Estate of Fitzpatrick, In re

• Decision Date: 05 June 1987
• Docket Number: Docket No. 88476
• Citation: 159 Mich.App. 120,406 N.W.2d 483
• Parties: In re ESTATE OF Mary Agnes FITZPATRICK, Deceased. Robert T. FITZPATRICK and Emmet M. Fitzpatrick, Heirs At Law-Appellants, v. Colleen WOLFE, Michael Fitzpatrick, Patrick Fitzpatrick, Margaret Gapske, Katherine Granum, Heirs At Law-Appellees. 159 Mich.App. 120, 406 N.W.2d 483
• Court: Court of Appeal of Michigan — District of US

Page 483

406 N.W.2d 483

In re ESTATE OF Mary Agnes FITZPATRICK, Deceased.

Robert T. FITZPATRICK and Emmet M. Fitzpatrick, Heirs At

Law-Appellants, v. Colleen WOLFE, Michael Fitzpatrick, Patrick Fitzpatrick, Margaret Gapske, Katherine Granum, Heirs At

Law-Appellees.

Docket No. 88476.

159 Mich.App. 120, 406 N.W.2d 483

Court of Appeals of Michigan.

Submitted Dec. 3, 1986.

Decided April 7, 1987.

Released for Publication June 5, 1987.

[159 MICHAPP 121] Bean & Bean, P.C. by Wiley E. Bean, Grand Ledge, for heirs at law-appellants.

Gillard, Bauer, Mazrum & Florip by James L. Mazrum, Alpena, for heirs at law-appellees.

Before WALSH P.J., and HOOD and TAYLOR, ^* JJ.

HOOD, Judge.

Appellant brothers of Mary Agnes Fitzpatrick, deceased, appeal as of right from an opinion and order which construes the decedent's last will and testament. The probate court judge found that the testatrix's deceased brothers Lloyd and Frank Fitzpatrick were within the class of persons entitled to take under the residuary clause, and thus in accordance with the anti-lapse statute, M.C.L. Sec. 700.134; M.S.A. Sec. 27.5134, their children, the appellees, would take by representation in their place. We affirm.

[159 MICHAPP 122] There is no dispute between the parties as to the factual background and no testimony was offered by the parties below to aid in the interpretation of the will because no witnesses were known to either party who had any relevant information. The decedent executed her will on July 8, 1961. At that time she had four living brothers: appellants Robert Fitzpatrick and Emmet Fitzpatrick, and also Frank Fitzpatrick and Irving Fitzpatrick. A fifth brother, Lloyd Fitzpatrick, died in 1956 before the will was executed. At the time of her death in 1985, her only living brothers were the appellants. Irving predeceased the decedent, leaving no issue, and Frank left one child, appellee Colleen Wolfe. Lloyd left four children who survived the decedent and are the remaining appellees in this case.

The will is partially typewritten and partially handwritten. The pertinent provision for our inquiry states:

"THIRD: All the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wherever situated, which I now own or may hereafter acquire, and to which I may be legally or equitable [sic] entitled at the time of my death, I give, devise and bequesth [sic] as follows:

"My share of the farm of which I am co-owner with my brother Irving to my Brother Irving solely.

"My car and whatever cash I possess to my Brother Irving.

"After all my funeral expenses, and any other debts I may have are paid, I request the remainder of the money be divided among my remaining Brothers. My diamonds are to be sold, and the cash to be divided among my Nieces and Nephews. The remainder of my personal things divided [?-illegible] among my sister-in-laws [sic]."

It is not disputed that since Irving predeceased [159 MICHAPP 123] the testatrix without issue, his specific devise and bequests lapsed and became part of the residuary estate. The central issue in this case revolves around the interpretation of the sentence, "after all my funeral expenses, and any other debts I may have are paid, I request the remainder of the money to be divided among my remaining Brothers." Appellants contend that by the use of the phrase "remaining Brothers" the testatrix meant "surviving brothers." Accordingly, they claim, since Robert and Emmet Fitzpatrick were the only two brothers to survive the decedent, all of the residuary bequest belongs to them to the exclusion of the children of Lloyd and Frank.

On the other hand, appellees argue that by the use of the phrase "my remaining Brothers" the decedent meant to give her residuary estate to her "other brothers," that is, her brothers other than Irving. Reading the will this way, the appellees contend that Lloyd and Frank were within the class of persons entitled to the residuary estate and therefore, in accordance with Michigan's anti-lapse statute, their issue take in their place by representation.

The probate court judge accepted the position of the appellees. The judge reasoned that under Michigan law the anti-lapse statute will be applied unless the testatrix makes evident by clear and unequivocal language in the will that she desires to dispose of her property in a manner different from that contemplated by the anti-lapse statute. In this case, while the word "remaining" could reasonably mean brothers other than Irving, it could also reasonably mean surviving brothers. Since the will presents a reasonable doubt as to the testatrix's intent, the court found that the application of the anti-lapse statute was not avoided. The judge also concluded that the anti-[159 MICHAPP 124] lapse statute operated to save the bequests of Lloyd Fitzpatrick, who died prior to the execution of the will, and Frank Fitzpatrick, who died after the execution of the will but before the testatrix, and to pass those bequests by representation to the appellees.

Findings of the probate court, sitting without a jury, are to be reversed by this Court only when clearly erroneous. In re Burruss Estate, 152 Mich.App. 660, 663-664, 394 N.W.2d 466 (1986); In re Wojan Estate, 126 Mich.App. 50, 53, 337 N.W.2d 308 (1983), lv. den. 418 Mich. 873 (1983). While the cardinal rule of interpretation of testamentary instruments is that the intent of the testatrix governs if it can be discovered, where the intent of the testatrix is uncertain, courts must apply rules of construction. In re Hund Estate, 395 Mich. 188, 196, 235 N.W.2d 331 (1975), reh. den. 395 Mich. 923 (1976); In re Dodge Trust, 121 Mich.App. 527, 542, 330 N.W.2d 72 (1982), lv. den. 418 Mich. 878 (1983). In this case the will creates a class gift, but the meaning of the phrase "my remaining Brothers" makes the composition of the class ambiguous. The current Michigan anti-lapse statute, M.C.L. Sec. 700.134; M.S.A. Sec. 27.5134, explicitly applies to class gifts ¹ and states:

"Sec. 134. (1) If a lineal descendant of a grandparent[159 MICHAPP 125] 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 devisee for purposes of this section whether that persons's death occurred before or after the execution of the will.

"(2) Except as provided in subsection (1), if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.

"(3) Except as provided in subsection (1), if the residue is devised to 2 or more persons and that share of 1 of the residuary devisees fails for any reason, his or her share passes to the other residuary devisees in proportion to their interests in the residue."

The rules for the construction of a will in light of the anti-lapse statute are to be applied "unless a contrary intention is indicated by the will." M.C.L. Sec. 700.133(2); M.S.A. Sec. 27.5133(2); In re Burruss Estate, supra 152 Mich.App. at 665, 394 N.W.2d 466.

As the probate judge stated, the anti-lapse statute will be applied unless the testator makes evident by "clear and unequivocal language" in the will that he desires to dispose of his property in a manner different from that contemplated by the anti-lapse statute. Rivenett v. Bourquin, 53 Mich. 10, 12, 18 N.W. 537 (1884) (applying the predecessor version of the current anti-lapse statute). If there is "any reasonable doubt" about whether the testator intended to avoid the application of the statute, the "statutory construction must prevail." Id. The anti-lapse statute was intended[159 MICHAPP 126] to remedy the common law situation where a devise/bequest to a close relative of the testator lapsed because the relative predeceased the testator and the testator had made no provision for such a contingency. Strong v. Smith, 84 Mich. 567, 571-572, 48 N.W. 183 (1891) (explaining purpose of the former anti-lapse statute). Rather than intending to allow the gift to lapse, it was assumed by the Legislature that the desire of the typical testator would be that the issue of the deceased relative should take in the relative's place if this unforeseen death occurred. Id. Accordingly, the current statute supplies a substitute taker (the issue of the deceased relative) where the relative would have taken under the will had he survived the testator even if the relative dies before or after the execution of the will.

In interpreting the will in the instant case it is evident that the probate court was faced with two plausible explanations of the meaning of the phrase "my remaining brothers." Appellants present several arguments suggesting that the phrase means "my surviving brothers." Most persuasive is their argument that it is not logical to conclude that by using the phrase "remaining Brothers," the decedent meant her "other brothers," especially if the court interpreted "other brothers" to include Lloyd, who was not living at the time the will was executed. They credibly argue that in drafting a will a testator would not use the phrase "remaining brothers" to include a brother already deceased.

The limited caselaw construing the word "remaining" is of little assistance. In LaMere v. Jackson, 288 Mich. 99, 284 N.W. 659 (1939), overruled on other grounds in In re Brown Estate, 362 Mich. 47, 52, 106...