore to forestall
the application of the rule against the validity of this
marriage as of its date.
The judgment of the District Court is affirmed.
-5-
Justice
We Concur:
Chief Justice
,'
,
I-
Justices
I concur i n t h e r e s u l t b u t n o t i n a l l t h a t i s
stated. r'-
JUSTICE