29 Mich. 78 (Mich. 1874), Mandlebaum v. McDonell

Citation:29 Mich. 78
Opinion Judge:Christiancy, J.
Party Name:Mary A. Mandlebaum v. Donald McDonell and others
Attorney:G. V. N. Lothrop, Ashley Pond, and S. T. Douglass, for the complainant. C. A. Kent and C. I. Walker, for defendants.
Judge Panel:Christiancy, J. Cooley, J., and Graves, Ch. J., concurred. Campbell, J., did not sit in this case. Cooley, J. , and Graves, Ch. J., concurred. Campbell, J.
Case Date:January 29, 1874
Court:Supreme Court of Michigan

Page 78

29 Mich. 78 (Mich. 1874)

Mary A. Mandlebaum


Donald McDonell and others

Supreme Court of Michigan

January 29, 1874

Heard January 21, 1874

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Appeal in Chancery from Superior Court of Detroit.

Bill to quiet title. Defendants appeal. Affirmed.

This was a bill brought by complainant in the superior court for the city of Detroit to quiet her title to certain lots in the city of Detroit, on the north side of Fort street, known as lots 11 and 12 upon the Military Reserve, so called.

The bill sets forth all the facts, and they are not denied by any of the defendants, all but two of whom demur to the bill, one, who is a minor, answering by guardian, submitting the matter to the court, and one of them, Mr. Hodson, disclaiming all interest.

The superior court granted the decree for a release to complainant as prayed by the bill.

John McDonell died seized of the premises in October, 1846, leaving a widow, Ann McDonell, and the following named heirs, who, but for the will in question, would have inherited all his property, subject to the rights of the widow, viz.: three sons, Donald S., Alexander J., and Charles S., and one grandson, Francis McDonell Breckenridge (then a minor).

But the deceased left a will dated February 28, 1845, by which, among many other devises and bequests to the same and other parties, first, he gave to his wife (the said Ann McDonell) "all the rents and profits of my whole estate during her life-time, that is to say, if she so long continue to be my widow, on which condition she is to receive and enjoy all revenues arising from the rents of my estate or other property, so long as any portion of the same remains unsold; and no portion thereof is to be sold but in accordance with the directions of this, my will." Then (by the fourth item of his will) he declares: "Subject also to the like conditions and reservations hereinafter mentioned, I give and bequeath to Charles S. McDonell, Donald S. McDonell, Alexander J. McDonell, Francis McDonell Breckenridge" (who were the whole of his heirs at law), "Ellen Daily, and Ann Baxter,--that is to say, my three sons, grandson, my adopted daughter, and Goddaughter,--the net proceeds of the following parcels of property, when the same shall be sold according to the directions of this, my will" (then describing several pieces of real estate, among which are the premises in question, and proceeding as follows): "when the same shall have been sold in conformity to the directions of this, my will, the said net proceeds shall be divided share and share alike between my three sons, grandson, and adopted daughter" (again naming them), "and out of every one hundred and five dollars so derived and paid to them as above, the five dollars out of such amount shall be paid to my Goddaughter, Ann Baxter. The said Ellen Daily and Ann Baxter, to entitle each of them to the bequests herein specified, are to remain with, and take care of my wife, and she is to receive the said bequests for their respective benefits, so soon as any of the installments for which any part of said property is sold, shall be paid to and by my executors,--that is, to remain and take care of her so long as any of them remain unmarried; the rents derived from any portions of my estate and the moneys arising and paid over to my executors from any sales of property, they are required and directed to pay the same forthwith to my several devisees in accordance with the directions and the true intent and meaning of this, my will."

As to the motives which have guided him in making his will, the testator makes this declaration: "If my children were only prudent, wise and industrious, I would altogether prefer not to sell my property which I hold in the city of Detroit. I would prefer it should not be sold, but rather saved, that the one might be a protection to the other; indeed, if matters were different from what they are, I would prefer to have made no will. I have made this, my will, to prevent knaves and sharpers from filching my children out of the means acquired by my industry, designed for their comfort and happiness." In reference to the devise of this property, the will further declares, "the same to remain unsold until Francis McDonell Breckenridge shall be twenty-five years of age, or until twenty-one years from the date hereof, in case of his death, and not then to be sold in case my wife is still living, and that she remains my widow, and until after her death." * * * * "All the above designated property, real and personal, I do hereby give and bequeath, upon the express condition as in this will specified, to which my several devisees herein named are required to consent under their respective signatures, with the exception of Francis McDonell Breckenridge, a minor, in writing, before any such devisees shall be entitled to any portion of the bequest made to him or her, as the case may be; that it shall not be competent for any of my devisees hereinbefore named to either dispose of, alienate, mortgage, barter, pledge or transfer any portion of the real estate or any of the proceeds thereof, either directly or indirectly, upon any pretext whatever, before the same shall be actually paid by my executors to such devisees at the respective times and periods that any of the proceeds of my estate shall be paid into their hands. All documents or instruments whatever, executed by any of my devisees, which shall be in contravention of the true intent and meaning of this, my last will and testament, shall be deemed and be taken to be null and void and of no effect whatever. And it is my further intention that no proceedings whatever, either in a court of law or chancery, shall in any way impair or deprive any of my devisees of any of the bequests in this will made, before the same is actually paid into the hands of such devisees; inasmuch as any such bequest is only given on the condition in this will expressed. And it is my further will that in case my devisees, or a majority of them, should be so disposed at the expiration of the time that the property in the city of Detroit is designed to be sold, they need not sell the same unless their embarrassments in debt require them so to do; but this is to remain wholly optional with the majority of those devisees, or their heirs or guardians then living, to do at that time, when it shall arrive, what may seem to them for the best."

The will appoints as his executors his wife, Ann McDonell, the Catholic bishop of Detroit for the time being, Elon Farnsworth, Benjamin F. H. Witherell, and Charles Moran, none of whom qualified or accepted the position, except Mrs. McDonell and Witherell, by whom the will was duly proved and allowed in the probate court in November, 1846. Ann Baxter did not continue to live with the widow, and forfeited all right to the bequest given to her upon that condition.

Benjamin F. H. Witherell (one of the two executors who accepted and acted as such) died in 1867, and Ann McDonell, the other executor, died in February, 1873, having never again married after the death of the testator. Neither of them ever assumed to sell any lot or parcel of the land mentioned in the will, or ever did any act whatever affecting the title thereto.

But on the 10th of November, 1853 (during the life of the widow), said Donald McDonell, Alexander J. McDonell, with his wife, and Charles S. McDonell, with his wife, executed deeds (of that date) purporting each of them to convey to Oliver M. Hyde, his heirs and assigns, the undivided one-fourth of the premises in question (making three-fourths), subject to the life interest of said Ann McDonell in the same. On the 18th day of November, 1859, said Francis McDonell Breckenridge, with his wife, executed a deed to William Gray, his heirs and assigns, purporting to convey all their and each of their right, title and interest in said premises, either as heirs of said John McDonell, or his devisees under his will.

On the 7th of December, 1870, the said Ellen Daily, being then married, by her marital name of Ellen Smith, by her deed of that date, sold and conveyed to Mrs. Mary Gray, her heirs and assigns, all her right, title and interest in said premises.

By several mesne conveyances, all the right, title and interest conveyed by the several foregoing deeds were duly conveyed to and vested in the complainant before the filing of this bill.

And on the 7th day of December, 1871, the said Ann McDonell, the widow of the devisor, by her deed of that date, conveyed to the complainant all her right and interest in the said premises.

These conveyances have placed the whole title of the premises in the complainant, if it was competent for the several devisees and for the widow under the provisions and contrary to the restrictions contained in the will, to convey their several interests, under the circumstances stated, prior to any sale by the executors before the death of the widow.

In May, 1873, but after the death of Mrs. Ann McDonell, the defendant Nicholson was appointed administrator with the will annexed, of the estate, and now claims that all the foregoing deeds are void for want of power in the devisees to convey, and that he has the right now to proceed and sell the premises for the benefit of the devisees.

Decree of the superior court, overruling the demurrer and granting the relief prayed by the bill, affirmed, with costs.

G. V. N. Lothrop, Ashley Pond, and S. T. Douglass, for the complainant.

C. A. Kent and C. I. Walker, for defendants.

Christiancy, J. Cooley, J., and Graves, Ch. J., concurred. Campbell, J., did not sit in this case.



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