Houghteling v. Stockbridge

• Decision Date: 17 May 1904
• Citation: 99 N.W. 759,136 Mich. 544
• Court: Michigan Supreme Court
• Parties: HOUGHTELING v. STOCKBRIDGE et al.

99 N.W. 759

136 Mich. 544

HOUGHTELING v. STOCKBRIDGE et al.

Supreme Court of Michigan

May 17, 1904

Cross-Appeals from Circuit Court, Kalamazoo County, in Chancery; George L Yaple, Judge.

Bill by James L. Houghteling, as executor of the last will and trustee of the estate of Francis B. Stockbridge, deceased against Betsey A. Stockbridge and others. From the decree both parties appeal. Affirmed.

Dallas Boudeman, for complainant.

George P. Hopkins, for defendant Children's Home.

A. M. &amp C. H. Stearns, for certain defendants.

E. M. Irish and N.H. Stewart, for defendant Betsey A. Stockbridge.

CARPENTER J.

Complainant is executor of the last will, and trustee of the estate, of Hon. Francis B. Stockbridge, who, at the time of his decease, was one of Michigan's representatives in the United States Senate. The first-named defendant is the widow of the late Senator Stockbridge. Complainant asks the court of chancery, by this suit, to direct him how to perform certain of his trust duties. Defendant Mrs. Stockbridge files an answer and cross-bill, charging that complainant has improperly performed certain of his duties, and seeks to make him personally chargeable therefor, and prays his removal as trustee.

1. The first question demanding our attention relates to the claim of Mrs. Stockbridge to the sum of $10,000 for the first year after her husband's death, both as an allowance by the probate court and as an annuity under the will. The facts necessary to the determination of that claim are these. Paragraph 2, subdivision 'a,' of the will of Senator Stockbridge, reads as follows: 'I give and bequeath to Betsey A. Stockbridge, my wife, $10,000 per year.' The value of the estate left by Senator Stockbridge was so uncertain that, shortly after his appointment as executor, complainant feared that he could not safely pay said annuity. He feared that the estate might prove to be insolvent, and that voluntary payment on his part would expose him to the hazard of a suit by creditors. He therefore insisted on either an order from the probate court or a bond from Mrs. Stockbridge which should protect him. This bond Mrs. Stockbridge could not give. Under these circumstances Mrs. Stockbridge petitioned the probate court for an allowance for family expenses. Among other things, the petition stated the provision of the will respecting the annuity; complainant's contention that he could not with safety pay the same without a bond, which petitioner could not give; that petitioner was without means for adequate support; that it would require $10,000 per annum to maintain her, which sum it was evident the testator intended she should have. It was also stated in said petition that the petitioner expressly reserved the right, for a year, 'to elect to waive the terms and conditions of said will.' The probate court thereupon made an allowance to Mrs. Stockbridge of $10,000 for the first year after the death of her husband. The circuit court decided that Mrs. Stockbridge was entitled to this $10,000 allowance, and also to the $10,000 annuity for said year. The authority given by statute to the probate court to make this allowance is found in sections 9291 and 9292 of the Compiled Laws of 1897. Those sections read:

'Sec. 9291. If the provision made by the will, or the estate appropriated, shall not be sufficient to pay the debts, expenses of administration and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated, according to the provisions of the law, for that purpose.

'Sec. 9292. The estate, real personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, expenses of administration and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies may be exempted.'

We think these sections indicate that an order of allowance for family expenses is to be presumed--and is therefore to be construed--to be in addition to, and not in substitution for, a provision for that purpose in the will. It is contended, however, that the order in question is to be construed as such a substitute, because it was so intended by all the parties interested. If a court of equity could change the legal effect of this order because of the intent of the parties, that intent should be clearly proved. In Tilden v. Streeter, 45 Mich., at page 540, 8 N.W. 506, it was said, in a controversy where complainant insisted that a deed executed by him was a mortgage: 'Unless the testimony, say the Supreme Court of the United States, is entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. Howland v. Blake, 97 U.S. 624, 626 .' We think stronger language than that might be used where an attempt is made to change the legal effect of an order of court. While we have no doubt that complainant intended that the allowance should be a substitute for the annuity, we cannot say that it is proved beyond a reasonable doubt that Mrs. Stockbridge had that intent. The fact that she expressly reserved the right to elect to waive the terms and conditions of said will is inconsistent with such intent. If it were true that when she made this petition she feared that the estate would prove insolvent, she knew, of course, that she might not receive the annuity. But that by no means compels us to conclude that she expected the allowance to be a substitute for the annuity should those fears prove groundless. Nor do we think that her rights were waived, under the circumstances of this case, by her failure to assert them at an early stage of the proceedings. It follows that the trial judge correctly disposed of the claim under consideration.

2. The second question involved is this: Do the annuities provided for in the will cease at the expiration of five years from the death of the testator? Paragraph 2 of the will reads as follows:

'I give and bequeath the legacies following,----

'(a) I give and bequeath to Betsey A. Stockbridge, my wife, $10,000 per year. Should she not survive me, and should her sister, Caroline A. Peters, survive her and myself, then I give and bequeath to the said Caroline $1,000 per year. And should the said Caroline not survive my said wife and myself, and should her son, George A. Mansfield, survive his mother, my said wife and myself, then I give the said legacy of $1,000 per year to him, subject to the general provisions below stated.

'(b) I give and bequeath to Cornelia R. Sheldon, my sister, $1,200 per year. Should she not survive me, or surviving me, not live to the time of the division hereinafter memtioned, then I give said sum, or the unaccrued portion thereof, to her daughter, Cornelia Sheldon, subject to the general provisions below stated.

'(c) I give and bequeath to Marcia E. Houghteling, my sister, $1,200 per year. Should she not survive me, or, surviving me, not live to the time of the division hereinafter mentioned, I give said sum, or the unaccrued portion thereof, to her three daughters and the survivor or survivors of them, in equal parts, subject to the general provisions below stated.

'(d) I give and bequeath to my sister, Mary G. Drummond, $400 per year. Should she, surviving me, not live to the time of the division hereinafter mentioned, the said payment to cease at her death; subject to the general provisions below stated.

'(e) I give and bequeath to Theodosia Stockbridge, of Utica, New York, my sister, $800 per year. Should she not survive me, or, surviving me, not live to the time of the said division, I give said sum, or the unaccrued portion thereof, to Mary Brown, our cousin, if the survive myself and said Theodosia; said payment to cease at the death of said Mary; subject to the general provisions below stated.

'(f) I give and bequeath to Marcia B. Jenks, of Boston, Massachusetts, my cousin, $400 per year. Should she not survive me, or surviving me, not live to the time of the said division, I give said sum, or the unaccrued portion thereof, to her daughters, subject to the general provisions below stated.

'Provided, however, that all the legacies and sums aforesaid be paid in quarterly installments, and that they shall all, at all events, cease to be due and payable at the division of my estate mentioned in paragraphs 4 and 5 hereof; and further that they shall be payable out of the income of the this limitation, intend to give it such legal if thereto sufficient. Otherwise, I direct that they be paid out of the proceeds of sales of stocks belonging to said fund, or loans thereupon, as may seem best to my executor and trustee hereinafter named.'

We quote as much of paragraphs 4 and 5 as is necessary to understand what is meant by the foregoing reference thereto:

'Paragraph 4. I hereby give, devise and bequeath all the rest, residue and remainder of my estate, not above disposed of, real, personal and mixed, now held or hereafter to be acquired, wheresoever situate, to James L. Houghteling, my nephew, his heirs, assigns and successors in trust, as my trustee, to hold, use and manage the same; in trust, however, upon the uses and trusts herein expressed (such rest, residue and remainder, with its income and additions, to be herein termed my general trust fund of estate) until such time, not exceeding five years from my decease, as my said trustee shall deem it to be the best interest of all concerned to make a final settlement and division thereof; at which time my said trustee shall make division of all my said general trust estate among the beneficiaries and in the manner herein mentioned.

'Paragraph 5. It is my will that my said trustee, at the...