Powers' Estate, In re

• Decision Date: 09 January 1961
• Docket Number: Nos. 35-38,s. 35-38
• Citation: 106 N.W.2d 833,362 Mich. 222
• Parties: In the Matter of the ESTATE of Lunette I. POWERS, Deceased. Appeal of ROGOSKI.
• Court: Michigan Supreme Court

Page 833

106 N.W.2d 833

362 Mich. 222

In the Matter of the ESTATE of Lunette I. POWERS, Deceased Appeal of ROGOSKI.

Nos. 35-38.

Supreme Court of Michigan.

Jan. 9, 1961.

Oscar E. Waer, John C. Cary, Grand Rapids, for appellant.

Varnum, Riddering, Wierengo & Christenson, Grand Rapids (F. William Hutchinson, Grand Rapids, of counsel, for John L. Wierengo, Jr., guardian ad litem.

John S. White, Muskegon, for appellees Phyllis E. Soles Anderson, Herbert B. Whitten, guardian for Theresa Metcalf Whitten, M. I., and Phyllis E. Soles Anderson, guardian for Wesley Byron Soles, M. I.

Before the Entire Bench.

EDWARDS, Justice.

In this case a Michigan lawyer drafted a will (and 2 codicils thereto) which left the bulk of an old lady's estate of three-quarters of a million dollars to the lawyer's wife. The particular will in dispute was the last of a series of wills and it and its codicils were executed within a period of 2 years before the testatrix was committed to a mental institution where she subsequently died.

The will preceding the last will provided for certain charities to be established. The prosecuting attorney of the county, a guardian ad litem appointed by the circuit court to represent the charitable trusts, and certain distant relatives all seek to contest the last will and set it aside on grounds of fraud and undue influence and the mental incompetence of the testatrix.

The will contest brought by the named contestants having been certified to the circuit court for hearing, the proponent of the will appeals asserting various irregularities in the will contest procedure and that there is no proper party before the court who can bring the will contest.

We find the proceedings in this point regular in all respects, and further find that the named parties are proper parties in interest to contest the will except (as will be indicated later) for the guardian ad litem appointed by the circuit court.

The detailed dates and facts relevant to this appeal follow:

Lunette I. Powers died March 24, 1959. She had been a practicing physician in Muskegon for many years, having graduated from Northwestern Medical School in 1897.

During her lifetime she had made a number of wills. Of these we will have occasion to refer in particular to the last 2--one executed in 1952, the other in 1955.

By the terms of the 1952 will, after certain specific bequests, testatrix set up a residuary trust for one Kathryn A. Mann, whom this record shows to have predeceased testatrix. The will then provided further:

'Upon the death of my good friend, Kathryn A. Mann, said trust shall terminate and my trustees shall pay over the corpus to such one or more entities, free from trust, in such manner and in such proportions as my said trustees may appoint by deed; provided, that each such appointee shall (1) be organized and operated exclusively for religious, charitable, scientific, literary or educational purposes, (2) not permit any part of its net earnings to inure to the benefit of any private shareholder or individual, (3) not have as a substantial part of its activities carrying on propaganda or otherwise attempting to influence legislation, (4) qualify under the provisions of Section 101(6), Section 1004(a)(2) and Section 812(d) of the Internal Revenue Code (or such sections as may be substituted therefor) as they obtain at the time of my death, and (5) qualify for tax exemption under all income, gift, and death taxes of the State of Michigan which may obtain at the time of my death; provided, that if no charitable agency is entitled to exemption under such Federal and Michigan laws, conditions (4) and (5) shall be disregarded.'

Implementing this paragraph were a number of precatory expressions by which testatrix sought to indicate the sort of charitable work she desired to have carried out.

December 7, 1955, testatrix executed another will. This will, after reciting some relatively specific small bequests, in paragraph 7 bequeathed 1/5 of the estate to each of 3 persons: Alexis J. Rogoski, Bart D. Buck and Loretta E. Rogoski. This will also contained a residuary clause leaving all the residue to Loretta E. Rogoski.

On December 22, 1955, a codicil to this will was executed which changed the amounts specified in paragraph 7 from 1/5 of the estate to 5%. The residuary clause in favor of Loretta E. Rogoski was not changed by that codicil, nor by another codicil dated November 14, 1956, which added specific bequests tataling no more than $4,600.

The pleadings concede that the 1955 will and the 2 codicils thereto were drafted by Alexis J. Rogoski, attorney for Dr. Powers. Loretta E. Rogoski is his wife.

On May 15, 1957, Dr. Powers was committed to Traverse City State hospital as a mentally ill person. The contestants allege that at the time she was suffering 'from progressive senile psychosis' of long-standing duration. Dr. Powers died in that hospital March 24, 1959.

On March 26, 1959, Alexis J. Rogoski, who with Bart D. Buck had been named executors and trustees under the 1955 will, filed a petition for probate of the 1955 will. On April 1, Bart D. Buck filed a declination of trust in the Powers estate.

On May 8, 1959, the prosecuting attorney of Muskegon county filed a petition in the circuit court for Muskegon county seeking appointment of a guardian ad litem to represent and protect the interests of the undetermined and unknown charitable beneficiaries under the 1952 will. On the same day, the 2 circuit judges for Muskegon county appointed John L. Wierengo, Jr., guardian ad litem.

Subsequently the guardian ad litem, the prosecuting attorney of Muskegon county and certain heirs-at-law filed objections in probate court to the probate of the 1955 will, and petitions for certification of the will contest to the circuit court. The proponent filed motions to dismiss the objections and to deny certification. After hearing proofs and arguments, the probate judge certified the will contest to the circuit court and entered an order holding in part:

'It is ordered and adjudged that John L. Wierengo, Jr., guardian ad litem is not a proper party in interest to appear in these proceedings, the relief prayed for in his petitions is hereby denied, and he is hereby dismissed as a party in interest to these proceedings.

'It is ordered and adjudged that the heirs-at-law, the prosecuting attorney for the county of Muskegon, and the proponent Alexis J. Rogoski are proper parties in interest in these proceedings.'

The guardian ad litem on instructions of the circuit court appealed the probate court order dismissing him as not being a proper party in interest. The proponent Rogoski likewise appealed the other provisions of the probate court order.

After hearing before a visiting circuit judge, these appeals were determined by an order reversing the probate court as to the guardian ad litem and holding him to be a proper party in interest and affirming all the balance of the probate court order. He also considered and granted a petition for fees and expenses for the guardian ad litem and his attorneys in the sum of $2,718 to be paid from the estate.

At this same hearing the visiting circuit judge also heard and denied a petition from Rogoski to dismiss the probate court certification of the will contest and to require all contesting parties to furnish security for costs.

Proponent and appellant Rogoski, in 4 separate cases (all of which are consolidated for appellate purposes) contends that the circuit judge was in error on all of these determinations.

On the face of the matter it appears that issues of some significance are presented by this will contest. Appeal bonds have apparently been filed by the heirs-at-law and by the guardian ad litem. See C.L.1948, § 701.39 (Stat.Ann.1959 Cum.Supp. § 27.3178). We find no reason to hold that the circuit judge abused his discretion in refusing appellant's petition for additional security for costs.

As to questions presented pertaining to which, if any, contestants were proper parties in interest to contest the will, we turn first to the heirs-at-law in relation to whom some factual material must be added.

The heirs-at-law are distant relatives of Dr. Powers. It is conceded on this record that if Dr. Powers had died intestate, they were of such relationship as to qualify as heirs-at-law. It also appears conceded that none of them had had any contact with Dr. Powers for many years, and that in all except 1 of 7 successive wills Dr. Powers had employed language which showed an intention to disinherit them.

Thus appellant contends in effect that even if the 1955 will were successfully contested, the heirs-at-law would be barred from any interest by one of the prior wills. Proper execution of these prior wills is conceded but, of course, none of them has been probated and approved.

The question thus posed has apparently never been answered directly in Michigan; but it has been answered with differing results in other States. Thus, Kansas, ¹ Kentucky ² and Georgia ³ have held that the right of heirs-at-law to contest a will was not cut off by the possible effect of prior unprobated wills, while Tennessee ⁴ and Louisiana ⁵ held the opposite.

We believe the Kansas, Kentucky and Georgia view to be the preferable one for us to adopt. Under Michigan law, no prior wills can serve to pass title to property (or to disinherit) until and 'unless it shall have been duly proved and allowed.' C.L.1948, § 702.20 (Stat.Ann.1943 Rev. § 27.3178 ).

In re Dutton's Estate, 347 Mich. 186, at page 191, 79 N.W.2d 608, at page 610, this Court said:

'An instrument submitted as a final testament enjoys no legal distinguished from evidentiary worth unless and until it is authenticated by judgment.'

We believe the courts below were right in holding that the heirs-at-law were not barred as contestants by prior unprobated wills.

The other issue concerning the right of the heirs-at-law to contest this will...