Estate of Horgan

PEEK, J.

By her petition for final distribution of the estate of Myrtle Adams Horgan, deceased, the respondent executrix sought an order of the probate court decreeing that James Henry Horgan, the surviving spouse of said

[619]

deceased, was entitled to the use and benefit of certain property more particularly described hereafter, for the period of his natural life or until he should remarry. The appellant Horgan filed an answer and objections to said petition alleging that his interest in said property was absolute and unconditional and subject to no condition whatever. The court made its order in accordance with the petition of said executrix, and from the order so entered appellant has taken this appeal.

It is his sole contention that the devise of said property to him imposed a restraint upon his remarriage and hence is void under section 710 of the Civil Code, which provides as follows:

“Conditions imposing restraints upon, marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage. ’ ’

The specific paragraph of the will wherein is found the particular language which forms the basis of the disagreement of the parties is as follows:

“Fourth: To my beloved sister and niece, respectively Biddie Richmond and Elizabeth Richmond" Smith, in joint tenancy, or to the survivor of them, I give and device a life estate in and to M. A. H. the premises known as the Venetian Court Apartments, described as Lot Three (3) in Block One Hundred Forty-four (144), East of Center Street, being numbered and known as 1240 North Hunter Street, in the City of Stockton, California, including property either real, personal or mixed therein or about or appurtenant thereto, subject to existing encumbrances therein and subject to the following terms and conditions: There shall be reserved for the use and benefit of my beloved husband, James Hobgan, for the period of his natural life or until he shall remarry, with right of termination at his option, the apartment including property either real, personal or mixed therein or about or appurtenant thereto, on the second story at the northeast corner thereof, now known as Apartment No. 1 in said Venetian Court Apartments. My said husband shall have the absolute privilege and right during the said time to use or otherwise benefit by the occupancy or tenancy of said apartment without cost to him for rent, taxes or otherwise; subject to said life estate, said premises shall go to and belong to Thelma Richmond McGee, absolutely. M. A. H.”