In re Wagar's Estate

• Decision Date: 10 June 1942
• Docket Number: No. 44.,44.
• Citation: 302 Mich. 243,4 N.W.2d 535
• Parties: In re WAGAR'S ESTATE. Petition of WAGAR et al. In re Supplemental Petition of PAGE.
• Court: Michigan Supreme Court

302 Mich. 243

4 N.W.2d 535

In re WAGAR'S ESTATE. Petition of WAGAR et al. In re Supplemental Petition of PAGE.

No. 44.

Supreme Court of Michigan.

June 10, 1942.

Proceeding in the matter of the estate of Humphrey R. Wagar, deceased, wherein Ernest E. Wagar and another, trustees under the will of the deceased, and individually, filed a petition for construction of the will and for instructions concerning distribution, and wherein supplemental petition was filed by Gertrude P. Page, guardian of the estate of Rufus Lee Page, Jr., a mentally incompetent person, for a determination of the legal heirs of Wellington Cass Page, in accordance with a decree of the Supreme Court. From a decree construing the will, Marion W. Page Ross (Greenwood) appeals.

Affirmed.

BOYLES, J., dissenting.

Appeal from Circuit Court, Ionia County, in Chancery; Leland W. Carr, judge.

Before the Entire Bench.

Delos G. Smith, of Washington, D. C., Montgomery Webster, of Ionia, and Laurence W. Smith, of Grand Rapids, for appellant.

Greer H. Smith, of Ionia, for appellee Rufus Lee Page.

BUSHNELL, Justice.

This is an appeal by Marion W. Page Ross (Greenwood) from a construction of the will of Humphrey R. Wagar, deceased. Wagar's will was executed in 1908 and he died in 1916. This will has been before the court on two occasions, In re Wagar's Estate, 292 Mich. 452, 290 N.W. 865, and In re Wagar's Estate, 295 Mich. 463, 295 N.W. 227. Wagar left surviving him his widow, three children, and three grandchildren. The provisions for his wife, his children and grandchildren are found in the cases just cited.

In 292 Mich. 452, 290 N.W. 865, 866, the surviving trustees of the estate sought a construction of the will and instructions relative to distribution of a share of the estate which would have passed to Wellington Cass Page had he survived. Wellington, who was one of Wagar's grandchildren, died 13 months before the testator, under the age of 21, unmarried and without issue. The court held in that case: ‘* * * that the devise to Wellington Cass Page goes to, and is ‘to be divided among the legal heirs of said grandchild, share and share alike,’ and that the legal heirs of Wellington Cass Page are to be determined as of the date of the death of the last surviving child of the testator and the estate is ready to be distributed in accordance with the provisions of the will.'

In 295 Mich. 463, 295 N.W. 227, the court was called upon to determine whether the widow of one of Wagar's children should receive the amounts which were payable monthly to her husband. In that case the court held that, when Wagar used the phrase ‘legal heirs' in paragraph 6 of the will, he intended to include the widow of the particular son in question. Wagar's last surviving child is now deceased and Gertrude P. Page, guardian of Rufus Lee Page, Jr., a then mentally incompetent person, petitioned the court for an order requiring the distribution to Rufus Lee Page, Jr., of an equal share of a one-quarter share of the residue of the estate of Humphrey R. Wagar. Her contention is that Rufus Lee Page, Jr., a half brother of Wellington Cass Page but not of the blood of the testator, was a legal heir of Wellington Cass Page as of October 6, 1939, which was the date of the death of the last surviving child of the testator.

Wellington Cass Page has a sister, Marion Greenwood, and their mother, now deceased, was a daughter of Humphrey R. Wagar. Approximately five years before Humphrey R. Wagar executed his will, Wellington Cass Page's mother and father, Rufus Lee Page, were divorced. About three years before the will was executed, Rufus Lee Page married Gertrude Page, petitioner herein, and of that marriage Rufus Lee Page, Jr., was born. Another child was born of this marriage but is not now living. Rufus Lee Page, the father of Wellington, is now deceased and the question presented is whether Marion Greenwood, a full sister, shall take the full share that was originally designated for Wellington Cass Page, or whether it shall be divided, share and share alike, between her and her half-brother, Rufus Lee Page, Jr.

This question was submitted to the late Judge Royal A. Hawley, of Ionia, who died before he reached a decision. The parties thereafter stipulated that the cause should be considered by another circuit judge. Judge Leland W. Carr was so designated by the State presiding judge, and he determined in a written opinion that Rufus Lee Page, Jr., was entitled to share under the will, and entered a decree accordingly.

Appellant, the full sister of Wellington Cass Page, contends that, because of the statute, Rufus Lee Page, Jr., cannot take. The statute, 3 Comp.Laws 1929, § 13444 (Stat.Ann. § 26.985), reads as follows: ‘The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one (1) of his ancestors, in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.’

Was Rufus Lee Page, Jr., a legal heir of Wellington Cass Page as of October 6, 1939? If so, he is entitled to take under the Wagar will.

The term ‘legal heir’ is defined in Black's Law Dictionary (3rd Ed. 1933) p. 886, as follows: ‘Heir, legal. In the civil law. A legal heir is one who takes the succession by relationship to the decedent and by force of law * * * The term is also used in Anglo-American Law in substantially the same sense, that is, the person to whom the law would give the decedent's property, real and personal, if he died intestate.’ See Brooks v. Parks, 189 Mich. 490, 155 N.W. 573.

Had Wellington Cass Page died intestate on October 6, 1939, Rufus Lee Page, Jr., would certainly have been entitled to share in his estate generally, and he is therefore a legal heir of Wellington within this definition. Is he precluded from taking as a legal heir because he could not have inherited this property through Wellington Cass Page if it had come to Wellington during his lifetime?

The mere fact that Rufus Lee Page, Jr., could not have shared in any ancestral property which Wellington might have inherited during his lifetime from the testator does not prevent him from being a legal heir of Wellington within the meaning of that term. He was, in the language of the definition quoted, ‘the person to whom the law would give the decedent's property * * * real and personal, if he died intestate.’ He was, therefore, a legal heir of Willington Cass Page. But, say appellants, he is not a legal heir because he is only a half-brother, excluded by statute from inheriting through Wellington, property devised by Humphrey R. Wagar. Rufus does not seek to take through Wellington, but directly under the will, and, because of its language, as a member of a class designated by the testator to whom property should go upon the happening of a contingency.

The will reads: ‘7th. Subject to the life estate of my beloved wife,...