Hascall v. Cox

• Decision Date: 31 October 1882
• Citation: 49 Mich. 435,13 N.W. 807
• Court: Michigan Supreme Court
• Parties: HASCALL v. COX.

13 N.W. 807

49 Mich. 435

HASCALL v. COX.

Supreme Court of Michigan

October 31, 1882

After certain devises and bequests a testator directed that "all the residue of the estate, after all charges were paid, be divided among his legal heirs according to the laws of Michigan." Held, that as the residue was personal property, notwithstanding the use of the word "heirs" in the will, it should be distributed according to the provisions of the statute of distributions and not the statute of descents.

The seventh clause of a codicil to the will devised a farm to the four sons of testator's deceased sister, "in full of all claims they might have as heirs under the will, each to share equally." Held, that the exclusion of these four nephews from shares in the residue of the estate did not entitle their sister to the whole of the share that would have fallen to their deceased mother, but that she must share with her uncle and two aunts in the proportion of one to five.

Error to Kalamazoo.

COOLEY, J.

This is an appeal by Nancy Cox, one of the distributees under the will of Volney Hascall, from the allowance of the account of Sophia B. Hascall, executrix, and the final order of distribution. The will of Volney Hascall bears date January 14, 1873, and is as follows:

"I Volney Hascall, aged 53 years, of Kalamazoo in the state of Michigan, being of sound mind, make and declare this my last will and testament: First I give and bequeath to my wife Sophia, our homestead in Kalamazoo, with all my pictures, books, furniture, musical instruments and clothing; also my house and lot in Centreville, St. Joseph county, in said state; likewise $10,000 in cash and securities, as she shall elect. Second. I bequeath to my sister Caroline, if alive, $2,000, payable within one year after my demise, in securities belonging to my estate. Third. I bequeath to Nancy, my niece, daughter of my sister Cornelia, $1,000 in securities, payable within two years after my decease. Fourth. I bequeath Henry Sweetland brother of my first wife, Louisa, $1,000 in cash or securities, as shall be most convenient, to be paid within two years after my decease. Fifth. I give and bequeath to Jerome and Fanny Wait if alive, or if either be alive, the debt against the farm occupied by them on Gun Plains, due me on mortgage, if not previonsly paid up. Sixth. I give to my half-brother, Leonidas, $500 and to my half-sister, Levantia, a like amount, to be paid them in cash or securities within three years after my demise, or sooner if convenient to the executrix. Seventh. I give to the Ladies' Library Association, if in existence, $500, and the same sum to the Young Men's Library Association, if still existing, to be paid each in cash or securities within two years from my decease. Eighth. All the residue of my estate, after all charges are paid, to be divided among my legal heirs, according to the laws of Michigan. And lastly, I appoint my wife, Sophia, executrix of this, my last will and testament." [Signed and duly attested.]

Six years later he made the following codicil to his will:

"On the first day of February, 1879, I execute this codicil to my last will and testament, dated January 14, 1873, to add to and make some changes, as follows: First. I give and bequeath to my wife, Sophia, five thousand dollars ($5,000) in money or securities, or part of both, as she may prefer, in addition to the provision made further in my will; her rights as heir to remain good in all residuary property. Second. Also two thousand dollars ($2,000) in money to my wife to procure mementos for friends not mentioned in my will, and to use otherwise as she knows would be pleasing to me. Third. Five hundred dollars ($500) to my sister-in-law, Mrs. Mary E. Brown, to be paid within a year after my decease. Fourth. I revoke the gift to the Young Men's Library Association, mentioned in my will. Fifth. I desire that my wife shall not be required to give bonds or security for the performance of her duty as executrix under the will or this instrument. Sixth. I will my farm in Trowbridge, Allegan county, to my nephew, Joel Warren; his brother Douglass to have an interest of one thousand dollars ($1,000) in the farm, for which Joel is to secure him by mortgage, at a rate of interest agreed between them. Seventh. My farm in Barry county I will to my nephews, the four sons of D. Cahill, in full of all claims they might have as heirs under my will, each to share equally. Eighth. Five hundred dollars ($500) to Henry Sweetland as a partial compensation on my part for his support of father and mother."

[Signed and attested.]

The testator died February 21, 1879, and the will and codicil were duly probated, and letters testamentary issued to the widow. The testator left no children, and his heirs at law and distributees were the widow, Caroline Warren and Levantia Rogers, Leonidas Hascall, his brother, Leroy Cahill, Mortimer Cahill, Arad Cahill and Daniel Cahill for his nephews, and Nancy Cox, his niece. The Cahills and Nancy Cox are children of his deceased sister Cordelia. By the statute of distributions, if Hascall had died intestate, the widow, after some allowances not important to this discussion, would have been entitled to one-half the personalty, and the remainder would have been shared among the brother, sisters, nephews and niece, the nephews and niece receiving the portion that would have fallen to their mother if living. In May, 1881, the executrix presented her final account for allowance, showing in her hands or accounted for $64,102.53. Nancy Cox appeared and contested the allowance, and after the account had been passed upon by the probate judge, appealed to the circuit court. The questions principally contested in that court, concerned the shares respectively which the widow and the contestant were entitled to have in the residue after the specific gifts had been satisfied. The circuit judge was of opinion that the widow was entitled to one-half such residue, and that Nancy Cox, the contestant, was entitled to share the other half with her uncle and aunts, in the proportion of one to five. Order was entered accordingly.

In making this order the circuit judge gave effect to the will as he understood it. The parties agreed that all the property was given by the will;...