Eberts v. Eberts
| Decision Date | 13 January 1880 |
| Citation | 42 Mich. 404,4 N.W. 172 |
| Court | Michigan Supreme Court |
| Parties | HERMAN F. EBERTS and others, v. CHARLES H. EBERTS and others. |
A will devised certain lands to the "surviving children" of certain brothers named. The brothers and some of their children were dead at the time of the making of the will. Other of the children of such brothers died, leaving issue before the death of the testatrix. Held, that only the children of the brothers named, surviving at the death of the testatrix, took under such devise, and that section 4349 Comp.Laws, did not aid those claiming as issue of one of the children dying after the execution of the will, and before testatrix.
Appeal from Wayne.
Alfred Russell, for complainants.
J.H. Bissell and S.t. Douglass, for defendants.
It is conceded by counsel for defendant Joseph M. Eberts that the general rule of construction of wills requires the words "surviving children" to be interpreted as intending only those who were surviving at the death of the testator. Indeed the cases of Hansford v. Elliott, 9 Leigh, 79, and Martin v. Kirby, 11 Gratt. 67, upon opinions in which some reliance is placed by them, fully recognize this rule, and it is not questioned anywhere.
But it is said that this is merely a general rule, and in any particular case parol evidence of the circumstances under which the will was executed may be received, to show that such was not the testator's intent. We concede that the surrounding circumstances may be shown, and that sometimes they are very conclusive that the intent was different from what might be inferred from the language of the will interpreted without the aid of any extrinsic evidence.
But in this case the parol evidence merely showed that there was a class of persons answering the description of surviving children of his brothers at the time the will was made, and also a class answering the same description, but less numerous, at the time of the testator's death. But whether he intended the one or the other was left on the evidence wholly to conjecture. We may guess that he meant those who answered the description when the will was made but the extraneous evidence brings into the case no element of certainty whatever, and a construction to that effect must be based upon inference and conjecture.
We are not at all inclined to follow arbitrary rules of construction to the overturning of a testator's real intent; but the rule that makes a will speak from the testator's death is neither arbitrary nor unreasonable, and there cannot be the least doubt that in a large majority of cases it corresponds to the actual intent. It thus becomes a rule of property, and should not be set aside on extrinsic evidence in any case unless the court, on placing itself in the position occupied by the testator at the time he made the will, can clearly see that such was not his meaning. We cannot say that such is the case here.
The statute, (Comp.Laws, � 4349,) on which some reliance is placed, cannot help this defendant. When we find that the will only makes the gift to persons who survived the testator there is nothing to go to the issue of others who died before he died.
The decree must be modified to conform to this view.
This case comes up on appeal from a decree in chancery given to declare the meaning of a devise contained in the will of Phillis Eberts, late of Chatham, in Canada.
The devise in question, which is preceded by a number of gifts, is in these terms:
"The property situated in the city of Detroit, State of Michigan, under lease to Messrs. Fisher, I give and bequeath to the surviving children of my brothers, Robert M. Eberts, Joseph Eberts and Richard Eberts, in equal proportions."
At the date of the will the brothers of the testatrix had been dead many years, but a son of Richard, and several children of each of the other two, were living. In the interval of a little less than two years, between the making of the will and the testatrix's death, Walter Eberts and Effie Robertson, two of the children of the testatrix's brother Joseph, also died, the former leaving a son, Joseph M., and the latter several children.
The validity of the devise is not in question, but the controversy arises on the meaning of the word "surviving," which cannot be set aside and must be interpreted.
Notwithstanding the ability with which the case has been presented, my mind has fluctuated as I have examined and re-examined the record and explored the authorities. At length, however, I have reached a conclusion, and feel satisfied it accords with what the testatrix actually intended.
It must ever be the aim to ascertain what mind the author of the will had at the time of executing it, and in order to secure safe guides and methods in prosecuting the inquiry, the law has suggested various rules, and recognized certain maxims and principles of reasoning, to be resorted to and applied according to the nature of the case.
In view of their facility it is reasonable to exercise caution to avoid their possible misuse. A given rule may be applied in the wrong place, or it may be applied beyond its reason.
Formerly the court of chancery, finding no other period to which the term could be applied, and wishing to favor the vesting of the interest on the ceasing of the testator to hold it, was inclined to the view that the word "surviving" should be referred to the testator's death. But the rule was never universal, and the modern tendency of judical opinion is to pay less attention to it, and with or without the light of admissible extrinsic facts examine the whole will, in order to lay bare the true intent.
Undoubtedly the word must have some meaning, and hence must be referred to some date, and in the absence of anything to fix the expression and apply it in some other sense equally good or better, it must be held to signify, surviving at the death of the testatrix. The result follows as a necessary one. But this signification is not one which in this case satisfies the mind. It is not the sense which spontaneously occurs, or which impresses one as the sense intended by the testatrix. It is impossible to avoid feeling that it is merely an imputed sense, an artificial meaning, which the testatrix never conceived.
Every testamentary gift necessarily implies that the donee is to take after and not before the donor's death; and hence, that the donee is to survive the donor. And the...
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