Defreese v. Lake

• Decision Date: 26 May 1896
• Citation: 67 N.W. 505,109 Mich. 415
• Court: Michigan Supreme Court
• Parties: DEFREESE v. LAKE ET UX.

67 N.W. 505

109 Mich. 415

DEFREESE v. LAKE ET UX.

Supreme Court of Michigan

May 26, 1896

Error to circuit court, Shiawassee county; Charles H. Wisner Judge.

Action by Aaron Defreese against John A. Lake and Mary Lake. Judgment for plaintiff, and defendants bring error. Reversed.

Watson & Chapman, for appellants.

John T McCurdy, for appellee.

HOOKER J.

One Peter Casler, being owner in fee of the premises in controversy, made a will which contained the following provisions: "I give and bequeath to my wife, Betsey Casler, all the west half of the southeast quarter, and the south half of the east half of the southeast quarter, except so much of said land on the south as will make forty acres on section thirty-one, according to the original survey of the United States, being in the township of Shiawassee county of Shiawassee and state of Michigan, it being the same farm on which I now reside. After her decease the said real estate above described I give and bequeath to Henry Casler, my son, and after his decease said real estate to belong to his heirs." It appears that, during the time that Betsey Casler occupied the land, it was assessed for taxes to her for the years 1874 and 1875. It was sold for these taxes, and tax deeds were executed to Henry Casler on December 9, 1876, and December 13, 1877. After the testator's death his widow, Betsey Casler, entered and occupied the premises until her death, which occurred in September, 1877. Afterwards Henry Casler entered and held possession until November 7, 1879, when he conveyed the premises to John L. Lake by warranty deed. Mary Lake is the wife of John Lake, and, at the time this action of ejectment was brought against them, resided with him upon the premises. Henry Casler died September 15, 1886, leaving issue. The plaintiff claims title to the land in question under quitclaim deeds obtained from the descendants of Henry Casler, executed and delivered before his death; also, a quitclaim deed purporting to have been given by other persons, styling themselves "heirs at law of Peter Casler, deceased," dated after Henry's death. Some of them were admitted to be heirs at law of Henry Casler. Thus we find the plaintiff claiming title, and a right to recover the premises, by virtue of a deed from Henry Casler's heirs, while the defendants are in possession, claiming under a deed from Henry Casler himself. The plaintiff contends (1) that Henry Casler took only a life estate, with remainder to his heirs; (2) that the purchase of the lands at tax sale inured to the benefit of the remainder-men, and title, as against them, cannot be claimed under such deeds. On the other hand, the defendants say that Henry Casler took title in fee simple, under the will, and that, failing in that, his tax deeds gave him such title.

The will has been quoted. It conveyed a life estate to Betsey Casler, with remainder to her son Henry. So far there can be no dispute. Was this a remainder in fee simple? Obviously, this must depend upon the construction to be given to the words, "I give and bequeath to Henry Casler, my son, and after his decease said real estate to belong to his heirs." Does this language evince an intention upon the part of the testator to limit Henry's interest to an estate for life? If the intention had been to devise an estate in fee simple, the most apt and proper words would have been, "I give and devise to Henry Casler, my son, his heirs and assigns forever." An equally effective and perhaps common method of expression would be "I give and devise to Henry Casler, my son," the law in such case supplying the necessary words to create the estate in fee simple. But this testator used neither expression, but added to the devise to Henry the provision that after his decease "said real estate should belong to his heirs,"-words which necessarily imply that Henry Casler was to have only a life estate, if they are not to be treated as superfluous. We are not without precedents in this state which warrant the conclusion that this devised a life estate. Fraser v. Chene, 2 Mich. 81, construed a will in which the following language was used: "I give and bequeath to my beloved son Gabriel Chene, my eldest, the farm I now reside on, for and during his lifetime, with all the appurtenances thereon; and after he, my said son, the said Gabriel Chene, is deceased, then the right, title, and appurtenances of the aforesaid farm is to become the property of said Gabriel Chene's male heirs." The court said, "It would seem to any one reading the will in this case that the intention of the testator to give a life estate only to his son Gabriel was so very plain that it could not be doubted." In the case of Gaukler v. Moran, 66 Mich. 354, 33 N.W. 513, the testator devised premises to a daughter "during her natural lifetime, and after her death to her heirs and assigns." This was held to give the daughter a life estate merely. See, also, Cousino v. Cousino, 86 Mich. 323, 48 N.W. 1084; Jones v. Deming, 91 Mich. 481, 51 N.W. 1119. We are of the opinion that the words used indicated a plain intention to give to Henry Casler a life estate only. This being so, the statute (2 How. Ann. St. � 5544) applies, and the heirs of Henry Casler take as purchasers. This may seem at variance with the case of Fraser v. Chene, supra, but it is not, as the will in that case antedated the statute.

One Hartwell testified on behalf of the defendant that he drew the will, and that he had a conversation with the testator, at the time the will was drawn and executed, in regard to the provision hereinbefore mentioned, and that he understood the testator to wish Henry to have the land "in his own name, free"; that the witness "was in doubt, some, how to word the will, as it was new business to him"; and that "he asked the testator particularly what he wished,-how he wished the estate disposed of after his death,-whether Henry was to be allowed to use it all, or keep it in trust," and he said: "'It is no matter. Henry will not have anything left, any way. It is all for Henry.' Q. Did you understand you were creating a fee simple? A. Yes, sir. Q. By the use of those words? A. Yes, sir." This testimony was afterwards stricken out, on motion of plaintiff's counsel, upon which error is assigned. There was no ambiguity on the face of the instrument, and the testimony was not admissible. Fraser v. Chene, supra; Kinney v. Kinney, 34 Mich. 250; Waldron v. Waldron, 45 Mich. 354, 7 N.W. 894; Forbes v. Darling, 94 Mich. 625, 54 N.W. 385.

It being settled that Henry Casler's title to the premises acquired through the will, terminated at his death, we will next consider the question of the tax titles. It will be remembered that he procured a tax deed of the premises before the termination of Betsey Casler's estate. These taxes were properly assessed to Betsey Casler, who owed the duty of payment, both to the state, and to the remainder-men. Jenks v. Horton, 96 Mich. 13, 55 N.W. 372; Smith v. Blindbury, 66 Mich. 319, 33 N.W. 391. But Henry Casler was in a different situation. He certainly owned no duty of payment to the state, though his interest in the premises was liable to sale therefor. It is a general proposition that a life tenant to whom taxes are assessed, and upon whom the law imposes the burden of such taxes, cannot acquire the title in fee by allowing the premises to be sold for taxes, and bidding them in, thus cutting off the remainder-man. But in this case Henry Casler was not a life tenant in possession, and, so far as the record shows, he had not done anything tending to show whether or not he had accepted the devise prior to the time he obtained his tax deeds, which manifestly he was under no obligation to do unless he chose. 2 Redf. Wills, 304, and cases cited; Doe v. Smyth, 6 Barn. & C. 116; 4 Kent, Comm. 534; Townson v. Tickell, 3 Barn. & Ald. 31; 2 Story, Eq. Jur. �� 1075-1079. In 3 Washb. Real Prop. 6, the author says, "An heir at law is the only person who, by common law, becomes the owner of land without his own agency or assent. A title by deed or devise requires the assent of the grantee or devisee before it can take effect." Again, at page 542, the author says, "It is hardly necessary to add that no one can make another the owner of an estate against his consent, by devising it to him, so that if the devisee disclaim the devise it becomes inoperative and goes to the heir." It is said that a parol disclaimer will not prevent the devisee from subsequently claiming the devise, and that the reason of the necessity of a deed grows out of the presumptive vesting of the devised interest in the devisee before entry. See Perry v. Hale, 44 N.H. 365. It is, in our opinion, illogical to say that a deed is necessary because of the presumption that the title has vested, when the title does not vest by a devise unless there is an acceptance. It would seem that the deed would be necessary only where the title had actually vested, which appears to depend upon acceptance. If it be admitted that the law will presume an acceptance, it is not a conclusive presumption, and, when it is shown to have been renounced, it is shown that the title did not vest, and apparently there would be no occasion for divesting a title that had not vested. There are two classes of cases in which it may become necessary to determine what constitutes a renunciation or acceptance: (1) Cases where the devisee or his privies are denying renunciation; and (2) where they are asserting it. In the former (i. e. before the devisee can be deprived of the estate) there are cases that hold that renunciation is not to be lightly inferred, and that equivocal acts will not do, and it has been contended that a deed is necessary when the devise is of an absolute and...