Knorr v. Millard

• Decision Date: 10 June 1885
• Citation: 57 Mich. 265,23 N.W. 807
• Court: Michigan Supreme Court
• Parties: KNORR and others v. MILLARD and others.

23 N.W. 807

57 Mich. 265

KNORR and others v. MILLARD and others.

Supreme Court of Michigan

June 10, 1885

Appeal from St. Joseph.

H.P Stewart, for petitioners.

Dallas Boudeman, for defendant and appellant.

SHERWOOD J.

The petitioners in this case are all legatees under the following clause of the last will of the late William Hutchinson, of Three Rivers, in St. Joseph county, deceased, viz "Fifth. To my nephew, Albert H. Knorr, I give, devise and bequeath the sum of one hundred and fifty dollars, and no more, being the amount of a certain promissory note given to the Manufacturers' National Bank of Three Rivers, which I paid for him, and the residue of the remaining one-fifth of my estate, after deducting therefrom the one hundred and fifty dollars aforesaid, I give, devise and bequeath to the children of my said nephew, Albert H. Knorr, or to the survivors of them, to be placed at interest by my executor, and divided equally between them when they severally become of age; and should any or either of them die before coming of age and leave children, then the share of the child deceased shall be given to them. And I do nominate and appoint Joseph B. Millard, of Three Rivers, Michigan, to be the executor of this my last will and testament."

The following clause of the petition represents the condition of the said Albert H. Knorr and his children: The petitioners are all minors, the youngest having been born since the death of the testator, and the petition is presented and filed by their next friend, Tindal H. Calam, and represents that the children of said Albert "are in a destitute condition, and unable to support and educate themselves, and unless a portion of the funds in the said executor's and trustee's hands is used, your petitioners will be compelled to rely upon the charity of the public for their support;" and prays that the executor of said last will, who is defendant in this case, and who has the trust funds in his hands, "may by an order or decree require the said Joseph B. Millard to pay out of the income from the said trust funds in his hands such an amount to be used in the support and education of petitioners as may be necessary for that purpose, and as to the court may seem just."

The defendant appeared and answered the petition, and in the response thereto admits the probate of the will, and his appointment and acceptance of the trust as executor thereof and that petitioners are the children of Albert H. Knorr, and are all minors; that he has the legacies devised to them, but does not admit that the father is unable to support them, or that they are unable to support themselves, and denies that they are destitute, and avers that the court has no authority to determine the matter mentioned in the...