In re Holtforth's Estate

• Decision Date: 02 September 1941
• Docket Number: No. 1,June Term, 1941.,1
• Citation: 298 Mich. 708,299 N.W. 776
• Parties: In re HOLTFORTH'S ESTATE.
• Court: Michigan Supreme Court

298 Mich. 708

299 N.W. 776

In re HOLTFORTH'S ESTATE.

No. 1, June Term, 1941.

Supreme Court of Michigan.

Sept. 2, 1941.

Proceeding in the matter of the estate of Henry Holtforth, deceased. From a judgment construing the will of the deceased, Hannah Holtforth, guardian of Betty Jane Holtforth, a minor, appeals.

Affirmed, and case remanded to the circuit court for certification to the probate court and further proceedings therein.

Appeal from Circuit Court, Livingston County; Joseph H. Collins, judge.

Argued before the Entire Bench.

Don W. Van Winkle, of Howell, for appellant.

McArthur & McArthur, of Mason, for appellees.

NORTH, Justice.

This is an appeal from the construction placed upon the second paragraph of the last will and testament of Henry Holtforth, deceased. The general plan of the will is disclosed by the following:

‘I give, devise and bequeath all my real and personal estate wherever situated, as follows:

‘First. To the three children of my sister, Delia Gordon, and the survivors of them an equal undivided ten-thirty-fifths (10/35) of my estate both real, personal or mixed or every kind and description and wherever situated.

‘ Second. To the seven children of my brother, John Holtforth, and the survivor of them, twenty-thirty-fifths (20/35) of my said estate aforesaid.

‘Third. To the six children of my brother-in-law, Henry Rohn, three-thirty-fifths (3/35) of all of my said estate aforesaid.

‘Fourth. To the two children of my brother, Martin Holtforth, one-thirty-fifth (1/35) of my said estate aforesaid.

‘Fifth. To my niece, Della Westphal, one-thirty-fifth (1/35) of all of my said estate aforesaid.

‘It is my will and intention that the several shares of my said estate given to the above named legatees as a class shall be divided equally between the members of or numbers constituting the number mentioned in each.’

Theodore Holtforth, one of the seven children of John Holtforth, predeceased the testator. The above portion of the will which we have italicized is the testamentary provision made for Theodore Holtforth and the six other children of John Holtforth. Appellant's ward, Betty Jane Holtforth, is the minor daughter and only child of Theodore. It is the claim of appellant that Betty Jane Holtforth is entitled to take under the will the share of the estate which would have gone to Theodore Holtforth if he had survived the testator. In both the probate court and in the circuit court, decision was adverse to this claim. This appeal followed.

In support of her claim appellant relies upon the so-called lapsed legacy statute which we quote: ‘When a devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done, if he had survived the testator; unless a different disposition shall be made or directed by the will.’ Comp.Laws 1929, § 15552 (Stat.Ann. § 27.2652).

Decision herein turns upon whether under the terms of the will ‘a different disposition’ is...