In re Wagar's Estate

• Decision Date: 15 March 1940
• Docket Number: No. 84.,84.
• Citation: 292 Mich. 452,290 N.W. 865
• Parties: In re WAGAR'S ESTATE. Petition of WAGAR et al.
• Court: Michigan Supreme Court

292 Mich. 452

290 N.W. 865

In re WAGAR'S ESTATE.

Petition of WAGAR et al.

No. 84.

Supreme Court of Michigan.

March 15, 1940.

Proceeding in the matter of the estate of Humphrey R. Wagar, deceased, wherein Ernest E. Wagar and another, trustees under the will of Humphrey R. Wagar, deceased, and individually, filed a petition for a construction of the will and for instructions to the trustees as to distribution. From an adverse decree, the trustees appeal.

Reversed and rendered.

Appeal from Circuit Court, Ionia County in Chancery; Royal A. Hawley, judge.

Argued before the Entire Bench.

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

Eldred & Gemuend, of Ionia, and Joseph A. Burkart, of Washington, D.C., for appellee Portia W. Marshburn.

Colwell & Welch, of Ionia, for appellee H. R. Wagar, Jr.

WIEST, Justice.

This is a proceeding to construe the will of Humphrey R. Wagar, deceased.

In July, 1908, Mr. Wagar executed his will, and died August 11, 1916. At the time he executed the will he had a wife, three children and four grandchildren. His will vested his estate, real and personal, in trustees, with power of management and duty to pay stated sums at fixed periods to his wife and children and, upon the death of such beneficiaries, to convey the residue of his estate to the four grandchildren, naming them, but provided that, in case any grandchild died prior to the death of the last survivor of his children then the share of such deceased grandchild should be divided among the legal heirs of such grandchild share and share alike. The will was duly admitted to probate and the trustees acted.

Wellington Cass Page, one of the grandchildren, died 13 months before testator, was under the age of 21 years, unmarried and without issue.

The trustees under the will brought this proceeding to have the court determine what disposition is to be made of the one-fourth interest in the residue of the estate, which would have passed under the will to the deceased grandchild had he lived, and, if it be held that such share is intestate property, then, when and how that share is to be distributed.

The circuit judge held that the grandchild, having predeceased the testator, all interest given him in the will lapsed or ceased at his death because he died during the lifetime of the testator; that by such lapse the estate in this particular did not become intestate property but remained a portion of decedent's estate to be divided upon the death of testator's last surviving child; that upon the death of testator's last surviving child the share that would have gone to the deceased grandchild should pass to the three surviving grandchilden, not as a class gift but as a gift to them individually, to be divided share and share alike.

The trustees under the will appeal, contending that the residuary devise to the deceased grandchild lapsed and became intestate property.

The will provided: ‘7th. Subject to the life estate of my beloved wife, and children above named, I give, devise and bequeath to my grandchildren, Portia W. Wagar, H. R. Wagar, Jr., Marion W. Page and Wellington Cass Page, sons and daughters of my children, all the remainder of my real estate and personal property, and all that may...