A provision in the same language follows the bequest in favor of Leah Perks, which is made in favor of Mary Ann Jeff's, by which certain property is devised to her upon the same conditions as those imposed upon the bequest made in favor of Leah Perks. The testator died on or about August 17, 1883. The will, for some reason, was not admitted to probate until May 19, 1888, at which time it was duly established, and letters testamentary issued to one of the executors named in the will. No distribution of the estate seems to have been asked for or made until January 11, 1907, when Leah Perks, the appellant, as one of the beneficiaries under the will, filed a petition asking for distribution of the estate in accordance with the provisions of the will. In her petition, among other things, she set forth the provisions of the will as they affected her, and, in connection therewith, alleged that she had not married since the death of the testator, and was entitled to have her distributive share set apart to her. The executor of the will filed an answer to this petition in 291 which he, in effect, denied that the petitioner had not married again. He also filed a petition praying for distribution of the estate, but asked for distribution in some respects different from that prayed for by Leah Perks. The petition of the executor was joined in, and, in some respects, supplemented by some of the assignees of certain devisees under the will; and they affirmatively alleged that Leah Parks had married again since the death of the testator, and that, therefore, she was not entitled to the full share bequeathed to her in the will, but to that part only which was bequeathed to her in the event that she married again. Upon these issues a hearing was had to the court, who made findings of fact and conclusions of law. The findings of fact and conclusions of law, so far as material, are as follows: "That, by the terms and provisions of the last will and testament of said decedent, it is provided: [Setting forth the terms of the will in the language herein before stated.] That at the time of the making of said will, and at the time of the death of said decedent, the said Leah Perks, otherwise known as Leah Perks Poppleton, was the plural or polygamous wife of the said decedent; that both the decedent and said Leah Perks Poppleton were members of the Church of Jesus Christ of Latter-Day Saints, and believed in the teachings, doctrines, and practices existing at said time in said church, which at said time included the doctrine of polygamy or plurality of wives; that the children hereinafter in this paragraph mentioned are the children of the said decedent and said Leah

Perks Poppleton, and are the fruits of the said plural or polygamous marriage between said decedent and said Leah Perks Poppleton, and the following are the names and residences of said children, the youngest of which has long since attained his majority, to wit: Rachael P. Robinson, Edwin P. Poppleton, Albert L. Poppleton, Louisa P. Nielsen, and Katie P. Larsen, deceased. That after the death of the said decedent, and prior to the first day of October, 1889, the said Leah Perks Poppleton entered into another plural or polyg amous marriage with one Crabtree, and that she has never been legally married to any person since the date of 292 the death of William Poppleton, deceased. That said Leah Perks Poppleton has married again within the meaning of that expression as used by the decedent in connection with the devise to the said Leah Perks, otherwise known as Leah Perks Poppleton, and that the children of the said Leah Perks Poppleton and their grantees are entitled to the premises so devised or intended to be devised to the said Leah Perks Poppleton, except that the said Leah Perks Poppleton is entitled to retain the house in which she lives, as referred to in said will, and ten acres of land, on a part of which the house stands, with all the appurtenances thereto, to have and to hold for the term of her natural life, and at her death to go to her children by the said decedent as herein before named in the said findings of fact, and to their grantees, as provided in said will." Upon these findings and conclusions the court entered judgment awarding to Leah Perks that portion or share which she was given under the will in case she married again, and assigned the other parts to her children by the deceasel, or to their assigns. From this judgment Leah Perks appeals.

In his brief counsel for appellant states his contention thus: "Appellant contends that the word 'marriage' is a technical word, and has a well-defined legal meaning, and that, as used in the will, is capable of but one construction or interpretation." He further contends that the terms "marry" and "marriage" have so often been defined in the adjudicated cases that they have acquired a fixed legal meaning. From this he concludes that it necessarily follows that, when the testator imposed the condition in his will by which Leah Perks should be devested of a certain part of the property bequeathed to her in the event that she married again, the testator referred to and intended a marriage as the term is technically understood and applied. That is, by "marrying again" the testator meant that relation which a single man

and a single woman assume toward each other by entering into the marriage relation; and that he did not mean, and cannot be held to have meant, any other relation, although such other relation be called a marriage. In other words, the 293 marriage intended by the testator, he contends, was one the law permitted, and none other. In support of his contention he cites section 2777, Compiled Laws of 1907, which provides: "Technical words in a will are to be taken in their technical sense unless the context clearly indicates a contrary intention." This section, however, is but declaratory of the rule prevailing at common law, and is a rule of construction merely. Section 2767, Compiled Laws of 1907, provides: "A will is to be construed according to the intention of the testator." This section controls all other sections in which rules of construction are given, in that no rule provided for is to be given force and effect except for the purpose of ascertaining the real intention of the testator as expressed by him. This is the ultimate object to be kept in mind and to which all rules must yield. Rules of construction, therefore, are to be resorted to as mere aids or guides for the purpose of attaining the ultimate object-namely, the real intention of the testator. This intention is to be ascertained from the language used by the testator in the will. If the meaning is clear from the words used, a resort to rules of construction is neither necessary nor permissible. Where, however, the meaning of a word or phrase employed by the testator is not clear, and may be given either one of two or more meanings when read in the light of the whole instrument, the courts not only may, but are required to, look to the condition and circumstances surrounding the testator at the time the will was made, and in the light of these determine his true intention. Our duty, therefore, is to ascertain this intention. The elements which govern in ascertaining the intention of the testator are well illustrated in the following cases. In Kelley's Estate, 193 Pa. 58, 44 Atl. 292, Mr. Justice Dean states the law as follows: "There is no technical rule of construction which defeats the intent of the testator, if that intent be manifested by his words." In Adams v. First Baptist Church, 148 Mich. 140, 111 N. W. 757, 11 L. R. A., N. S., 509, 12 Ann. Cas. 224, the reporter in an exhaustive note to that case, at page 515 of 11 L. R. A., N. S., deduces the controlling 204 elements in this regard from a large number of English and American cases to be as follows: "In settling the meaning and effect of any provision in a last will and testament, the determining factor is the intention of the testator, and that

intention is ascertained not alone from the provision itself, but from a scrutiny of the entire instrument of which it is a part, and in the light of the conditions and circumstances in which the instrument came into existence. These rules of construction are of universal application throughout the United States and Great Britain."

In Clarke v. Boorman's Exrs., 18 Wall. (U. S.) 493, 21 L. ed. 904, Mr. Justice Miller, after referring to the various technical rules of construction, proceeds as follows: "To these considerations it is to be added that of all legal instruments wills are the most inartificial, the least to be governed in their construction by the settled use of technical terms; the will itself being often the production of persons not only ignorant of law, but of the correct use of the language in which it is written. Under this state of the science of the law, as applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much assistance than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself."

In Goebel v. Wolf, 113 N. Y. 412, 10 Am. St. Rep. 464, 21 N. E. 389, Mr. Justice Andrews, after stating the technical rules of construction, concludes as follows: "But the rule invoked, as others of like character, is subordinate to the primary canon of construction that the construction shall follow the intent, to be collected from the whole will, and that the intention of the testator, so ascertained, must prevail; and that general rules, adopted by the courts in aid of the interpretation of wills, must give way when on a consideration of the scheme of the will, or of special clauses or provisions, their application in the particular case would defeat the intention."

The following, among a large number of cases that could be cited, further illustrate and sustain the texts quoted above: 295 Eldred v. Meek, 183 Ill. 26, 75 Am. St. Rep. 86, 55 N. E. 536; Succession of Allen, 48 La. Ann. 1036, 55 Am. St. Rep. 295, 20 South. 193; Gilliam v. Chancellor, 43 Miss. 437, 5 Am. Rep. 498; Ducker v. Burnham, 146 Ill. 9, 37 Am. St. Rep. 135, 34 N. E. 558; Tilden v. Green, 130 N. Y. 29, 27 Am. St. Rep. 487, 28 N. E. 880, 14 L. R. A. 33; White v. Holland, 92 Ga. 216, 44 Am. St. Rep. 87, 18 S. E. 17; Gannaway v. Tarpley, 1 Cold. (Tenn.) 572.

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. If 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. 296 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