Merkel v. Long
| Decision Date | 01 October 1962 |
| Docket Number | No. 63,63 |
| Citation | 117 N.W.2d 130,368 Mich. 1 |
| Parties | Frances Gray MERKEL, Charles C. Merkel, Elizabeth Gray Sackett, Nelson B. Sackett, Ann Gray Sherer, Joseph S. Sherer, Jr., Ann Brown Toland, John N. Brown, Paul G. Brown, Waldo H. Brown, David G. Brown, Frances Sackett Borst, Nelson B. Sackett, Jr., Paul R. G. Sackett, Ann Sherer Paddock, Joseph S. Sherer, III, Samuel B. Sherer, Stephen Sherer, Plaintiffs and Appellees, v. Irvin LONG and Mack Ryan, Successor Trustees under the will of Paul R. Gray, Deceased, Defendants and Appellants, George O. Sackett, II, a mentally incompetent person, Frances Merkel, Edward R. Toland, Jr., Frances Toland, Waldo H. Brown, III, Thomas N. Brown, Sarah Noble Brown, Peter G. Brown, Alan Willis Borst, Jr., Lydia Sherer, Myron Sherer, Juliette Sherer, Lucy Sherer, Joseph S. Sherer, IV, Brian Sherer, Paul Sherer, Samuel B. Sherer, Jr., and the Unknown, Unborn, Unascertained Heirs, Devisees and Legatees of Frances Gray Merkel, Elizabeth Gray Sackett, and Ann Gray Sherer, Benjamin H. Paddock, IV, and the Unknown, Unborn, or Unascertained persons who would be the heirs of Paul R. Gray, Deceased, if such heirs were determined as of each of the successive times immediately following the death, as each occurs, of each of Frances Gray Merkel, Elizabeth Gray Sackett and Ann Gray Sherer, Defendants. |
| Court | Michigan Supreme Court |
Long, Ryan, Grylls, Franseth & Spicer, Detroit, for appellants.
Lewis & Watkins, Detroit, for appellees Frances Gray Merkel and others.
Samuel M. Lane, New York City, for appellees Elizabeth Gray Sackett and others.
Dickinson, Wright, McKean & Cudlip, Detroit, for appellees Ann Gray Sherer and others.
Before the Entire Bench.
This is a chancery action, filed under the so-called Dodge act ), for approval of an agreement to settle a controversy as to the construction and effect of certain provisions of the last will and testament of Paul R. Gray and as to the rights of persons thereunder. The trial court entered an order approving the agreement and authorizing and directing the successor trustees under the will and the duly appointed guardians ad litem to enter into and execute the agreement of settlement and so complete it in conformity with the governing statute. Defendant successor trustees under the will declined to sign and took this appeal. Hereinafter they will be referred to as the trustees.
Testator died in 1929 leaving surviving him as sole heirs at law his widow and 3 married daughters who are all the children he ever had. His will was admitted to probate. After specific bequests, it devised and bequeathed the residue of his estate to his executor and trustee, in trust, for specific purposes, with directions that he 'shall then set apart one-third (1/3) for the use of my wife and shall divide the remainder into as many portions or shares as there are children of mine living, or deceased children leaving lawful issue, and a share shall be set apart by my said trustee for each child of mine living, and the share of each deceased child shall be divided into as many portions as there are children living at my death of such deceased child, and a share shall be set apart for each such child.' The will then directed the trustee to pay the net income from the wife's share to her and provided that at her death the principal sum of her share shall be distributed as the laws of Michigan provide. Next, the will directed the trustee to pay the net income of each child's or grandchild's share to such child or grandchild 'so long as he or she shall live, at which time the whole of his or her share shall be distributed as the laws of Michigan provide.' The italicized language for distribution, at their deaths, of the shares of the three daughters (because none of his children predeceased him) as the laws of Michigan provide presents the question sought to be settled by the agreement.
Testator's widow received the prescribed income during her lifetime. She died in 1945, leaving as her sole heirs at law the 3 daughters who, with her, had been testator's sole heirs at law at his death. The principal sum of the widow's share was then distributed and divided equally between the 3 daughters, becoming their property outright.
As far back as in 1955 question arose in the minds of the 3 daughters, their husbands and their counsel concerning the above noted testamentary provisions. Counsel for some of plaintiffs advised that the words in question could be interpreted as providing, at the death of each of the 3 daughters, respectively, for any one of the following:
'(1) Corpus to be distributed to heirs of the life beneficiary.
'(b) determined as of the date of life beneficiary's death.
'(3) Corpus to become part of the estate of the life beneficiary, and pass by her will if she left one, or to her heirs if she should die intestate.
'(4) The corpus to be distributed as the life beneficiary may provide by the exercise of a power of appointment.'
The settlement agreement was entered into in 1960. It was signed by the 3 daughters, their husbands and all of their adult children, except one of the latter who was mentally incompetent. The signers are also plaintiffs in the case. Named as defendants are the 2 successor trustees under the will, who also are the appellants here, the mentioned mentally incompetent grandson of testator, the minor children and the grandchildren, all of whom were minors, of the 3 daughters, and the unknown, unborn, unascertained heirs, devisees and legatees of the 3 daughters and of testator, determined as of each of the 3 successive times when one of the 3 daughters should die. Guardians ad litem were appointed for all of these defendants who could not act for themselves, who appeared and made reports and recommendations to the court favorable to this settlement. The 2 trustees appeared and alone contested this action.
Pertinent provisions of the agreement as presented to the court read as follows:
'1. Paragraph THIRD (e) of the Will of the Deceased shall finally and for all purposes be construed to provide that upon the death of each of the daughters of the deceased named in Paragraph (b) above, the trust for her benefit shall terminate and the entire corpus thereof shall be distributed as follows:
After hearing, plaintiffs submitted a proposed order approving the agreement and authorizing and directing its signature by the trustees and the guardians ad litem. Defendant trustees thereupon filed objections to the proposed order. Their main objection went to the requirement in the order that they sign the agreement. They stated in their objections a willingness to sign the agreement, amended as hereinafter indicated, if the order or decree should approve such amendment by containing in it a provision as follows:
'CLAUSE IN DECREE DIRECTING SIGNATURE BY TRUSTEES
'Trustees Irvin Long and Mack Ryan have no interest in the ultimate distribution of the trust assets when the several trusts expire, except that they must obey the order of the Probate Court of Wayne County in respect to such distribution and the division of same between the parties as such Court shall determine to be entitled thereto. Wherefore, they are hereby authorized to sign the agreement attached as Exhibit A to the bill of complaint in the manner following:
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