In re Churchill's Estate

• Decision Date: 03 April 1925
• Docket Number: No. 92.,92.
• Citation: 230 Mich. 148,203 N.W. 118
• Parties: In re CHURCHILL'S ESTATE. Appeal of ELLIOTT et al.
• Court: Michigan Supreme Court

230 Mich. 148

203 N.W. 118

In re CHURCHILL'S ESTATE. Appeal of ELLIOTT et al.

No. 92.

Supreme Court of Michigan.

April 3, 1925.

Case-Made from Circuit Court, Bay County; Samuel G. Houghton, Judge.

In the matter of the estate of Worthy L. Churchill, deceased. From an order of the probate court, assigning residue of trust estate to Howard L. Churchill, Annie M. Elliott and Joseph A. Montgomery appeal on case made. Affirmed.

In this case we have before us the will of Worthy L. Churchill, bearing date January 3, 1913, which, omitting the attestation, is as follows:

‘I, Worthy L. Churchill, of Bay City in the county of Bay, and state of Michigan, being in good health, and of sound mind and memory, do make, declare and publish this, as and for my last will and testament, hereby revoking all other wills heretofore made by me, that is to say:

‘First: I hereby nominate and appoint as executors of this, my will, Eugene Fifield, of Bay City, Michigan; Wendell D. Holmes, of Bay City, Michigan, and H. M. Gillett, of Bay City, Michigan.

‘Second: I give, devise and bequeath to Edward Saunders, of Davenport, Iowa, the son of my old friend, Doctor Saunders, now deceased, and of Sarah Saunders, now living, my gold watch and chain, and also the sum of five hundred dollars ($500.00), which I request him to invest and with the earnings keep the said watch in repair and good order.

‘Third: After the payment of my funeral expenses, my personal debts, and the expenses of administration of my estate, and the special bequest to Edward Saunders, and providing for the comfortable support of my daughter until the trust estate herein created shall pay a sufficient revenue for that purpose, I give, devise and bequeath all the rest, residue and remainder of the property of which I shall die seized, of every name and description, and wherever situated, unto the Security Trust Company of Detroit, Michigan, in trust, nevertheless, for the use and benefit of my daughter, Florence Churchill, an incompetent person, as herein provided. The said trustee shall take and hold title to the said property, and shall preserve the same, and shall collect and receive the rents, issues and income thereof, and shall after the payment of the proper costs and expenses of the trust, pay such rents, issues and income, semi-annually, to the guardian of my said daughter, Florence Churchill, for her use, benefit, maintenance and support, during her life.

‘And I do hereby authorize and empower the said Trustee, in its discretion, to sell and convey such property, or any part thereof, and to convery the same into money, and to invest and reinvest the same in such manner as may be proper and advisable, and in such case the rents, issues and income thereof shall be applied, and the principal thereof be disposed of in the same manner as the property originally so held. It is my desire that my daughter shall have all the comforts and care that the income of my estate will provide, and that she shall be supported in the same degree of comfort in which she was supported by me during my lifetime, and that, if the same will promote her comfort and happiness, she shall be permitted to maintain the homestead now occupied by me in Bay City, Michigan, or another suitable homestead in its place, and shall have all the service and attendance necessary for that purpose. In such case, the title to such homestead shall be held by said trustee, and the use of the same by my daughter shall be credited to the said trustee in lieu of the rents, issues and income thereof. In respect to such of the furniture and furnishings in my homestead, or such other personal chattels, as may be of a nature to be conveniently used by my daughter, or by her guardian for the comfort of my daughter, I direct that the same shall be left in the possession of the guardian of my said daughter, for the purpose aforesaid, and that my trustee shall not be chargeable therewith. If the net income of said trust estate shall at any time prove insufficient for my daughter's support, in the manner aforesaid, then I direct said trustee, or the guardian of my said daughter, to apply to the proper court having jurisdiction of said trust estate, for an order in the premises, and my said trustee is hereby empowered to devote so much of the principal fund of such trust estate to the support and maintenance of my daughter as said court shall deem proper, due regard being had to insure the continuance of an income to my said daughter during her life.

‘If, at any time, the guardian of my said daughter shall find that the annual income of said trust estate is in excess of the proper needs and requirements of my daughter after providing liberally for all comforts and luxuries which can reasonably increase her happiness, then I direct that the amount of such excess, if any, shall be returned to, or retained by the said trustee, and shall be added to the principal fund of said trust.

‘Fourth: I direct my executors to pay my personal debts and funeral expenses, and direct and empower them to surrender to the guardian of my daughter, Florence Churchill, the possession of my homestead, if it is desired to maintain the same, together with the furniture and furnishings in my homestead, and such other chattels as may be required in the opinion of said guardian for the comfort and happiness of my said daughter. I further empower and direct my executors to pay to such guardian during the administration of my estate such sums as may be necessary for the comfortable support of my daughter, until such time as the trustee hereinbefore appointed shall receive sufficient property for that purpose. I further empower the said executors to convert into cash, by sale and conveyance or otherwise, any part of my property which in their judgment is not of a nature to be properly or profitably devoted to the use of my daughter, or held as a part of the trust hereinbefore created. I further direct my executors to pay over and deliver to the trustee hereinbefore appointed, from time to time, during the administration of my estate, such property, securities and funds as may not be needed in the administration of my estate, to the purpose that the said trust fund shall be created and an income accrue therefrom, as soon as possible after my decease. My executors shall have the right and power to sell and convey both my real and personal estate, and any interest therein.

‘Fifth: The said Security Trust Company, as Trustee, shall prepare and furnish every six months, from the time the trust estate shall come to its hands, an inventory of all the property comprised in such trust estate, and a statement in detail of the receipts and disbursements for the preceding six months, one copy to be delivered to my daughter, and one copy to her guardian.

‘Sixth: The said Security Trust Company, as such trustee, shall file its reports and accounts annually, in the court having jurisdiction of said trust estate, and such account shall be annually audited and allowed or disallowed by such court, and such court shall, in connection with such accounting, fix the compensation from year to year to be allowed said trustee. The property and securities belonging to said trust estate, and the books and records kept by the said trustee, concerning the same, shall be open to the inspection of the executors of this, my will, and of the guardian of my daughter, or their, or his duly appointed agent, at any time during business hours.

‘Seventh. At the death of my said daughter the trust estate herein created shall forthwith terminate, and all of the property then held by any said trustee, or in the possession of the guardian of my daughter, shall thereupon belong to and vest absolutely in the following persons, viz.:

‘a. If my daughter, Florence Churchill, shall die leaving issue, all of said property shall belong to and vest absolutely in the issue of my said daughter.

‘b. If my said daughter, Florence Churchill, shall die without issue, then the said property shall belong to and vest in the following persons, viz.:

‘An undivided one-tenth part thereof to my sister-in-law, Annie M. Elliott, of Minneapolis, Minnesota, to her and her heirs forever.

‘An undivided three-tenths part thereof to Clara Webber, daughter of John Webber, of Stafford, Genesee County, New York, to her and her heirs forever.

‘An undivided one-tenth part thereof to Mary Stevens, widow of Sylvester S. Stevens, now living at Antioch, California, to her and her heirs forever.

‘An undivided two-tenths part thereof to my nephew, Howard L. Churchill, of Alpena, Michigan, to him and his heirs forever.

‘An undivided one-tenth part thereof to Nellie Church Cornwell, of Buffalo, New York, daughter of John Webber, of Stafford, Genesee County, New York, to her and her heirs forever.

‘This leaves an undivided two-tenths part of the remainder of my estate, to be disposed of under the laws of the State of Michigan, unless I should make some other provision by codicil or otherwise.

‘Eighth: I nominate and appoint Clara Webber, of Stafford, Genesee County, New York, testamentary guardian of the person of my said daughter, and of her estate, when and as paid over by my representatives and said trustee, and I wish her to stand in loco parentis to my said daughter, and to surround her with all the care and comfort that she is able to do under the provisions furnished to her by this will.’

The will was prepared by the late H. M. Gillett of Bay City, one of the able lawyers of the state. Mr. Churchill died February 5, 1913, and the will was admitted to probate and the estate administered. The trust fund amounting to about $475,000 was turned over to the Security Trust Company. The incompetent daughter, Florence, was testator's only child and was of the age of 37 years at the time of his death. She died December 13, 1920. In addition to the amount furnished for the maintenance of the daughter, the trust fund had...