In re Martz' Estate

• Decision Date: 27 June 1947
• Docket Number: No. 6.,6.
• Citation: 318 Mich. 293,28 N.W.2d 108
• Parties: In re MARTZ' ESTATE. Appeal of NATIONAL BANK OF DETROIT et al.
• Court: Michigan Supreme Court

318 Mich. 293

28 N.W.2d 108

In re MARTZ' ESTATE. Appeal of NATIONAL BANK OF DETROIT et al.

No. 6.

Supreme Court of Michigan.

June 27, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Macomb County; James E. Spier, judge.

Proceedings in the matter of the estate of George H. Martz, deceased, between National Bank of Detroit and others and Margaret Martz Heineman, for construction of the last will of the deceased. From the decree, the National Bank of Detroit and others appeal.

Affirmed.

Before the Entire Bench.

Ernest Wunsch, of Detroit, and Charles A. Retzlaff, of East Detroit, for appellants Albert A. Martz and National Bank of Detroit.

Bert V. Nunneley and Frank E. Jeanette, both of Mt. Clemens (Nunneley & Nunneley, of Mount Clemens, of counsel), for appellee.

SHARPE, Justice.

This is appeal from a decree construing the last will and testament of George H. Martz which was executed on October 24, 1941.

The pertinent provisions of the will read as follows:

‘Second: I give and bequeath to my sister Henrietta Martz, and unto her heirs and assigns forever, the sum of five thousand dollars, as recognition of the sacrifice she made in the loan to our sister, Emma Nagel.

‘Third: All the rest, residue and remainder of my estate, real, personal and mixed, of whatever nature and wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath as follows:

‘(A) To my brother, Albert A. Martz, a one-fourth part and share thereof and unto his heirs and assigns forever.

‘(B) To my sister, Eva M. Willette, a one-fourth part and share thereof, and unto her heirs and assigns forever.

‘(C) To my sister, Henrietta Martz, a one-fourth part and share thereof and unto her heirs and assigns forever.

‘(D) To my nieces and nephew, Gretchen Ross, Dorothy Nagel and William A. Nagel, children of my deceased sister, Emma Nagel, each a one-twelfth part and share thereof and unto their heirs and assigns forever.

‘Fourth: I have intentionally omitted from this my last will and testament my daughter Margaret Martz Heineman, having already made ample provision for her by a trust agreement now in effect.'

Testator was survived by the following persons: Albert A. Martz, a brother; Eva M. Willette, a sister; Gretchen Ross, Dorothy Nagel and William A. Nagel, children of Emma Nagel, testator's deceased sister; Elsie Hoff Thiermann, daughter of Matilda Hoff, a deceased sister; Clara K. Conte, daughter of Abbie Krapp, a deceased sister; and Margaret Martz Heineman, deceased's adopted daughter. Henrietta Martz, the sister mentioned in the above provisions of the will, predeceased the testator by eight days, leaving no issue.

The trial court entered an order providing:

‘2. That the specific legacy of Five Thousand and no/100 ($5,000.00) Dollars bequeathed to Henrietta Martz, sister of said deceased, by paragraph second of the Will, lapsed by reason of her death prior to testator, and becomes and is a part of the residuary estate.

‘3. That the specific bequest to Henrietta Martz, sister of said deceased, by subparagraph (c) of paragraph third of the Last Will and Testament, of a one-fourth part and share of the residuary estate, lapsed by reason of her death prior to testator, and thereby became and is intestate property descending to other heir at law of said deceased in accordance with the statutes of descent and distribution.

‘4. That Margaret Heineman, the daughter of said deceased, is determined to be his sole heir at law, and thereby inherits and is entitled to the one-fourth part of the residuary estate bequeathed to Henrietta Martz.'

In the opinion of the trial court, it is stated:

‘The wording of the residuary clause seems to negative any intention to treat the residuary legatees as a class, and the children of two other deceased sisters are omitted.

‘There does not appear, from the fact of this instrument itself, sufficient expression of intent on the part of the testator to justify the court in surmising that he would want any lapsed one-quarter or one-twelfth to go to the surviving residuary legatees. * * *

‘The words of the fourth clause in question seem to be merely explanatory of testator's action, and are not directive or mandatory in nature, as they so easily could have been made had the testator so intended. * * *

‘The same ruling should apply to the legacy set up in the second paragraph of the will, and said legacy held to be lapsed, and disposed of as intestate property. The wording of this paragraph would not justify the court in determining the testator intended it as a payment of a legal or even moral obligation, but a more natural interpretation would be that he intended it as a mere bounty or reward for an act of kindness.'

Appellants appeal and urge:

‘(1) That the Court erred in determining that the specific bequest made in the second paragraph of the Will of George Martz, Deceased became intestate property.

‘(2) That the Court erred in determining that the bequest made to Henrietta Martz in the third paragraph of the Will of George Martz, Deceased, became intestate property.

‘(3) That the Court erred in determining that the said specific bequest descended to Margaret Martz Heineman.

‘(4) That the Court erred in determining that the said Margaret Martz Heineman is the sole heir of the deceased.

‘(5) That the Court erred in determining that the said Margaret Martz Heineman is entitled to any share of the estate of the deceased.'

It is the position and claim of appellee, Margaret Martz Heineman, daughter and sole heir at law of said deceased, that the legacy to Henrietta Martz provided in the second clause of the will lapsed at her death and became part of the residue of said estate, and also that the bequest of one-fourth of the residue of said estate in paragraph (C) of the third clause of the will to Henrietta Martz lapsed by reason of her death prior to the death of testator, and, there being no provision in the will covering that eventuality, it became intestate property, which, under the law, passed to the heir at law of the deceased, Margaret Martz Heineman.

It is the position and claim of appellants that the share of the estate given to the person who predeceased the testator passes to the heirs of that person. It should be noted in the case at bar that the specific and residuary legacies use the following words: ‘and unto her heirs and assigns forever.'

In re Spier's Estate, 224 Mich. 658, 195 N.W. 430, one Alice V. Spier died leaving a last will and testament in which she bequeathed certain real estate to her husband James P. Spier ‘and to his heirs and assigns forever.’ The husband predeceased testatrix by more than 18 months, but she did not alter her will thereafter. In construing testatrix' will we said:

‘The use of the words ‘heirs and assigns' following a devise or bequest as here made has, we think, uniformly been held to define the estate given or granted, and not to designate the persons who should take by way of remainder unless an intent to create a life estate clearly appeared. * * *

‘We feel constrained to hold that the provision for the husband in the second paragraph of the will lapsed.'

See, also, In re Simpson, 304 Pa. 396, 156 A. 91,78 A.L.R. 992;In re Hoermann, 234 Wis. 130, 290 N.W. 608,128 A.L.R. 94; and 4 Page on Wills, 3d. Ed., § 1420.

We are constrained to hold that the use of the words ‘and unto her heirs and assigns forever’ did not prevent a lapse of the legacy.

Appellants also urge that the residuary legatees and devisees constitute a natural class, being the brothers and sisters of deceased, and rely upon In re Ives' Estate, 182 Mcih. 699, 148 N.W. 727, 729, in support of their position. We there said:

‘We are of opinion that the following claim of appellants is supported by the weight of authority:

“When it is evident from the whole tenor of the will that testator, in making the gift of an aggregate sum to certain relations, intended to provide for them collectively as a class, the designation of each individual by name, or the use of distributive words, or words denoting equality, will not be held to make the gift operate as a gift of a separate interest to each individual named, which would lapse by his death before the testator.”

And held that the legatees, being the brothers and sister of deceased constituted a natural and complete class.

Appellees rely upon Cattell v. Evans, 301 Mich. 708, 4 N.W.2d 67,...