Schiffer v. Brenton

• Decision Date: 08 July 1929
• Docket Number: No. 121.,121.
• Citation: 247 Mich. 512,226 N.W. 253
• Parties: SCHIFFER v. BRENTON et al.
• Court: Michigan Supreme Court

247 Mich. 512

226 N.W. 253

SCHIFFER

v.BRENTON et al.

No. 121.

Supreme Court of Michigan.

July 8, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; DeWitt H. Merriam, Judge.

Suit by Lillian Brenton Schiffer against Arthur S. V. Brenton and others. From the decree, plaintiff and defendant Edward G. Folsom appeal. Reversed and rendered.

Argued before the Entire Bench.

Peter P. Boyle, of Detroit, for appellant Folsom.

Lightner, Oxtoby, Hanley & Crawford, of Detroit, for appellant Schiffer.

Maurice Fitz-Gerald and Frederick P. Hempel, both of Detroit, for appellees.

FELLOWS, J.

Plaintiff is the daughter of Samuel Brenton, deceased, and is the executrix of and beneficiary under his will. There has been no distribution of the estate, and the construction and validity of two clauses of the will were involved in this case. One was of minor importance, and the decree as to it is acquiesced in by all parties. The other question is of importance both in amount involved and in principle and has not been passed upon by this court. This question arises under these circumstances. Arthur and Willis, sons of deceased, were each given $10,000 by the will. They contested the admission of the will to probate, but upon a trial in the circuit the will was sustained and judgment to that effect was there entered. From this judgment, there was no appeal. The sixteenth clause of the will is as follows: ‘16. It is my will that if either of my children, Arthur S. V. Brenton, Willis L. Brenton, Lillian Brenton Schiffer or any other legatees named in this will shall contest this, my last will and testament that they shall not receive the legacy or bequest given them in this will and that the bequest and legacy that would have gone to the one so contesting shall be divided among the ones not contesting this, my last will and testament, share and share alike.’ We are here concerned with (1) the validity of this clause, and, if valid, the further question arises, (2) Upon whom do these legacies devolve? The clause was held to be void on the hearing in the court below as against public policy, and the plaintiff and one of the beneficiaries under the will have appealed.

1. Text-writers and some of the courts state that the decisions dealing with the validity of clauses of similar purport to the one before us are in utter confusion. Some confusion may upon the surface appear. We think, on the main question of the validity of such provisions, such confusion is more apparent than real, and that the confusion is minor and not major. Some cases hold that such clauses are declarations in texrorem and not enforceable as to personal property unless there is (as here) a gift over although at the same time valid without a gift over as to real estate, while other courts, and a vast majority of them, hold that whether there is a gift over or not such clauses are enforceable. In New York the validity of such clauses is upheld but held to be inapplicable to minors, Byrant v. Thompson, 59 Hun, 545, 14 N. Y. S. 28, while in Kentucky, their validity is sustained and they are held to be applicable to minors, Moorman v. Louisville Trust Co., 181 Ky. 30, 203 S. W. 856.

While differences on minor questions exist, in the main the decisions are well nigh unanimous that such conditions in wills are valid and that they are conditions subsequent and enforceable. Some courts, as we shall presently see, seek to and do engraft so-called exceptions on the rule which tend to weaken its effect and retard its enforcement. In 28 R. C. L. p. 315, it is said: ‘Considerable confusion and uncertainty appear in the cases as to the validity of a condition in a testamentary disposition providing for the forfeiture of devises or bequests in case the beneficiaries contest the will, but according to the weight of authority a condition of this character is not considered as opposed to public policy, but is recognized and enforced, both as to real and personal property, and even in the absence of a gift over, because the devisee, electing to take under the will, must take subject to the condition prohibiting a contest.’

The leading English case is Cooke v. Turner, 15 M. & W. 727. The validity of a similar clause was upheld, and, considering the question of public policy, it was said: ‘There is no duty on the part of an heir, whether of perfect or imperfect obligation, to contest his ancestor's sanity. It matters not to the state whether the land is enjoyed by the heir or devisee; and we conceive, therefore, that the law leaves the parties to make just what contracts and what arrangements they may think expedient, as to the raising or not raising of questions of law or fact among one another, the sole result of which is to give the enjoyment of property to one claimant rather than another. The question, whether this proviso is a proviso void as being contrary to the policy of the law, may be well tested by considering how the case would have stood, if, instead of a condition subsequent, it had been made, as in substance it might have been made, a condition precedent.’

The language of the Supreme Court of the United States in Smithsonian Institution v. Meech, 169 U.S. 398, 18 S. Ct. 396, 42 L. Ed. 793, is clear, forceful, and convincing. After quoting from Beall v. Schley, 2 Gill (Md.) 181, 41 Am. Dec. 415, and speaking through Mr. Justice Brewer, it was said: ‘The propositions thus laid down fully commend themselves to our approval. They are good law and good morals. Experience has shown that often, after the death of a testator, unexpected difficulties arise, technical rules of law are found to have been trespassed upon; contests are commenced wherein not infrequently are brought to light matters of private life that ought never to be made public, and in respect to which the voice of the testator cannot be heard either in explanation or denial; and, as a result, the manifest intention of the testator is thwarted. It is not strange, in view of this, that testators have desired to secure compliance with their dispositions of property, and have sought to incorporate provisions which should operate most powerfully to accomplish that result. And, when a testator declares in his will that his several bequests are made upon the condition that the legatees acquiesce in the provisions of his will, the courts wisely hold that no legatee shall without compliance with that condition receive his bounty, or be put in a position to use it in the effort to thwart his expressed purposes.’

We shall quote at length from but one other decision which sustains the full enforcement of the rule, one from the Supreme Court of Iowa, Moran v. Moran, 144 Iowa, 451, 123 N. W. 202,30 L. R. A. (N. S.) 898. In that case it was said: ‘Without taking time to cite the cases, it may be said that some courts incline to the view that such conditions are valid only in cases where the testator names some third person to receive the legacy in the event of a breach of the condition by the legatee first named. Others sustain all such conditions attached to devises of real estate, but hold there must be a gift over upon its breach in order to make valid a condition of the same kind attached to a bequest of personalty. A few courts have held the condition inoperative where the beneficiary has probable cause for the contest of the will, while still others reject all these distinctions as arbitrary, and hold the condition valid and enforceable in all cases, whether the gift be of realty or personalty, and without regard to the cause or ground of contest. The latter view appears to be the one now generally held, and to our minds is most in consonance with reason and sound principle. * * * For...