Carnahan v. Gupton , 109 Mont. 244 ( 1939 )

On motion for rehearing I have given further consideration to the questions determined in this case. The result of our opinion has always seemed unfortunate to me, since it defeats the wishes of the deceased with respect to who should have his property after his death. I was impressed with the justice and logic of the rule announced by the supreme court of Iowa in the cases cited in the foregoing opinion, but upon investigation I found that that court has itself repudiated the rule as announced in those cases and has expressly overruled them in the later case ofOrris v. Whipple, 224 Iowa, 1157, 280 N.W. 617, 624, and, as stated in the Orris Case, that court, too, has now "returned to the long and well established rule" and is "in step with our sister states, and supported by the great weight of authority." While there seems to me to be little, if any, reason for the rule so uniformly followed, yet it has been so firmly established and so long adhered to that if a change is desired I think it ought to emanate from the legislative assembly. I therefore concur in the order denying the rehearing.