Jamieson's Estate, In re

• Decision Date: 01 June 1964
• Docket Number: No. 22,22
• Citation: 132 N.W.2d 1,374 Mich. 231
• Parties: In the Matter of the ESTATE of Robert C. JAMIESON, Deceased. ,
• Court: Michigan Supreme Court

Page 1

132 N.W.2d 1

374 Mich. 231

In the Matter of the ESTATE of Robert C. JAMIESON, Deceased.

No. 22, June Term, 1964.

Supreme Court of Michigan.

Jan. 4, 1965.

Clarence Thomas Wilson, Detroit, for appellants.

Hill, Lewis, Andrews, Adams, Goodrich & Power, Detroit, for John W. Blanchard and C. E. Frazer Clark, trustees, and Louise Duncan, appellees, Charles C. Andrews, W. Merritt Jones, Jr., Detroit, of counsel.

Dickinson, Wright, McKean & Cudlip, Detroit, for Helen J. Delbridge and Alice D. Bellamy, appellees, Frederick K. Plumb, Detroit, of counsel.

Before the Entire Bench.

SOURIS, Justice (for reversal and remand).

Robert C. Jamieson died April 17, 1946, having the previous day executed his will, which reads in part:

'I, Robert C. Jamieson, being of sound mind and memory, do hereby make and declare this to be my last Will and Testament, hereby revoking all former Wills made by me.

'My nearest relatives are my wife, Carolyn P. Jamieson, Address, Hotel Lenox, Madison Avenue, Detroit 26, Michigan; my brother A. Douglas Jamieson, residing at #910 Taylor Avenue, Detroit 2, Michigan, and my sister Louise Duncan, whose residence is St. Clair, Michigan.

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'4. The remainder of my estate, both real and personal, wherever situated, I give in trust to John W. Blanchard of Bloomfield Hills, Michigan, and A. Douglas Jamieson, my brother, with full power to sell and transfer any stocks, bonds or other assets of my estate and reinvest the proceeds thereof, or any funds which may become the property of said estate, in such income securities as are legal in Savings Banks in the State of Michigan, for the following purposes:

'Net income therefrom shall be paid to my wife Carolyn P. Jamieson during her lifetime. Said Carolyn P. Jamieson has some means of her own together with some income from annuity insurance and if these together with the net income from my estate are not sufficient to keep her comfortably during her lifetime, said trustees or their successors, are hereby authorized to convert into cash and turn over to said Carolyn P. Jamieson, at their discretion, enough of the proceeds of my estate to properly meet any necessary additional expenses needed by her during her lifetime.

'5. On the death of said Carolyn P. Jamieson, I direct that Ten Thousand ($10,000.00) Dollars shall be given to the Wayne County Medical Society of Detroit, Michigan, for such purposes as they think will be of the greatest value to the work of said Society.

'6. After the death of said Carolyn P. Jamieson and the payment of the bequest to the Wayne County Medical Society, I direct my trustees, or their successors, to divide into two equal parts the remainder of my estate and turn over one part to my sister Louise Duncan, if living, or to her heirs if she is not then living, and I direct that the other part be turned over to my brother, A. Douglas Jamieson, if then living, and if he is not living, it shall be turned over to his heirs.'

A. Douglas Jamieson, testator's brother, died testate in 1956, naming as his sole beneficiary his wife Georgia. Georgia died in 1958, bequeathing 20% of her estate to her niece and two nephews, appellants herein. Carolyn Jamieson, Robert Jamieson's wife and life tenant under his will, died in 1962. Appellants sought in the probate and circuit courts a share of the remainder of testator's estate, basing their claim upon the theory that A. Douglas by will devised his remainder interest therein to his wife Georgia, who, in turn, devised 20% thereof to appellants. In the alternative, appellants claimed that they are entitled to take a share of the remainder upon the theory that Georgia Jamieson, as an heir of A. Douglas, took (in her own right as an heir, and not as sole devisee, of A. Douglas) a vested remainder interest in the estate upon the death of A. Douglas, of which vested remainder she devised 20% to appellants.

Appeal is taken by leave granted from the circuit court's affirmance of the probate court's order which rejected appellants' claims and which directed that the residue of Robert Jamieson's estate be distributed as follows:

'a three-quarters (3/4) part thereof to Louise Duncan, sister of deceased;

a one-eighth (1/8) part thereof to Helen Delbridge, niece of deceased;

a one-eighth (1/8) part thereof to Alice D. Bellamy, niece of deceased'.

Helen Delbridge and Alice Bellamy were surviving daughters of testator's sister Mary, who had died prior to execution of testator's will.

Upon testator's death A. Douglas was devised a vested remainder subject to defeasance by his death before the life tenant. McInerny v. Haase, 163 Mich. 364. ¹ Since he did so die, he had no interest to pass by his will. The pivotal question thus is, did the heirs of A. Douglas (his wife Georgia, ² his sister Louise Duncan and Helen Delbridge and Alice Bellamy, daughters of his predeceased sister Mary) take a vested remainder upon his death not subject to defeasance, as appellants claim, or was their interest then contingent because subject to a condition precedent, that of surviving the life tenant?

It has always been our goal to effectuate, within pertinent statutory and precedential limitations, the expressed will of the testator. There can be no doubt that Robert Jamieson intended that A. Douglas had to survive the life tenant in order to render his interest in the Jamieson estate indefeasible. Testator did not, however, explicitly attach a like condition of survivorship to the heirs of A. Douglas, who were the alternative takers of one-half the remainder under the will. ³ This being so, their interests should be held to have vested indefeasibly upon A. Douglas' death 1) unless we are willing to say that, as a rule of law, secondary remainders to heirs of a primary remainderman do not vest, absent express contrary testamentary language, until the time for distribution of the estate or 2) unless we find that it was the testator's implicit intent that A. Douglas' heirs must survive the life tenant to take.

As to the first proposition, it has long been the law in Michigan that vested estates are to be favored, and that conditions of survivorship will not lightly be implied. Toms v. Williams, 41 Mich. 552, 565, 2 N.W. 814. Indeed, we have characterized as a rule of property not to be disturbed the rule that when ambiguity exists whether a testator intended to condition a remainderman's taking of an estate merely upon survival of the testator or upon survival of the holder of a precedent estate, the latter condition should not be implied. See In re Patterson's Estate, 227 Mich. 486, 490-491, 198 N.W. 958, and Johnson v. Atchinson, 362 Mich. 296, 299, 106 N.W.2d 748.

Analogously, it would seem that no requirement of survival until the time of distribution should be imposed upon secondary remaindermen who are heirs of a primary remainderman, upon the latter of whom was imposed a condition of surviving until the time of distribution, when such requirement was omitted with reference to the heirs.

It is, therefore, surprising to view the result reached by the Court in In re Wagar's Estate, 292 Mich. 452, 290 N.W. 865. There, testator created a trust for the lives of his wife and children, the remainder to four named grandchildren, with a proviso that should any grandchild die before the survivor of the children, his share should be divided among his legal heirs. One grandchild, Wellington, died after the will was executed but before the testator. The Court held properly that Wellington's share nonetheless should be divided among his legal heirs, relying upon Clark v. Mack, 161 Mich. 545, 126 N.W. 632, but added, without citing any authority therefor, that those heirs were to be determined as of the death of the surviving child. ⁴ Such a holding completely ignored the language of prior cases such as Toms and Patterson, supra. The error which our Court committed in Wagar is one which seems to have a fatal attraction for many courts. See L'Etourneau v. Henquent, 89 Mich. 428, 50 N.W. 1077, discussed infra, note 6. The Wagar will when executed made the interest of any grandchild's heir contingent upon the death of the grandchild before that of the survivor of the life tenants. Because the heir's interest was contingent upon this event, the Court apparently concluded that it also must be contingent upon the heir's own survival of the life tenants, a conclusion required neither by policy nor by the express language of the testator. See 2 Simes & Smith, The Law of Future Interests § 594 (2d ed., 1956).

Appellees and the trial court also find comfort in the case of Hay v. Hay, 317 Mich. 370, 26 N.W.2d 908. There a trust was created to last until the death of the survivor of two grandchildren, whereupon the estate's realty was to be distributed among testator's 'legal heirs'.

We note that Hay, inasmuch as it involves a testator's heirs rather than the heirs of a primary remainderman, is not directly in point. However, we examine it and like cases because their consideration of the problem of when a testator's heirs are to be determined in the absence of express directions by him may be of use in the analogous situation involving determination of the heirs of a primary remainderman named to take as secondary remaindermen.

Over the dissent of Justices Reid and Bushnell, five members of the Court held in Hay that testator's heirs should be determined at the time of the termination of the trusts, rather than at testator's death, thereby suspending the vesting to the remainder until the death of the survivor of testator's two grandchildren, the life beneficiaries of the trust.

The will in Hay disposed of a multimillion dollar estate by means of complicated trust provisions, with ultimate distribution of the corpus postponed almost inevitably for half a century or more. The majority opinion recognized that ordinarily early vesting is favored, that heirs are determined as of testator's death, that...