Goodell v. Hibbard

• Decision Date: 27 April 1875
• Citation: 32 Mich. 47
• Court: Michigan Supreme Court
• Parties: Mary E. Goodell v. Daniel B. Hibbard, Jr., and another

32 Mich. 47

Mary E. Goodell v. Daniel B. Hibbard, Jr., and another

Supreme Court of Michigan

April 27, 1875

Heard April 23, 1875

Error to Wayne Circuit.

Judgment affirmed, with costs.

D. B & H. M. Duffield, for plaintiff in error.

Kane & Hibbard, in person, and S. T. Douglass, for defendants in error, cited, Pickering v. Towers, 1 Eden 142 and note; Haley v. Boston, 108 Mass. 576; Bundy v Bundy, 38 N. Y., 410; Prindle v, Beveridge, 7 Lans. 225; Covert v. Robinson, 46 Penn. St., 274; Seeley v Seeley, 44 Ib. 434; Jones v. Miller, 13 Ind. 337; 4 Com. Dig., 168; 1 Cowp. 234; 6 Taunt. 485; 2 T. R., 720; 3 Call. 342; 3 Wash. C. C., 369; Tator v. Tator, 4 Barb. 431; 12 Wend. 83; 17 Wend, 393.

OPINION

Graves, Ch. J.

This was ejectment by defendants in error to recover five-sixteenths of certain lands in Ecorse. By direction of the court the jury found for the plaintiffs in ejectment, and defendant in ejectment brought error, and the case comes before us on a bill of exceptions.

The claims to the land on both sides depend ultimately upon the last will of one Peter Goodell, and the exact nature of the controversy will more clearly appear upon an inspection of the whole will, in the light of the material facts, which are shown by stipulation.

The will reads as follows:

"In the name of God--Amen.

"I, Peter Goodell, of the township of Ecorse, in the county of Wayne, and state of Michigan, of the age of thirty-seven years January last, and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following, that is to say:

"First, I give and devise to my brother, Gillard Goodell, twenty-five acres from off the north part of all that tract or parcel of land situated in the township of Ecorse, county of Wayne, and state of Michigan, belonging to me, as specified in two several deeds, one of which is between Mr. Visger and I, the other between Mr. Daniel Goodell and I, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the premises above described to the said Gillard Goodell and his heirs, if any, forever, but in failure of any heirs, to fall to my sister, Betsey Goodell, or her heirs.

"Second, I give and devise all the rest, residue and remainder of my real and personal estate, of every name and nature whatsoever, to my said sister, Betsey Goodell, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the said premises, which is described in several deeds, to the said Betsey Goodell and her heirs, forever; and in failure of heirs, all to fall and be bequeathed to the minor children of Alexander Goodell, now deceased, and the said Betsey Goodell is bound by this said instrument to provide, support and maintain, during the natural period of her life, my mother, Axey Goodell, as also, in case of her decease, to provide for the decent interment of her, together with all the expenses appertaining thereto.

"Third, I give and bequeath the sum of fifty dollars, to be paid by my said sister, Betsey Goodell, within one week after my decease, to the minor children of the said Alexander Goodell.

"In witness whereof I have hereunto set my hand and seal this twenty-third of January, in the year of our Lord one thousand eight hundred and forty-nine.

(Signed) "Peter Goodell."

Then followed a proper attestation clause with three witnesses.

The stipulation as to facts contained the following matters:

First, That Peter Goodell, late of Ecorse, Wayne county, Michigan, was, at and before the time of his death, seized and possessed in fee simple of the premises set forth in the plaintiff's declaration in this cause.

Second, That Peter Goodell died at Ecorse in April, 1849, testate, leaving a last will and testament, a copy of which is given. It was duly proved and admitted to probate in the probate court for the county of Wayne, and recorded with the register of deeds for such county.

Third, At the time of his death, said Peter Goodell left him surviving five brothers, to-wit: Daniel, Andrew, Jonas, Gaylord or Gillard (the last named being one of the devisees named in the will) and Elijah; a sister, Betsey Goodell (also a devisee in said will named), and three nieces and one nephew, the children of a deceased brother, Alexander Goodell (said children and said Alexander Goodell also named in said will); also a sister named Maria Goodell.

Fourth, That the said children of Alexander Goodell were born at the respective dates following, to-wit: Laura J. Goodell, born July 23, 1839; Lucille J. Goodell, born May 11, 1842; Harriet J. Goodell, born January 8, 1845; Frank A. Goodell, born March 17, 1847; that all of the above named children are now living, except Harriet J. Goodell, who died in 1867, unmarried, without issue, and intestate.

Fifth, That the premises described in the declaration are part of those devised to said Betsey Goodell in said will of Peter Goodell; that on his death she went into possession thereof, and continued in possession up to the time of her death, which took place March 14, 1874; that from the time of her death the defendant (Mary E. Goodell) has been in possession and is so now.

Sixth, That when said Peter Goodell died he was thirty-seven years old; that up to the time of his death, and for several years before, said Betsey Goodell, and the mother of said Peter Goodell, lived with him (the said Peter Goodell) on the premises devised in the said will; that said Peter Goodell and said Betsey Goodell were never married, and that the said Betsey Goodell died intestate; that when said Peter Goodell died, he left several brothers and sisters who had children living, as follows, to wit: Daniel Goodell had four children; Andrew Goodell had five children; Jonas Goodell had six children; Maria Ferguson had seven children; Elijah Goodell had several children; Gaylord or Gillard was not married up to the time of said Peter Goodell's death; that the said Alexander Goodell died in an insane asylum at Utica, in the State of New York, in 1848; that at his death he left no property to his family.

Seventh, That the mother of Laura J. Goodell, Harriet J. Goodell, Lucille J. Goodell and Frank A. Goodell, children of Alexander Goodell, deceased, is living, and that Betsey Goodell, sister and devisee of Peter Goodell, died without ever having had any children.

The plaintiffs in ejectment base their title upon a conveyance to them by one Frank A. Goodell, who, they insist, became entitled under the second clause in the will as one of the children there mentioned of Alexander Goodell; and the defendant in ejectment claims as heir at law of Betsey Goodell, the devisee named in the same clause. And the position of the plaintiffs in ejectment is, that under the provision of the will the realty disposed of by the second clause wholly passed on the death of Betsy Goodell without issue, to Frank A. Goodell and the other children of Alexander Goodell; that the gift under that clause to Betsey Goodell, if not hindered by the statute, would have been an estate tail, with remainder to the children of Alexander Goodell, upon her dying without issue. On the other hand, the first ground of the defendant in ejectment is, that the devise in question to Betsey Goodell gave to her an absolute estate of inheritance, and in support of this view it is urged, that by comparing the different parts of the will an intention will be discovered to give her an estate larger than for life, and that the word "heirs," as twice used in the second clause, cannot be construed to mean children, because the will imposes a personal charge upon the devisee: first, to take care of the testator's mother; and second, to pay fifty dollars to the children of Alexander Goodell.

The counsel for the other side urge in reply, that this second clause must if possible be so interpreted as to give all parts of it sensible effect, and they insist that it must have been the testator's intention that in some future possible contingency "all the estate" should go to the children of Alexander Goodell; because, if such had not been the intention, the testator would not have taken care to devise "all" over to them; that the word "heirs," in the positions it is made to occupy cannot possibly be read in the technical sense as contended for, because to do so would inevitably defeat all chance for the passage of the estate to Alexander Goodell's children; since in consequence of their relation to Betsey Goodell, ...