Russell v. Musson

• Decision Date: 01 December 1927
• Docket Number: No. 154.,154.
• Citation: 216 N.W. 428,240 Mich. 631
• Parties: RUSSELL et ux. v. MUSSON et al.
• Court: Michigan Supreme Court

240 Mich. 631

216 N.W. 428

RUSSELL et ux.

v.MUSSON et al.

No. 154.

Supreme Court of Michigan.

Dec. 1, 1927.

Appeal from Circuit Court, Ionia County, in Chancery; Royal A. Hawley, Judge.

Bill by Guy Broas Russell, as executor of the estate of Josiah Charles Russell, and another, against Sarah Musson and others. From decree rendered, both parties appeal. Affirmed in part. Reversed in part.

Argued before the Entire Court.Glenn D. Mathews, of Ionia (Geo. E. Nichols, of Ionia, of counsel), for plaintiffs.

D. Hale Brake, of Stanton, for defendants.

BIRD, J.

This bill asks the court to construe the will of Josiah Charles Russell. Josiah Charles Russell was a well-to-do farmer in Ionia county. Most of his property was in real estate. He made the will in February, 1916. In 1921 he was declared incompetent by the probate court, and his son was appointed his guardian. He remained incompetent until he died, in September, 1924. His son, Guy Broas Russell, was testator's sole heir. The son was 52 years of age, and his wife, Clara, was 49, when the proofs were taken in this case. They were childless, and in 1923 they duly and legally adopted two children, a girl and a boy. The material part of the will follows:

‘Second: I give, bequeath and devise to my son, Guy Broas Russell and to Clara B. Russell, the wife of said Guy Broas Russell, jointly, of the township of Otisco aforesaid, the absolute use and enjoyment, together with the income and profits of my personal property my home farm consisting of one hundred and sixty (160) acres of land in the township of Otisco, and also my houses and lots in the city of Belding, in said county, for their absolute use, possession and enjoyment for and during the period of their natural lives, they to keep the buildings and improvements upon said premises in good and substantial repairs and they shall not alienate or encumber the title to said land and premises or allow the same to become clouded in the title thereof in any manner whatsoever; they shall have the right to use the timber upon said premises in the construction of buildings, fences upon the said premises, and to use the dying and decaying timber for firewood, but they shall not under any circumstances sell or move off from said premises any of the timber thereon.

‘Third: In case my said son, Guy Broas Russell, shall have children surviving him, I do hereby give and bequeath and devise the rest, residue and remainder of my real estate and personal estate to such children, their heirs and assigns forever.

‘Fourth: After the death of my said son, Guy Broas Russell and his said wife, Clara B. Russell, in case my said son shall die without children, then I give, bequeath and devise all the rest, residue and remainder of my said estate to Josiah Charles Musson and Hannah A. Musson, and to their heirs and assigns forever, share and share alike, the said Josiah Charles Musson and the said Hannah A. Musson being the son and daughter of Charles and Sarah Musson, of the township of Belvidere, Montcalm county, Michigan, the said Josiah Charles Musson having been named after me, and the said Hannah A. Musson having been named after my deceased wife, Hannah A. Russell. This bequest and devise is subject, however, to the following provisions, that they, the said Josiah Charles Musson and Hannah A. Musson, if necessary, shall care for and support in a suitable manner and in keeping with her station in life, their mother, Sarah Musson, during her declining years, and the said bequest and devise is hereby charged with such support. Should either said Josiah Charles Musson or said Hannah A. Musson die without issue, then I give, devise and bequeath the said rest, residue and remainder of my said real and personal property to the survivor of them, and in case both of said children shall die without issue, I give, devise and bequeath said rest, residue and remainder of my said real and personal estate to their mother, Sarah Musson, her heirs and assigns forever.’

The questions about which advice is sought are: (a) Do the adopted children take under the will? (b) Does the will violate the statute by suspending the power of alienation longer than for two lives?

(a) The fact that the children were regularly and legally adopted under our statute (Act 70 of the Laws of 1923) is rather persuasive that the children would take under the circumstances presented here. But the rule appears to hold otherwise:

‘The word, ‘children’ does not usually include an adopted child, notwithstanding a statutory provision investing an adopted child with a right of inheritance from the adopting parent, unless it is manifest, from the language of the will and the surrounding circumstances, as in connection with such a statute that the testator intended to include such child.' 40 Cyc. 1452.

The cases which have been called to our attention are not numerous, but they all appear to be in accord with this rule. The question appears to turn upon the intention of the testator. Some of the cases involving the question are: In re Leask, 197 N. Y. 193, 90 N. E. 652,27 L. R. A. (N. S.) 1158, 134 Am. St. Rep. 8,18 Ann. Cas. 516; Woodcock's Appeal, 103 Me. 214, 68 A. 821;Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153;Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S. W. 731;In re Yates' Estate, 281 Pa. 178, 126 A. 254;Smith v. Thomas, 317 Ill. 150, 147 N. E. 788.

The last case cited holds that, when a will provides for a child of some person other than the testator, an adopted child is not included, unless the will makes it clear that the adopted child was intended to be included. The rule does not appear to be applicable, where the testator has himself adopted a child.

In the instant case the children were not adopted until after the will was made and testator was declared incompetent. There is nothing in the will which indicates that testator intended they should be included. In view of this we must hold that the adopted children do not satisfy that provision of the will.

(b) This question involves the following statute:

‘Every...