Kelly v. Reynolds

• Decision Date: 29 October 1878
• Citation: 39 Mich. 464
• Court: Michigan Supreme Court
• Parties: Ann J. Kelly v. William Reynolds

39 Mich. 464

Ann J. Kelly v. William Reynolds

Supreme Court of Michigan

October 29, 1878

Submitted October 16, 1878

Certiorari to Macomb Circuit Court.

Appeal to the Circuit Court from an order of the Probate Court dismissing a petition by Ann J. Kelly, executrix of the will of Lola Reynolds, asking for the assignment to her, as executrix, of one-third of the residue of the estate of decedent's husband John Reynolds, such portion of the estate being held by his executor William Reynolds. The Circuit Court affirmed the order, and the petitioner brings up the proceedings by writ of certiorari.

Judgment reversed, and case remanded.

Crocker & Hutchins for plaintiff in certiorari cited as to construction, Lloyd v. Rambo, 35 Ala. 709; Smith v. Martin 18 Ala. 819; Brown v. Brown, 2 Ired. Ch., 309.

Irving D. Hanscom and A. B. Maynard for defendant in certiorari cited Miller v. Stepper, 32 Mich. 194.

OPINION

Cooley, J.

What did the testator mean by the first clause in his will, is the only question which this record presents. The plaintiff says he meant to have his widow take so much of his estate as would have passed to or been set off to her under the statutes had he died intestate. The defendant, on the other hand, says his intent was that she should take so much only as she would take under the statute after giving effect to all the gifts he makes to others by the will. The difference is important; according to the one construction the widow would share in the personal estate after the legacies to the daughters and the debts and expenses were paid; according to the other the whole of the residue would go to William.

The testator begins his will by saying, "To my wife the provision made for her by the statutes of this State I deem sufficient." If this were the only clause in the will, the widow unquestionably would take as in case of intestacy. The clear purpose would then be held to be that the widow should take the provision the statutes give her: the same provision; no more, but also no less.

Nothing that by any construction can be held to declare a different intent is found until the residuary clause is reached. By that the testator gives to William "all the residue of my estate, after paying the above bequests and legacies, and my debts and the expenses of settling my estate." This, it is said, gives the whole personalty to William, deducting only bequests, legacies, debts and expenses, and also certain allowances which the statute makes the widow in every case, and over which the testator has no control. Those allowances the widow has had in this case.

Now the argument for the executor is that the first clause gives nothing to the widow; it merely leaves her to take under the statutes. It does not, therefore, constitute a bequest or legacy; and as William is to have the whole residue, deducting bequests, legacies, debts and expenses only, it follows that nothing can be deducted as a statutory...