Rood v. Hovey

• Citation: 50 Mich. 395,15 N.W. 525
• Court: Supreme Court of Michigan
• Decision Date: 25 April 1883
• Parties: ROOD and another v. HOVEY and another.

15 N.W. 525

50 Mich. 395

ROOD and another v. HOVEY and another.

Supreme Court of Michigan

April 25, 1883

A testator bequeathed a life estate to his widow, remainder to his children "now living, or who may be at the time of her decease," to be equally divided. All his children survived him, but two died before the widow, and one left a widow and children. Held that, under the policy of Michigan statutes and decisions, the estate in remainder vested on the testator's decease, and that the heirs at law of the deceased son were entitled to the share of their ancestor.

The policy of Michigan statutes favors vested estates rather than those which are contingent.

Wills operate from the testator's death, and the estates devised therein vest at that time, unless the will contains some provisions to the contrary.

Appeal from Lenawee.

Bean &amp Underwood, for complainants.

Millard, Weaver & Weaver and E.H. Rhoades, for defendants and appellants.

CAMPBELL, J.

The controversy in this case turns on the question whether under a will, which created a life interest in lands, the remainder belonged to those children who were living at the death of the testator, or to those only who survived the life tenant. Defendants are the widow and heirs of one of testator's children who survived him, but who died during the life tenancy referred to. The will of Lansing Rood was executed February 14, 1859, and he died in the following April. All of the children living when the will was made survived him, and he had no posthumous children. He left a widow, Rhoby Rood, and five sons,--Almond B., George R Ralph M., Asher B., and Albert G. The widow lived until March 24, 1881, and never remarried. Almond B. died unmarried and without issue a few years after his father. Ralph Rood died in 1879, leaving a widow and child, who are defendants. The complainants are the other surviving sons. The will in question, after disposing of the personal property, made the following disposition of the real estate: "I do give and bequeath to my wife, Rhoby Rood, all my real estate, to be used and enjoyed by her as long as she shall remain my widow and immediately after her decease or marriage, I give and bequeath to my son Asher B. Rood $100, to be paid him out of my real estate. I give and bequeath all the rest, residue and remainder of my real and personal estate to my children now living, or who may be at the time of her decease or marriage, to be divided equally between them, share and share alike." As there was no change in his family before his death there is no difficulty in determining who were meant by children "now living," and there was no child not then living. But two of the children then living afterwards died, and the question now raised is whether by their...