Kinney v. Kinney
| Decision Date | 13 June 1876 |
| Citation | 34 Mich. 250 |
| Court | Michigan Supreme Court |
| Parties | Drusilla Kinney v. John Kinney |
Heard April 20, 1876
Case made from St. Clair Circuit.
Probate judge affirmed, and that of the circuit court reversed, with costs of that court. Order affirming that the probate court remitted to both the lower courts.
B. C Farrand, C. R. Brown and O' B. J. Atkinson, for Drusilla Kinney.
Chadwick & Potter and Hoyt Post, for John Kinney.
The controversy in this case is upon the construction of one clause in the will of Arnold Kinney, which is as follows: "I give and bequeath to my wife Drusilla, if she shall survive me, so much of my property, both real and personal, as is allowed by law to widows in cases where no will is made, or in lieu of personal property allowed her by law, I give and bequeath to her five hundred dollars, to be taken by her in case she shall so elect, instead of the said personal property aforesaid." The widow elected to take what she would be allowed by law if there was no will.
The provision made by statute for the widow of an intestate is as follows:
1. An allowance for her support while the estate is in process of settlement.
2. Household furniture and other personal property to be selected by the widow, to the amount in all of four hundred and fifty dollars.
3. When the intestate leaves children, as was the case here, the widow, in addition to the provision already mentioned, takes one-third of the remaining personal estate after debts are paid.
4. The widow has her dower interest in the husband's real estate.
The paragraph of the will upon which the question arises is not expressed in ambiguous terms, and there can be no difficulty in giving effect to the apparent intent manifest in it. But it is claimed on behalf of the heirs that the apparent intent was not the real intent existing in the testator's mind when the will was made. To prove this, resort has not been had to direct testimony, but the condition of the estate is proved, and it is said there springs from this an inference amounting to practical demonstration, that the intention of the testator was not what the language he has employed would indicate.
The fact on which reliance is chiefly placed is, that the personal property of the testator amounted at the time the will was made to twenty-five thousand dollars. The widow, if entitled to one-third of this, would receive something like eight thousand dollars, besides the temporary provision for support, and the four hundred and fifty dollars in specific chattels selected by her. To give her the alternative of selecting between eight thousand dollars and five hundred dollars would be an absurdity of which it is supposed no reasonable man would be guilty, and it is said we must assume that something different was intended. If we are at liberty to infer that by the "personal property allowed her by law" the testator intended only the specific property to the value of four hundred and fifty dollars, which the widow is allowed to select, the difficulty will disappear. Five hundred dollars in cash as the alternative to specific property of the value of four hundred and fifty dollars would afford a choice that might reasonably be presented to any one; and it may fairly be considered a sensible deduction from all the circumstances, when these are brought into the case by proofs, that it was this reasonable alternative which it was the purpose of the testator to present, rather than one manifestly absurd from the great diversity in value of the two things between which the choice was to be made.
But this method of ascertaining the testator's intent takes us away from a consideration of his language, in which he must be supposed to have carefully expressed his wishes, and invites us to conjecture what probable purpose he had in view which he has failed to express. Whatever may be the probabilities that we shall thereby reach the testator's real intent, it is manifest that this method is not putting a construction upon the will made by him, but it is making a new one of quite a different purport.
There are cases in which, when a man's will is examined in the light afforded by his property and by a knowledge of the persons who were or who may have been the objects of his bounty, some ambiguity may appear which can only be solved by a resort to parol evidence in aid of the construction. Language may be employed which seems to point with more or less directness to two different persons as the intended beneficiary, or a description of property may seem to fit one parcel as well as another. In such cases the testator must be supposed to have had only one of the...
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