Ford's Estate, In re
| Decision Date | 05 September 1951 |
| Docket Number | No. 41,41 |
| Citation | 49 N.W.2d 154,331 Mich. 220 |
| Parties | In re FORD'S ESTATE. Appeal of HODGE. 331 Mich. 220, 49 N.W.2d 154 |
| Court | Michigan Supreme Court |
Robert W. Hodge, Pontiac, guardian adlitem, appellant.
Gleen C. Gillespie, Pontiac, for appellees.
Before the Entire Bench.
This is an appeal by Robert W. Hodge, guardian ad litem, from an order of the circuit court affirming an order of the probate court approving a mutual agreement for the settlement of issues raised by a petition for the construction of the will of George T. Ford, deceased.
The facts which gave rise to the filing of the petition by the beneficiaries in the probate court, are briefly as follows: George T. Ford died testate on March 24, 1942, leaving as heirs at law him surviving, Margaret Ford, widow, and two sons, Milton J. Ford and Melvin L. Ford. Milton J. Ford later died leaving surviving a widow and a minor son.
Paragraphs 15 and 16 of Mr. Ford's will, which give rise to this controversy, are as follows:
'15. On the death of my wife, Margaret Ford, or should Margaret Ford predecease me, I direct that my entire Estate (excluding specific bequests and excluding the funds to be set apart for the education of my grandson, George T. Ford III, and my grandson, Douglas Milton Ford) to be divided into two (2) equal separate trusts, one for the benefit of my son, Milton James Ford, and his issue by right of representation if Milton James Ford dies leaving issue, and one for the benefit of my son, Melvin Louis Ford and his issue by right of representation, if Milton Louis Ford dies leaving issue. If either son dies without issue, his share will go to the survivor. My Trustees shall have full power to invest and reinvest the corpus and surplus income from each of the above trusts and full power to sell, mortgage, lease, or otherwise dispose of the corpus of said trusts. The net income from each of said trusts, not to exceed One Hundred ($100) Dollars per month, may in the discretion of my Trustees be paid to each of the beneficiaries until the corpus is distributed. On partial distribution of the corpus the monthly payment to be diminished accordingly.
The will was duly admitted to probate on May 4, 1942, and the executors therein named proceeded with the administration of the estate. The Ford estate consisted of both real and personal property, but, as of the date of the filing of the annual account of the successor testamentary trustee on November 22, 1950, all of the real estate, except the homestead on which the widow has a life interest, which formed any part of the corpus of the trusts had been disposed of and the proceeds was represented by cash or government bonds amounting to approximately $136,000. Since that date the entire corpus of the trusts set up in paragraphs 15 and 16 of the will has been held intact by the successor testamentary trustee, without any distribution or payments to any of the beneficiaries.
On January 5, 1950, Margaret Ford, widow, Melvin L. Ford, only surviving child of deceased, and Melvin L. Ford, as guardian of his minor son, Douglas Milton Ford, Helen M. Vanderbaker, surviving wife of Milton J. Ford, deceased son of George T. Ford, Helen M. Vanderbaker, administratrix of the estate of Milton J. Ford, deceased, and Helen M. Vanderbaker, guardian of George Thomas Ford, a surviving minor son of Milton J. Ford, filed a petition in the probate court praying for the construction of the last will and testament of George T. Ford. Petitioners asked that the testamentary trustee be forthwith directed to pay over all of the accumulated income and two-thirds of the corpus of the testamentary trust created for the benefit of Melvin L. Ford, inasmuch as he was then 35 years of age, and, to annually thereafter pay over all of the income therefrom, and upon his attaining the age of 40 years, to pay him the remainder thereof. It also asked that the trustee be directed to pay to the administratrix of the estate of Milton J. Ford one-third of the corpus of the other trust, and all of the accumulated income to the date of his death, November 20, 1944, and, to pay the remainder of the income and corpus of the trust estate to the guardian of his surviving son, George Thomas Ford.
Following the filing of the petition, all of the parties in interest under the two trusts named in the petition, entered into a mutual agreement under C.L.1948, Secs. 702.45-702.47, Stat.Ann.1943 Rev. Secs. 27.3178(115)-27.3178(117), which was filed in the probate court, under which they agreed it was not the intention of deceased that distribution of the trusts be suspended during the lifetime of his widow; and that the true construction of the will was in accordance with the allegations set forth in the petition. Robert W. Hodge was appointed guardian ad litem to represent the interests, if any, of unborn children, and a hearing was had on the petition to approve the settlement agreement.
The probate court approved the mutual agreement which had been executed by all beneficiaries, and directed the testamentary trustee and guardian ad litem to join in the execution thereof. Under this order the testamentary trustee was authorized and directed to forthwith pay over all of the accumulated and two-thirds of the principal of the trust created for Melvin L. Ford, and annually thereafter, to pay him the net income from the remaining one-third of the trust, and, upon his attaining the age of 40 years, to pay him the remainder. Should Melvin L. Ford die before attaining the age of 40 years, the trustee was directed to pay the residue of the trust estate to his lawful issue, by right of representation, and if he died without leaving issue, the same was to be paid to his heirs at law. The trustee was further directed to pay all of the accumulated income of the other trust estate to the date of death of Milton J. Ford and one-third of the principal to the administratrix of his estate, and to pay all of the remainder of the principal and interest to the guardian of his surviving minor son, George T. Ford.
No appeal was taken from the order by the testamentary trustee, but Robert W. Hodge, guardian ad litem for any person or persons not in being who might have a contingent interest in the assets of the trusts, took an appeal to the circuit court, setting up the following reasons: '(1) That said order is in effect writing a new will for the testator; and (2) that said order is based upon an erroneous findings of fact as to (a) provision made for the widow and (b) existence of spendthrift trusts; and (3) that said order, under the interpretation placed upon the will of decedent materially reduces, and in a short period of years would annihilate, the contingent rights of unborn children.'
The cause came on for a trial, witnesses were sworn and at its conclusion, the trial court entered a judgment affirming the order of the probate court approving the mutual agreement for the settlement of issues raised by the petition for the construction of the will of George T. Ford, deceased, under which agreement the testamentary trustee was directed to presently distribute the assets of the two testamentary trusts.
The guardian ad litem appeals and urges that proof adduced by petitioners rests upon testimony as to matters equally within the knowledge of testator. It appears that during the hearing before the circuit court, witnesses were produced by petitioners who testified that testator stated upon numerous occasions that the sons were to receive their shares of the estate when they reached the ages of 30, 35 and 40 years respectively. No objections were made when this testimony was offered and the guardian ad litem cross examined some of the witnesses.
In Hayes v. Skeman, 269 Mich. 473, 257 N.W. 866, we had occasion to define an 'opposite party' as one whose personal and financial interests, either immediate or remote, are in antagonism to the like interests of a protected party to the controversy. Donald Menzies, a friend of deceased for more than 30 years, testified that...
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