Bennett v. Chapin
| Decision Date | 08 November 1889 |
| Citation | 77 Mich. 526,43 N.W. 893 |
| Court | Michigan Supreme Court |
| Parties | BENNETT v. CHAPIN. |
Appeal from circuit court, Ingham county.
This is a suit by the complainant to obtain a construction of the last will and testament of Eliza J. Bennett, deceased, and to compel the defendant, who is the administrator de bonis non of the estate of said deceased, with the will annexed, to pay to complainant, who is the legatee of the will, a sufficient sum of money claimed to be provided by the will to enable her to pay an indebtedness incurred in obtaining her education, and for her support and maintenance and also to pay to the complainant a sum sufficient to make her income $1,000 per year, and, if necessary, that a decree be made directing a sale of certain lots in the city of Lansing for that purpose. On the hearing in the lower court the bill was dismissed, with costs.
The complainant, who is now about 31 years of age, is the only child and heir at law of Eliza J. Bennett, deceased, who departed this life in September, 1879, leaving a last will and testament. The main provisions of the will are as follows: "I, Eliza J. Bennett, of the city of Lansing county of Ingham and state of Michigan, do make and publish this my last will and testament. First. I direct that my executors shall, during the minority of my daughter Alice Florence, provide for her education, clothing, and maintenance in a suitable manner, and that they shall thereafter pay to her the sum of one thousand dollars per annum until she shall have attained the age of thirty-five years: provided, that, in case she shall receive any funds from any other source at any time, my executors shall pay to her only such sum as may be necessary to make her total annual income one thousand dollars: provided, further, that if any portion of said yearly allowance shall not be expended within any one year, for the purposes aforesaid, the difference between the sum actually expended in such year and the sum of one thousand dollars shall in no case or in any event be subject to the order or control of my said daughter, but any such sum shall be treated in the same manner as any other funds that may remain in the hands of my executor. Second. If the executors shall at any time find it necessary, or shall deem it for the best interest of my estate, to sell any of the realty, I desire sale to be made in the following order: First, my property at Grand Ledge, Michigan; second, lot No. ten, (10,) block sixty-six, (66,) in the city of Lansing; third, the south-east quarter of the south-east quarter of section thirty-six, (36,) in the township of De Witt, Michigan; fourth, lots two and three, (2 & 3,) of block sixty-seven, (67,) in the city of Lansing. And in no case shall said last-named lots be sold before my said daughter shall attain the age of thirty-five years, unless she shall become incompetent, from any cause, to earn a livelihood, and in no event for less than the sum of fifteen thousand dollars, by my executors. Third. My estate shall remain in the hands of my executors until my said daughter shall attain the age of thirty-five years, and whatever surplus there may be from year to year, after the payment of said thousand dollars, together with the taxes and other liabilities of said estate, shall be by them invested in first-mortgage securities on well improved farming lands. Fourth. If my said daughter, Alice, shall live to attain the age of thirty-five years I direct that my executors shall then transfer to her absolutely my entire estate, both real and personal. Fifth. If my said daughter, Alice, shall die before attaining the age of thirty-five years, leaving such lawful issue, such issue die, I give my entire estate to my well beloved husband, Jacob B. Bennett, if he survive her or her issue as aforesaid. Sixth. If my said daughter, Alice, shall die before attaining the age of thirty-five years, leaving lawful issue, such issue shall take said property at the time my said daughter should have taken it had she lived. Seventh. I do hereby constitute and appoint Jacob B. Bennett and SchuylerF.
Seager, of the city of Lansing aforesaid, executors of this my last will and testament." This will was duly executed on May 30, 1876. Afterwards, and on July 19, 1879, the testatrix added the following codicil: This will and codicil were duly proved and allowed in the probate court for Ingham county on December 5, 1881.
Jacob B. Bennett, one of the executors named in the will, is the father of the complainant, but he and Mr. Seager, the other executor, are now both deceased. At the time of the probate of the will both executors refused to accept the trust, and thereupon the complainant was appointed administratrix with the will annexed, accepted the trust, and gave the requisite bond. She continued to execute the trust until November 16 1888, when she filed her resignation with her final account in the probate court, and was duly released and discharged, and the defendant, Edward C. Chapin, duly appointed administrator de bonis non with the will annexed, and now continues to execute the trust. The complainant claims by her bill that up to about the month of September, 1884, she has heretofore been able to support herself by her own exertions, and by means derived from sources outside of said estate, and a small sum from said estate, to-wit, the sum of $589.19, but that since said time, and for the year last past, she has been in ill health, and unable to earn her own support, and has been obliged at times to appeal to the kindness of friends for support and assistance, so that at the present time she is indebted in personal obligations to friends that have assisted her in about the sum of $1,500, and further says that the major portion of said indebtedness was incurred in fitting herself for the position of a teacher of kindergarten, and that she so fitted herself for such work, and has a portion of the time been able to pursue such employment, but, owing to her ill health, is no longer able to do such work; and further says that she no longer has any source of income from outside sources, and is wholly unable to support herself by her own exertions. That, under and by the terms of the first paragraph of said last will and testament, she is entitled to have paid to her from said estate, as she believes, the sum of $1,000 per annum until she shall have attained the age of 35 years, or such sum as with any funds or support received from outside sources will make her annual income $1,000. That there is no personalty belonging to said estate other than a small sum, not exceeding the sum of $250 per annum, arising from the rents of certain of the real estate mentioned in said last will and testament and codicil of said deceased, which said sum is not sufficient to meet the items of insurance and the taxes on said property. That of the real estate described in the second paragraph of the last will and testament of said deceased, the Grand Ledge property and lot No. 10, of block 66, of the city of Lansing, were disposed of by said testatrix in her life-time, thus leaving as the real estate belonging to said estate the S.E. 1/4 of the S.E. 1/4 of section 36 of De Witt township, in the county of Clinton, and lots 2 and 3 of block 67, in the city of Lansing; and says that said 40 acres in the township of De Witt are worth, as she is informed and believes, not to exceed the sum of $40, being wholly swampy and marsh, and covered with water the greater part of each year, lying in what is known as the "Big Marsh," in the said county of Clinton. That lots 2 and 3 of block 67 of the city of Lansing are located on Washington avenue in said city, and near the business portion of said city, and are worth about the sum of $10,000. That she has at various times requested the defendant, as such administrator, to pay her the sum of $1,000, or such portion thereof as is necessary for her support, which defendant refuses to do. The prayer of the bill is that the will may be construed and the rights of complainant and others thereunder may be determined and settled; that the powers and duties of the administrator de bonis non may be determined and he decreed to pay over to complainant a sum sufficient to pay her debts incurred in her support, and in educating and fitting her for a teacher of kindergarten, and such further sums from time to time as shall make her income the sum of $1,000 per annum; and, if it shall appear that he has not sufficient funds wherewith to meet such payments, that he shall be directed to sell real estate as shall be necessary therefor. The bill also contains the general prayer for relief. The main facts stated in the bill are admitted by the answer, and the testimony of the complainant, which was taken in the cause, also supports the allegation of the bill. It is admitted that the complainant has only received from her mother's estate for her support the sum of $589.19; also that the lots on Washington avenue, described in the will, have a frontage of ten rods, and that the complainant is the sole heir of Jacob B. and Eliza J. Bennett. On the hearing in the court below the court dismissed the bill, with costs. Complainant appeal...
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