Mullreed v. Clark

• Decision Date: 29 March 1898
• Citation: 74 N.W. 710,116 Mich. 440
• Court: Michigan Supreme Court
• Parties: MULLREED v. CLARK ET AL.

74 N.W. 710

116 Mich. 440

MULLREED v. CLARK ET AL.

Supreme Court of Michigan

March 29, 1898

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Bill by George Mullreed against Thomas P. Clark and others for partition. From a decree for defendants, plaintiff appeals. Affirmed on conditions.

Walter Barlow, for complainant.

A. F. &amp F. M. Freeman (B. M. Thompson, of counsel), for defendant Anna Clark Thumb.

MONTGOMERY J.

The bill in this case was filed for partition of 100 acres of land situated in the township of Van Buren, Wayne county Mich. The land was formerly owned by Thomas Phillips deceased, who devised it by the terms of his last will to his wife, and after her death to James Phillips, his son, upon condition that said James Phillips pay to testator's two daughters, Mary and Jane Phillips, $1,000 each, within three months after testator's death. This money was paid by James Phillips within the time specified in the will. The will contained the further provision that, in case of death of James Phillips without heirs (meaning issue), the real estate should go to testator's two daughters, Mary and Jane Phillips, but, in case of death of Mary or Jane without heirs (meaning issue), then their share shall go to "the other sister." The testator's wife died prior to his death. Thomas Phillips, the testator, died July 1, 1877; and his will was duly probated in the Wayne probate court on August 6, 1877. Mary Phillips died June 12, 1877, without issue. Jane Phillips died February 23, 1890, without issue. Elizabeth Clark, a daughter of said testator, died July 30, 1892, leaving Thomas P. Clark and John F. Clark, sons, and Jennie Clark Mullreed and Anna Clark, daughters, her only children and heirs at law, her surviving. James Phillips died September 17, 1893, without issue. By a decision of this court made July 21, 1896, construing the will of said Thomas Phillips, it was held that inasmuch as James Phillips, Mary Phillips, and Jane Phillips died without issue, the title to said real estate went to Elizabeth Clark, under the meaning of the words "the other sister," contained in said will, and that her heirs and their assigns were now the owners of said land. See Mullreed v. Clark (Mich.) 68 N.W. 138, 989. Prior to the controversy over the meaning of the terms of the last will of said Thomas Phillips, deceased, Anna Clark and Jennie Clark Mullreed exchanged real estate under the arrangement shown by their respective deeds, and the contract under which the deeds were executed. These deeds were made June 14, 1894. The deed from Anna Clark (now Anna Clark Thumb) conveyed to Jane Mullreed (also known by the name of Jennie Clark Mullreed) the grantor's interest in "all these certain pieces or parcels of land situate in the township of Van Buren, Wayne county, Michigan, described as follows, to wit: The east half (1/2) of the northeast quarter (1/4) of section thirty (30), and also the west part of the southwest fractional quarter (1/4) of section twenty (20), town three (3) south, range eight (8) east, containing one hundred (100) acres of land, be the same more or less,"-the lands described in the bill in this cause. The deed from Jane Mullreed to Anna Clark conveyed the S. 1/2 of the W. 1/2 of the W. 1/2 of the N.W. 1/4 of section 19, township of Bridgewater, Washtenaw county, Mich.,-24 acres of land, more or less. The deed from Anna Clark conveyed about 25 acres of land; hers being a one-quarter interest in the 100 acres in question. And the deed from Jane Mullreed conveyed about 24 acres. Jennie Clark Mullreed died April 4, 1895, leaving a last will, in which George Mullreed, her husband, the complainant herein, is named as her sole legatee. Her said will has been duly probated in the Wayne probate court, and her estate closed, and the residue assigned to George Mullreed by the order of that court. The deed from Anna Clark (now Anna Clark Thumb) to Jennie Clark Mullreed conveyed lands described as follows: "The east 1/2 of the north-east quarter of section number thirty, containing eighty acres of land, more or less, and the west part of the southwest fractional quarter of section number twenty (20), containing twenty (20) acres of land, more or less, and all in the township of Van Buren, Wayne county, Michigan, and containing in all one hundred (100) acres of land, more or less. The express intent of this instrument being to convey all the right, title, and interest of Anna Clark in and to the above premises by reason of her being an heir at law of James Phillips, who in his lifetime was possessed of said above-described premises, and said James Phillips now being deceased." These deeds were not delivered at their date to the respective grantees, but were deposited with F. M. Freeman under an agreement executed by the parties contemporaneously with the execution of the deeds, which agreement recites that Mrs. Mullreed had filed a claim against the estate of James Phillips, which had...