Eldred v. Meek, 183 Ill. 26, 55 N. E. 536, 75 Am. St. 86; Succession of Allen, 48 La. Ann. 1036, 20 South. 193, 55 Am. St. 295; Gilliam v. Chancellor, 43 Miss. 437, 5 Am. Rep. 498; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558, 37 Am. St. 135; Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. A. 33, 27 Am. St. 487; White v. Holland, 92 Ga. 216, 18 S. E. 17, 44 Am. St. 87; Gannaway v. Tarpley, 1 Cold. (Tenn.) 572.

If

Applying the rules as announced in the foregoing authorities to the particular provision of the will in question, what was the intention of the testator? He used the phrase, “but in the event of the said Leah Perks marrying again," and provided that, in such event, the particular bequest made for her should terminate and another be substituted therefor. If the testator had been living in and had been practicing the usual and customary domestic relations as they applied to those who accepted and practiced the monogamic system of marriage, then, no doubt, in using the term "marry again," it would be reasonable to suppose that he meant a monogamous marriage. The testator, however, was disposing of his own property, and he could impose any lawful condition upon any bequest that to him seemed proper. he thus believed in a peculiar system of marriage and practiced that system with the very person upon whose bequest he imposed the condition, it does not follow that he necessarily referred to a monogamous marriage only. In the absence of anything else in his will to indicate his meaning of "marry again," that term might refer to either system. But in his will he speaks of only one woman as his wife. The bequests in her favor are absolute and unconditional. But, when he refers to the appellant, he calls her by name merely, and then discloses that he has sustained certain relations to her by reference to the children of hers as being his offspring. He also refers to another woman in the same way, and imposes the same conditions upon the bequest made in her favor. It thus seems clear that it was the intention of the testator to make provision for his different families, and he thus provided homes for each one of them.

In case, however, that either one of the two women named should enter into the relation of marriage again, then the major portion of the bequests given to her should terminate and go to the children which were the issue of the marriage relation existing between the testator and the woman named in the particular bequest. In view of the time at which the

will was made and the state of the domestic relations then prevailing among many of the sect to which the testator and both women belonged, it is manifest that, in his view, to "marry again" did not exclude a polygamous marriage. From the findings of the court it is clear that such a marriage, as the testator viewed the relation, was quite as moral and binding with respect to the persons entering into it as any other marriage would be. This is important merely as showing that in the situation the testator was, and in view of his beliefs, there is no force to the contention that it must be inferred that he meant no other than a lawful marriage. While a polygamous marriage was prohibited in the then territory of Utah under Act Cong., March 22, 1882, c. 47, 22 Stat. 30. (U. S. Comp. St. 1901, p. 3633), amended by 1 Comp. Laws 1888, p. 110, sec. 22, still, according to testator's views, such a marriage was not only justifiable, but was in itself right and proper. It therefore cannot be held that he intended to provide against a statutory marriage merely, but it seems reasonably clear that he intended to provide against any marriage by which some other man should sustain the relation of husband to Leah Perks, regardless of whether she became a legal or a so-called plural wife. It is the relation generally that he was providing against, and not merely against the character of the relation. If the relation was created at all by reason of a marriage, whether monogamic or polygamous, the condition of the will applied. If this was the intention of the testator —and, to our minds, there is no escape from the conclusion—it is our duty to follow such intention whether it comports with our views of morals or propriety or not.

The bequest in the will in favor of appellant comes squarely within section 2795, Comp. Laws, 1907, which was in force

at the time the will was executed, and which provides: "A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated." The condition in the will was the subsequent marriage of appellant. If she married again, it would defeat the bequest, and another was to be substituted therefor. The court, as a conclusion of law, found that the relation she entered into with one Crabtree constituted a marriage such as the testator intended to provide against, and thus defeated the first bequest. We think the court was right in so concluding in view of all the circumstances and the terms of the will. From the authorities cited by us it is clear the court committed no error in admitting the evidence which is reflected in the findings and upon which the court based his conclusion that the testator,

by the phrase "marry again," under the circumstances, referred to a plural marriage.

We are forced to the conclusion, therefore, that the judg ment is right, and it accordingly is affirmed, with costs to respondents.

MCCARTY, C. J., concurs.

STRAUP, J. (concurring).

I concur.

The decisive question is: In what sense did the testator use the term "marry again?" Had he simply used the word "marry," I think it then could well be said that he intended to convey a meaning in the sense as such term is generally understood and defined, and hence it would not include a polygamous marriage. But the term "marry again" implies that Leah Perks had once been married. If she married at a second or another time, the bequest was I think, therefore, it was proper to inquire into her prior matrimonial relation and to ascertain what that Such relation appears to have been a polygamous marriage only. By the use of the term "marry again,"

defeated.

was.

the testator necessarily characterized such prior matrimonial

relation a marriage.

If he regarded such prior relation a

marriage, I have every reason to believe that he regarded a second polygamous marriage also a marriage, and hence intended that kind of a marriage, as well as a legal or monogamous marriage, to defeat the bequest.

HENKER v. LINDSAY.

No. 1924. Decided July 29, 1908, (97 Pac. 329).

APPEAL AND ERROR-FINDINGS-CONCLUSIVENESS. Where the only evidence in a case is the testimony of plaintiff and defendant, and the testimony of plaintiff tends to support the findings of the trial court, the findings will not be disturbed on appeal.

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Herman Henker against David Lindsay. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Stevens & Smith and N. J. Sheckell for appellant.

E. A. Walton for respondent.

STRAUP, J.

This action was brought by plaintiff, alleging that a partnership relation existed between himself and the defendant in the conduct of a business described in the findings, and that the defendant was indebted to him in the sum of $449 as plaintiff's unpaid share of the profits. Upon issues joined the cause was tried to the court, who found the following facts: (1) That in February, 1902, in the State of Washington, the plaintiff and the defendant entered into an equal partnership, and as such partnership engaged for the period of four months in the business of fitting and furnishing spectacles and glasses, and soliciting contracts for

the treatment of diseases by the Oregon Medical & Surgical Dispensary of Portland, Ore. (2) That said defendant agreed with plaintiff that the expenses and the profits of said enterprise should be divided equally between them. (3) That said business was conducted, and said partnership continued, for the period of four months, and the expenses have been paid, and the net proceeds of said business amounted and amounts to $1,550. That plaintiff has received $400 of the same, and no more, and the defendant has received $1,150. (4) That the defendant has had and retained $750 more than the plaintiff received, of which amount the plaintiff is entitled to one-half. (5) That demand has been made upon the defendant, which he has refused, for an accounting and payment. (6) That there is now due from the defendant to the plaintiff the sum of $375. Upon these facts judgment was rendered in favor of plaintiff and against the defendant in the sum of $375

and costs.

On appeal the defendant urges that findings 1, 2, and 3 are not supported by the evidence. The only evidence in the case is the testimony of the plaintiff and the deThe plaintiff gave testimony which tends to sup

fendant.

port the findings. His testimony, if believed by the court, was sufficient to support them. The defendant gave testimony tending to show that no partnership relation existed between himself and the plaintiff, and that the plaintiff was only his employee and assistant in the conduct of the busiWe see no good purpose in setting forth the substance of the conflicting testimony of the witnesses. Upon an examination of the record we are satisfied that there is sufficient evidence to support the findings.

ness.

The judgment is therefore affirmed, with costs.

MCCARTY, C. J., and FRICK, J., concur.