In re Spier's Estate

• Decision Date: 26 October 1923
• Docket Number: No. 42.,42.
• Citation: 224 Mich. 658,195 N.W. 430
• Parties: In re SPIER'S ESTATE.
• Court: Michigan Supreme Court

224 Mich. 658

195 N.W. 430

In re SPIER'S ESTATE.

No. 42.

Supreme Court of Michigan.

Oct. 26, 1923.

Certiorari to Circuit Court, Calhoun County; Walter H. North, Judge.

In the matter of the estate of Alice V. Spier, deceased. An order of the probate court assigning the residue of an estate was affirmed by the circuit court, and Charles C. Spier, the executor, brings certiorari. Order reversed and set aside.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Powers & Winkler and Burritt Hamilton, all of Battle Creek, for appellant.

John W. Bailey, of Battle Creek, for appellee.

SHARPE, J.

Alice V. Spier, of the city of Battle Creek, died on September 22, 1921, leaving a last will and testament, executed on September 6, 1918. The material parts thereof read as follows:

‘Second. I give, devise, and bequeath to my dear devoted husband the house and lot located at No. 69 Chestnut street in said city of Battle Creek, described as the south two and one-half rods of lots 33, 34 and 35 of Merrit's addition to said city of Battle Creek, according to the recorded plat thereof, together with all my household goods, keepsakes and ornaments; it being my intention that this bequest shall be to my said husband, James P. Spier, and to his heirs and assigns forever, in addition to a further bequest hereinafter mentioned.

‘Third. I give, devise and bequeath Marion and Duane Spier, children of my deceased son Roy, the sum of one thousand dollars to be divided equally between them, and in case of the death of one of them before this will becomes operative then said one thousand dollars shall go to the survivor, and in case of the death of both of said grandchildren before the will becomes operative, then said one thousand dollars shall become a part of my estate and be disposed of as hereinafter provided.

‘Fourth. For the better information of those who may have charge of the settlement of my estate and in explanation of the purpose and meaning of the provisions of my will, I will and direct that after taking out the property mentioned in the second and third paragraphs above mentioned, that all of the rest, residue and remainder of my estate, both personal and real, wherever situate, shall be divided into five (5) equal parts, as I desire to divide such remainder equally between my husband and four children.

‘Fifth. I will and direct that after taking out said specific bequests, that all of the rest, residue and remainder of my estate be divided between my husband, James P. Spier, my sons, Charles C. Spier, Howland M. Spier and Frank C. Spier, and my daughter, Minnie F. Clapp. equally, share and share alike, and to their heirs and assigns forever.

‘Sixth. I further will and direct that in the event of the death of any or either of the persons mentioned in the fifth paragraph, before this will becomes operative, leaving a child or children, his or her share shall go to such surviving child or children, and if more than one child survives they shall share alike; and in the event of the death of any or either of said persons leaving no child surviving, then his or her share shall go to the surviving persons mentioned in said fifth paragraph, share and share alike.’

At the time of her death she had four children living. Her husband had died on November 30, 1919. The question here presented is: What became of the devise and bequest to the husband? The probate court determined that it passed to the issue of the husband under the provision in section 13793, 3 Comp. Laws 1915, which reads as follows:

‘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.’

We were at first so impressed, and handed down an opinion so holding, which was published in the advance sheets of the Northwestern Reporter (194 N. W. 490).¹ This opinion has been withdrawn from the files, and will not appear in our official reports. Whether the words ‘other relation’ used in this section included a husband was not briefed or discussed by counsel at the hearing. Our attention having been called to the fact that several state courts had held that a husband was not so included, we ordered a rehearing on our own motion. Such rehearing has been had. Counsel are agreed that on principle as well as authority we should hold that the word ‘relation,’ as used in this section, means kindred by blood only, and excludes husbands, wives, stepchildren, and the like. We therefore content ourselves with calling attention to the authorities, and they seem to be uniform, so holding. Esty v. Clark, 101 Mass. 36, 3 Am. Rep. 320;Horton v. Earle, 162 Mass. 448, 450, 38 N. E. 1135;Curley v. Lynch, 206 Mass. 289, 292, 92 N. E. 429;Worcester Trust Co. v. Turner, 210 Mass. 115, 120, 96 N. E. 132;Keniston v. Adams, 80 Me. 290, 14 Atl. 203;Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30;Sackman v. Campbell, 10 Wash. 533, 39 Pac. 145.

Counsel for the appellee insists, as he did at the first hearing, that, by reason of the language used, the gift having been made to the husband ‘and to his heirs and assigns forever,’ there was no lapse; that the property passed to the heirs and personal representatives of the husband. To so hold we must find that, had the husband survived his wife, he would have taken but a life estate, with remainder over to his heirs. 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.

‘If the intention had been to devise an estate in fee simple, the most apt and proper words would have been, ‘I give and divise to Henry Casler, my son, his heirs and assigns forever.’' Defreese v. Lake, 109 Mich. 415, 418, 67 N. W. 505 (32 L. R. A. 744, 63 Am. St. Rep. 584).

‘A gift to one ‘and’ his heirs or the like, creates no substitutional gift, and if the donee dies before the testator there is a lapse.' Rood on Wills, § 682.

‘A gift ‘to A. and his heirs' is simply a gift of the fee to A., for if A. dies before the testator the heirs of A. do not take.’ Ramsen on the Preparation and Contest of Wills, p. 100.

‘The technical words to create a fee are by a devise to one and his heirs, and the words ‘heirs and assigns' are words of limitation and not words of purchase.’ 2 Schouler on Wills (6th Ed.) § 1181.

‘The word ‘heirs' in such case gives the heirs no interest under the will, but it is merely a word of limitation showing what interest the ancestor was to take in case he should survive the testator.’ 1 Underhill on Wills, p....