Mandlebaum v. McDonell
Decision Date | 29 January 1874 |
Citation | 29 Mich. 78 |
Court | Michigan Supreme Court |
Parties | Mary A. Mandlebaum v. Donald McDonell and others |
Heard January 21, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
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),
As to the motives which have guided him in making his will, the testator makes this declaration: 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." * * * *
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.
Campbell, J., did not sit in this case.
We are first to enquire what estate, interests or powers under the...
To continue reading
Request your trial-
Givens v. Ott
...and subsequently may elect to take the real estate as land and not as personalty and thus dispense with the sale. The case of Mandlebaum v. McDonell, 29 Mich. 78, this point is exactly like this case; there the testator devised to his wife an estate for her life or widowhood; and then provi......
-
White v. White
...between user and alienation in the last named cases. Michigan is in line with California decisions. Starting with Mandlebaum v. McDonell, 29 Mich. 78, 18 Am.Rep. 61, Mr. Justice Christiancy held that a restraint on for any length of time was invalid. The time element was the only question b......
-
Wengel v. Wengel
...proposition that Michigan has a strong public policy against restraints on alienation. Id. at 281, 454 N.W.2d 85, citing Mandlebaum v. McDonell, 29 Mich. 78 (1874), and Braun v. Klug, 335 Mich. 691, 57 N.W.2d 299 (1953). In Watkins v. Green, 101 Mich. 493, 497, 60 N.W. 44 (1894), our Suprem......
-
Totten v. Pocahontas Coal & Coke Co.
...247, 251; Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am.Dec. 210; De Peyster v. Michael, 6 N. Y. 467, 57 Am.Dec. 470; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am.Rep. 61; Anderson v. Cary, 36 Ohio St. 506, 38 Am.Rep. Maker v. Lazell, 83 Me. 562, 22 A. 474, 23 Am.St.Rep. 795; Latimer v. Wad......