Povey v. Povey (In re Povey's Estate)

• Decision Date: 17 May 1935
• Docket Number: No. 49,April Term.,49
• Citation: 271 Mich. 627,261 N.W. 98
• Parties: In re POVEY'S ESTATE. POVEY v. POVEY et al.
• Court: Michigan Supreme Court

271 Mich. 627

261 N.W. 98

In re POVEY'S ESTATE.POVEY

v.POVEY et al.

No. 49, April Term.

Supreme Court of Michigan.

May 17, 1935.

In the matter of the estate of Joseph E. Povey, deceased, wherein Milo O. Povey, administrator, filed proceedings against Eunice I. Povey and another. From a judgment of the circuit court which affirmed an order of the probate court, the administrator appeals.

Affirmed.

Appeal from Circuit Court, Ingham County; Leland W. Carr, judge.

Argued before the Entire Bench.

T. Rogers Lyon, of Lansing, for appellant.

C. F. & E. T. Hammond, of Lansing (Henry L. Schram, of Lansing, of counsel), for appellee.

NORTH, Justice.

The will of Joseph E. Povey, deceased, was admitted to probate in Ingham county. By his will he left to his son, Milo O. Povey, a farm and the personal property thereon. In the balance of his property, both real and personal, testator gave his widow a life estate with the remainder to his daughter, Hazel E. Povey. The widow elected not to take under the provisions of the will, but instead under the provisions of the statutes of descents and distributions. The widow's election not to take under the will has prevented disposition of the testator's estate in full accordance with the terms of his will; and has led to a controversy as to what portion of the property left by the testator should be used to satisfy the widow's statutory inheritance. The order of the probate court, from which there was an appeal to the circuit court, provided for the assignment to the widow pursuant to her election of an undivided one-third interest in all the real estate and in the residue of the personal estate of which the testator died seized. The order of the probate court was affirmed in the circuit court, and is brought to us for review by the appeal of the son, Milo O. Povey.

Appellant does not question the widow's right to take under the provisions of the statutes. See section 13440, Comp. Laws 1929, as amended by Act No. 79, Pub. Acts 1931; and section 15726, Comp. Laws 1929. She may do this by reason of the statutes giving her a right of election. Comp. Laws 1929, § 13085, as amended by Pub. Acts 1931, No. 242, and § 15564. But appellant contends that by the terms of the will he is the recipient of a specific devise, that there is no other specific devise provided by the will, and therefore the widow's inheritance should be satisfied from that portion of the estate not left by the will to appellant. In this connection it is urged that the daughter, Hazel E. Povey, takes as a residuary devisee or legatee, and that sufficient to satisfy the widow's claim should be taken from this residue of the estate. It is contended in appellant's brief that it is a general rule that a specific devise is preferred to a residuary one, and, if the estate is not sufficient to pay a specific devise, the same should be paid at the expense of the residuary legatee, even though the residuary items are mentioned in detail in the will, citing In re Kemp's Estate, 169 Mich. 578, 135 N. W. 270, Ann. Cas. 1913D, 1042.

Appellees' contention is that the widow's election to take under the statute defeated the will as to her and, as stated in appellees' brief, ‘since then, there is no will as to the widow, she takes exactly the portion of the estate had there been intestacy. She takes under the statute of descents which, among other things, gives her a one-third interest of the fee in each and every separate and distinct parcel of land of which her husband died seized.'

It is a general rule applicable to cases of this type that ‘the election to take against the will defeats the intention of testator in part; and the court will endeavor to ascertain his primary intention and to carry it into effect as far as it can be done with the minimum disturbance of the general plan of the will.’ Page on Wills (2d Ed.) vol. 2, § 1224. See, also, In re Schulz's Estate, 113 Mich. 592, 71 N. W. 1079.

Under the statute (Comp. Laws 1929, § 13440, as amended by Pub. Acts 1931, No. 79), the widow, having renounced her rights under the will, inherits a one-third interest in each and every parcel of land of which the testator died seized. Assigning to the widow her statutory inheritance will result in testator's children becoming socalled disappointed legatees or devisees. The amount that each child would have otherwise received under the terms of the father's will is thereby altered. The testamentary plan for distribution of this estate is nullified in part. This brings into the instant case the more perplexing question as to whether possession of that portion of the estate going to the daughter shall be accelerated in consequence of the widow's havig renounced her life estate therein.

It is not possible to lay down a hard and fast rule of acceleration applicable under all circumstances to the distribution of estates wherein the widow has declined to take under the will. But it may be said that it is the duty of courts to accomplish as near as may be done equitably the same result between the beneficiaries as would have resulted from distribution of the estate in accordance with the terms of the will. With this rule in mind, appellant's contention cannot be sustained that, because he is the recipient to a so-called specific devise, he should receive the property devised to him intact, and sufficient to satisfy the widow's statutory interest in the estate should be taken from the remainder of the testator's property on the theory that the daughter is the residuary...