In re Dodge's Estate

• Decision Date: 03 April 1928
• Docket Number: Nos. 18-21,Oct. term.,138,s. 18-21
• Parties: In re DODGE'S ESTATE. Appeals of DODGE et al.
• Court: Michigan Supreme Court

242 Mich. 156

218 N.W. 798

In re DODGE'S ESTATE.

Appeals of DODGE et al.

Nos. 18-21, 138, Oct. term.

Supreme Court of Michigan.

April 3, 1928.

Error to Circuit Court, Wayne County; Harry J. Dingeman, Judge.

Proceedings for the distribution of the estate of Anna Margaret Dodge, deceased. A decree of the probate court ordering a partial distribution was modified by the circuit court, and John Duval Dodge and others bring error. Decree of probate court affirmed, and that of circuit court modified and cases remanded, with direction.

Argued before the Entire Bench.Lucking, Hanlon, Lucking & Van Auken, of Detroit (Alexis C. Angell, Charles Wright, Jr., and Alfred Lucking, all of Detroit, of counsel), for appellants John Duval Dodge, Winifred Dodge Seyburn, and Isabelle Dodge Sloane.

Hobart B. Hoyt, of Detroit, for Frances Matilda Dodge and Daniel George Dodge, minors, by Joel H. Prescott, their guardian ad litem.

Campbell, Bulkley & Ledyard, of Detroit, and Hawkins, Delafield & Longfellow, of New York City (Henry Ledyard, of Detroit, of counsel), for appellee Matilda R. Wilson.

FELLOWS, J.

These five writs of error sued out by different parties in interest bring up for review a judgment of the circuit court of Wayne county, entered upon several appeals from a single decree of the probate court of that county ordering a partial distribution of the estate of decedent. While the amount involved is large (something over $7,500,000) and the briefs are exhaustive, we are persuaded that the questions are no complex, nor do they require detailed analysis or discussion in an extended opinion for their correct solution. John F. Dodge made his will April 4, 1918. It made no provision for after-born children. Anna Margaret Dodge, his daughter, was born June 14, 1919. He died January 24, 1920, without making any change in his will. It is conceded that Anna Margaret Dodge as a pretermitted child took under section 13790, C. L. 1915, which reads:

‘When any child shall be born after the making of his father's or his mother's will and no provision shall be made therein for such child, he or she shall have the same share in the estate of the testator as if the parent had died intestate, And the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.'

Anna Margaret Dodge died April 13, 1924, when less than five years old. Her estate consisted almost entirely of personal property, Mr. Dodge having left but little real estate. The question here presented is whether her estate both real and personal has the quality of an ancestral estate and goes to her brothers and sisters under the following provision found in section 11795, C. L. 1915:

‘If such intestate shall die under the age of twenty-one years, and not having been married, all the estate that came to such intestate by inheritance from a parent, which has not been lawfully disposed of, shall descend to the other children and the issue of deceased children of the same parent, if there be such children or issue, and if such persons are in the same degree of kindred to said intestate they shall take equally, otherwise they shall take by right of representation.'

If either or both real and personal property has not the character or quality of an ancestral estate, then the mother takes under other provisions of the section cited. The probate court held the real estate had such quality, and it was decreed to the brothers and sisters; it held that the personal property had not the quality and character of ancestral estate, and decreed it to belong to the mother. The circuit court gave judgment to the mother for both real and personal estate.

1. Personal Property. As the great bulk of the estate is personal property, we shall first consider its devolution. Appellants insist that the general provision found in section 13913, C. L. 1915, requires that the personal property pass as ancestral under the provision above quoted. This general provision is as follows:

‘In any other case the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for thed same purposes, as prescribed for the descent and disposition of the real estate.'

If the provisions of section 11795, dealing with ancestral property, which we have quoted, are not applicable to personal property, then the personal property under other provisions of the same section goes to the mother, and the decisions of the probate and circuit courts as to the personal property must be affirmed. Before taking up Jenks v. Trowbridge Estate, 48 Mich. 94, 11 N. W. 822, we should quote the statute having reference to ancestral estates in force when that litigation arose. It is the sixth subdivision of section 4309, C. L. 1871, and is as follows:

‘If any person shall die leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation.'

We have italicized the words ‘by inheritance,’ and shall possibly have occasion so to do later. We do this because in the Jenks Case interpretation of these words was regarded as crucial in determining one of the grounds of decision. In the Jenks Case the minor son of the parties had died. The estate which came to him from his father consisted of both real and personal property. It was conceded by all parties that the real estate passed as ancestral property, the litigated question being whether the personal property was also ancestral. This court held that it was not, and based its decision on two grounds: It gave to the words ‘by inheritance’ used in the statute their technical, legal meaning, as having reference only to descent of real estate. It was said:

‘We have seen how the right of succession provided for in subdivision 6 (section 4309) is dependent on specified conditions, and that the presence of all the conditions is indispensable to the right. The ‘persons' there mentioned can only become...