Curtis v. Fowler

• Decision Date: 07 July 1887
• Citation: 33 N.W. 804,66 Mich. 696
• Court: Michigan Supreme Court
• Parties: CURTIS and others v. FOWLER.

33 N.W. 804

66 Mich. 696

CURTIS and others v. FOWLER.

Supreme Court of Michigan

July 7, 1887

Error to circuit court, St. Joseph county.

Ejectment by William B. Curtis and others, defendants in error, against Martin S. Fowler, plaintiff in error.

Orris P. Coffinberry, for plaintiff in error.

Hugh P Stewart, for defendants in error.

CHAMPLIN, J.

On the sixteenth day of August, A.D.1850, Friend Curtis, of the township of Mottville, in the county of St. Joseph, made his last will and testament, and soon thereafter died. His widow Melissa Curtis, and four children, the issue of a former marriage, namely, Elizabeth Preston, (afterwards Knapp,) Seth, William B., and Francis Curtis, and also one child named Sarah, daughter of Melissa, survived him. Francis died soon after, without issue and unmarried. Seth died, leaving two children, the plaintiffs William B. and Ira Curtis. Friend Curtis' will was duly probated in probate court of St. Joseph county, on the second day of December, 1850. By his will Friend Curtis disposed of the land in question in this suit as follows: "I do hereby devise and bequeath to my beloved wife all my landed estate, being all of the real estate belonging to me at this time, to remain to her use and benefit while she shall remain my widow; and at her decease I direct and bequeath to my daughter Sarah all said real estate, to be and remain to her use and benefit.

Under this will the widow Melissa entered into possession of the land of which Friend Curtis died seized, it being the land described in plaintiff's declaration. Sarah, to whom the land was given after Melissa's death, died on the tenth day of August, 1865, under age, without issue and unmarried. The widow continued in possession until on or about the ninth day of May, 1874, when she conveyed by warranty deed to defendant, claiming the title "as widow of Friend Curtis, and also as mother and only heir of Sarah Curtis deceased, who derived title under the will of Friend Curtis." The defendant has continued in possession up to the commencement of this suit. It was conceded on the trial that Melissa died on March 24, 1884. These plaintiffs now bring this action to recover the undivided three-fourths of the land in question, claiming their right to recover as heirs of Sarah. The defendant pleaded the general issue, and gave notice of improvements he had made since his purchase, and claimed compensation therefor. Upon the trial the court ruled that defendant was not entitled to claim compensation for improvements prior to the death of Melissa Curtis.

By the will of Friend Curtis, Sarah Curtis was entitled to the remainder of the real estate on the death of Melissa Curtis. This estate was created upon the death of Friend Curtis. How.St. � 5557. It was an expectant estate, and descendible in the same manner as estates in possession. How.St. � 5551. On the death of Sarah, by the statute of descents in force at that time, her expectant estate descended to her brothers and sisters and mother in equal shares. 2...