Jenks v. Trowbridge's Estate

• Citation: 11 N.W. 822,48 Mich. 94
• Court: Supreme Court of Michigan
• Decision Date: 12 April 1882
• Parties: JENKS v. TROWBRIDGE ESTATE.

11 N.W. 822

48 Mich. 94

JENKS v. TROWBRIDGE ESTATE.

Supreme Court of Michigan

April 12, 1882

Where a person died intestate, leaving him surviving a widow and several children, and subsequently one of the children died a minor, and unmarried, held, that the share of the personalty coming to the deceased child by inheritance from the father should, upon the death of such child, be distributed, under the provision of subdivision 3 of section 4309, Comp.Laws, in equal shares to the mother and brothers and sisters, and that subdivision 6 of such section did not apply.

Error to Wayne.

Wisner & Speed, for plaintiff in error.

John H Bissell, for defendant in error.

GRAVES C.J.

This is a writ of error to revise an order of the circuit court based upon a state of facts found and reported by the judge, and the charge of error is that the order is not warranted by the facts. The case is explained by the finding which appears in the margin. ^[*]

The controversy arises on the last clause of subdivision 6 of � 4377, Comp.Laws, prescribing the course of distribution in a class of cases of which this is one. It reads as follows: "In any other case the residue, if any, of the personal estate shall be distributed in the same proportions, and to the same persons, and for the same purposes, as prescribed for the descent and disposition of the real estate." Being thus referred to the provisions regulating descent and inheritance we turn thereto and find that the only ones necessary to be quoted are subdivisions 3 and 6 of � 4309. The former being subdivision 3, and speaking of the person deceased, reads as follows: "If he shall leave no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters and to the children of any deceased brother or sister by right of representation: provided, that if he shall leave a mother also, she shall take an equal share with his brothers and sisters."

Subdivision 6 provides that "if any person shall die leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation."

It was found by the circuit court as by the court of probate that the circumstances were such as to subject the share of real estate which came to decedent by inheritance from his father to the operation of this subdivision, and the accuracy of this conclusion is not questioned. But both courts held further that the last clause of subdivision 6 before quoted, for the distribution of personal estate, had the effect to apply this real-estate provision to the personal property which came to decedent in character of distributee and including all items which had become substituted in the course of traffic or had been superadded in the form of gains, and as a consequence of this construction Mrs. Jenks the mother was excluded from all participation in her son's estate. This view the administrator sustains here.

The counsel for Mrs. Jenks controvert it and contend first and chiefly that subdivision 6 of the statute providing for real property is not at all contemplated by the last clause of subdivision 6 relating to the distribution of personal property, and that the exceptional provision which allots the particular share inherited from a parent, to the children and grandchildren of that parent, is not in anywise appropriated to the distribution of personal estate. That the reference to the law of descent made in the statute of distribution is to the general provisions, and that this case by force of its own circumstances is assigned to the rule given in subdivision 3 before cited, and hence that Mrs. Jenks is entitled to share in the personal estate equally with her children, the brother and sisters of decedent. The clause of the statute of distributions which declares that the personal estate "shall be distributed in the same proportions and to the same persons" "as prescribed for the descent and disposition of the real estate" is not very apt. And whether the purpose was to transfer to the distribution of movable property the rule of succession ordained specifically for ancestral fixed property, or whether it was to have recourse only to the other and general rules governing descent, might naturally produce discussion. Neither view is devoid of reason.

The establishment of the rule relative to ancestral property concedes its justice when applied to land and if just in respect to land why not in respect to personal property. The statute nowhere says that movable property shall not be treated as ancestral, and why make a distinction and submit the case to the operation of the sixth subdivision where the property is real estate, and withdraw it when the property is personal. Whatever force may be due to these and other suggestions there are considerations on the other side which preponderate. We have seen how the right of succession provided for in subdivision 6 (section 4309) is dependent on specified conditions, and that the presence of all the conditions is indispensable to the right. The "persons" there mentioned can only become entitled to take and be the "persons" prescribed as successors by inheritance in the event that all the conditions exist, and one of these conditions not inferior to any other is that the decedent shall have taken the estate by inheritance, The legal sense is manifest. There is nothing equivocal. The terms of the condition peculiarly appertain to real property and do not fit personalty and no change to extend the meaning to the latter which might possibly be permitted in some other case, can be allowed here without a gross perversion of sense.

Now had it been intended to prescribe that personal property should be distributed in the event of certain conditions in a way specially exceptional, it is not likely that the conditions intended would have been flagrantly inappropriate to such property and been left to be spelt out of vague generalities. But the statute of distributions makes no mention of any exceptional limitation and specifies no condition whatever on which to found one. Such being the case no authority is perceived for assigning distribution of personalty to a provision ordaining a special rule of succession for real estate and which depends wholly on conditions provided exclusively for real estate and entirely foreign and inappropriate to personal estate. It would seem to be the dictate of reason to regard the fact that the conditions which are required in this real-estate provision on conditions to which personal property is not subject, as enough to exclude that property from the operation of the provision.

A substitution of facts and terms by which personal estate would be signified instead of real, and the idea of distribution would take the place of the idea of inheritance would be apparently the introduction of a condition not described in the statute rather than a recognition of one intended to be provided for.

We may next inquire whether the legislature could have purposed that all movables should be liable to be impressed with the character of ancestral estate; because if that was the purpose as to any it was the purpose as to all. The provision will not permit any distinction. Without here urging the point that if such had been the intention it would presumably have been declared in explicit terms and not been left in any uncertainty, the attention is directed to the nature, uses, and modes of handling such property and its vicissitudes of ownership as affording reason for thinking it was not meant to consider it as suitable to be classed in the category of ancestral estate. In all its forms it is subject to constant changes. At a given moment it may be in one thing and at the next in another. Transformations may ensue through buying, selling, exchanging, intermixing, or by accident or through some other cause. It may exist in money or in something else resembling money. The particular form may be utterly destitute of stability or substantially incapable of specific identification. Yet the period for which the character of ancestral property may be restrained may exceed 20 years.

The general rule is that distributive rights are not affected by antecedent circumstances connected with the decedent's source of...