Estate of Burruss, Matter of

• Decision Date: 16 October 1986
• Docket Number: Docket No. 83646
• Citation: 152 Mich.App. 660,394 N.W.2d 466
• Parties: In the Matter of the ESTATE OF Audrey BURRUSS, Deceased. Anna Mary VOLLICK, Petitioner-Appellee, v. Charles LARSON, Vicki Larson, and Joan Larson Scott, Respondents-Appellants. 152 Mich.App. 660, 394 N.W.2d 466
• Court: Court of Appeal of Michigan — District of US

Page 466

394 N.W.2d 466

In the Matter of the ESTATE OF Audrey BURRUSS, Deceased.

Anna Mary VOLLICK, Petitioner-Appellee, v. Charles LARSON, Vicki Larson, and Joan Larson Scott,

Respondents-Appellants.

Docket No. 83646.

152 Mich.App. 660, 394 N.W.2d 466

Court of Appeals of Michigan.

Submitted May 7, 1986.

Decided June 17, 1986.

Released for Publication Oct. 16, 1986.

[152 MICHAPP 661] Frank Selwa and John K. Yoveff, Detroit, for Anna Mary vollick.

J. Michael Zychowski and Robert L. Martin, Royal Oak, for Charles Larson, Vicki Larson and Joan Larson Scott.

Before BRONSON, P.J., and GRIBBS and CLEMENTS, ^* JJ.

PER CURIAM.

Appellants appeal as of right from an opinion and order of the Wayne County Probate Court which construes the last will and testament of Audrey Burruss, deceased. The order denies appellants a share in the residue of decedent's estate. We affirm.

[152 MICHAPP 662] The underlying facts are not in dispute. Decedent died testate on July 5, 1982. During her lifetime she had four children: Roland Burruss, Anna Vollick, Jeanne Glaeser and Audrey Larson. Decedent's husband predeceased her, as did Roland Burruss. Audrey Larson also predeceased her mother, but left three children, the appellants herein.

Article 3 of decedent's will, dated August 11, 1953, provided as follows:

"In the event my said husband, Peter D. Burruss, should predecease me, or in the event that my husband and I should meet our deaths simultaneously, as in some common catastrophe, then in either of such cases, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever situated, in equal amounts, share and share alike, to my daughters, Anna Mary Vollick of Redford Township, Wayne County, Michigan, Jeanne Glaeser of Detroit, Michigan and Audrey Larson of Detroit, Michigan, or to the survivor or survivors of them."

Anna Vollick, the personal representative of decedent's estate, petitioned the probate court for construction of the will. Anna argued that she and her sister, Jeanne, should take the residue of the estate to the exclusion of decedent's three grandchildren, the appellants. The appellants' position was that they were entitled to a one-third interest in the residue, claiming the share of their deceased mother, Audrey Larson.

The sole issue considered by the probate court was whether the language, "share and share alike, to my daughters * * * or the survivor or survivors of them", created an ambiguity within the four corners of the will, thereby requiring will construction. The court found that the will was clear [152 MICHAPP 663] and unambiguous and that it need not go outside the will to interpret it. The court held that the language expressed an intent to make a provision for the death of the beneficiaries contrary to that provided for in Michigan's anti-lapse statute, M.C.L. Sec. 700.134(1); M.S.A. Sec. 27.5134.(1) Appellants were therefore found to have no right, title or interest to decedent's estate.

Appellants first contend that the trial court committed error in finding that decedent's will clearly and unambiguously expressed decedent's intent to give the residue of her estate in equal shares to her living daughters.

The role of the probate court in will cases is to ascertain and give effect to the intent of the testator. In re Bair Estate, 128 Mich.App. 713, 716, 341 N.W.2d 188 (1983). Unless a will is ambiguous on its face, the testator's intention is derived from the language of the will. In re Dodge Trust, 121 Mich.App. 527, 542, 330 N.W.2d 72 (1982), lv. den. 418 Mich. 878 (1983). In the instant case, the probate court found that there was no ambiguity on the face of the will and that the "survivorship" language of article 3 clearly intended to provide for the distribution of the remainder of decedent's estate to her children who were living at the time of her death. The learned judge stated:

"This court finds that the language used by decedent is clear and unambiguous on the face of her will. Testatrix specifically stated that the residue of her estate was to be given to her three daughters 'share and share alike ... or to the survivor or survivors of them.' 'Them' refers to decedent's three daughters, Anna, Jeanne and Audrey. The survisor(s) [sic] of 'them' are Anna and Jeanne because they survived Audrey's death."

Findings of the probate court, sitting without a [152 MICHAPP 664] jury, are to be reversed by this Court only when clearly erroneous. In re Wojan Estate, 126 Mich.App. 50, 53, 337 N.W.2d 308 (1983), lv. den. 418 Mich. 873 (1983). In the instant case, the findings of the probate court were correct and should accordingly be affirmed. The testatrix's intent can be ascertained both from the clear language used in the will and from the very presence of such language in the will, read in conjunction with Michigan's anti-lapse statute.

Here, the testatrix left her estate to her three children (listed by name) or to the "survivor or survivors of them". Our Supreme Court has interpreted such "survivorship" language in a manner consistent with the probate court in the case at bar. In In re Holtforth's Estate, 298 Mich. 708, 299 N.W. 776 (1941), the Court interpreted the language "[t]o the seven children of my brother, John Holtforth, and the survivor of them", to mean that if one or more of John Holtforth's children should die before the testator, that portion of the testator's estate was to go solely to John Holtforth's surviving children. The Court's ruling excluded the heirs of the deceased seventh child. The Court further held that the language was plain, not ambiguous. A similar interpretation of the survivorship language was used by the Court in In re Blodgett's Estate, 197 Mich. 455, 163 N.W. 907 (1917).

The principles set out above must apply to the case at bar. "Survivor" has a well-settled meaning in our law (e.g., joint tenancies with "rights of survivorship"). This language was specifically used in decedent's will by an attorney who can be presumed to know its meaning in this context. Had the drafter of the will wanted to effectuate the testatrix's intent as that intent is perceived by appellants, he could have anticipated the contingency[152 MICHAPP 665] of the death of one of the children by providing for "their children", "their issue", or "their heirs". Rather, he specifically used the word "survivor".

Had the will not contained the survivorship language, appellee concedes that appellants would have taken their deceased mother's share by representation in accordance with Michigan's anti-lapse statute, M.C.L. Sec. 700.134(1); M.S.A. Sec. 27.5134(1). That statute reads, in pertinent part:

"If a lineal descendant of a grandparent of the testator who is designated as a devisee or would have been a devisee under a class gift had the descendant survived the testator, fails to survive the testator, whether the devisee dies before or after the execution of the will, or is deemed to have predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours shall take in place of the deceased devisee by representation. A person who would be a devisee under a class gift if that person survived the testator is treated as a...