Scholten v. Scholten

• Decision Date: 06 June 1927
• Docket Number: No. 95.,95.
• Citation: 238 Mich. 679,214 N.W. 320
• Parties: SCHOLTEN v. SCHOLTEN et al.
• Court: Michigan Supreme Court

238 Mich. 679

214 N.W. 320

SCHOLTEN

v.SCHOLTEN et al.

No. 95.

Supreme Court of Michigan.

June 6, 1927.

Appeal from Circuit Court, Kent County, in Chancery; William B. Brown, Judge.

Suit by Catherine Scholten, executrix of the estate of Ellen Scholten, deceased, against Jacob Scholten and others. Decree for plaintiff, and defendants appeal. Affirmed.

See, also, 233 Mich. 117, 206 N. W. 559.

Argued before SHARPE, C. J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.Jewell, Face & Messinger, of Grand Rapids, for appellants.

Linsey, Shivel & Phelps, of Grand Rapids, for appellee.

SHARPE, C. J.

The defendants Shoemaker executed a note secured by real estate mortgage on lands in Ottawa county to ‘Jacob J. Scholtens and Ellen Scholtens, his wife, by entireties,’ on February 14, 1917. On May 21, 1922, Jacob J. Scholten died testate. In his will he devised the use of all of his property to his wife as long as she remained unmarried, with remainder over to his children, and, in the event of her marriage, he directed that his property should be converted into cash, and that his widow should receive $1,500, and the balance should be divided equally among his children. He named his two sons Herman and Anthony as executors. On their petition the will was duly admitted to probate, notice of the hearing thereof having been waived by the widow and all the heirs. The inventory listed the security as, ‘1 mortgage, Liber No. 118, page 115, 1,600.00,’ and other personal property, amounting in all to $2,184. It also included the home farm, valued at $7,000. On December 21, 1922, the executors filed their final account. It showed undisposed of personalty amounting to $2,077.35. This included the mortgage in question. The petition for its allowance also paryed for the assignment of the residue. A waiver of the notice of hearing was signed by all the heirs except the widow. An order was made allowing the account, and another order assigning the residue ‘to and among the persons entitled thereto.’ Both of these orders were made on the day the account was filed. Both recited that due notice of the hearing had been given as directed by the court. The widow signed a receipt bearing the same date, reading as follows:

‘Received of Herman Scholtens and Anthony Scholtens eight hundred dollars ($800.00) from sale of personal property of Jacob Scholtens' estate.'

On the filing of this receipt, an order was entered discharging the executors, and soon thereafter a certificate of enrollment was attached to the papers on file in the office.

Ellen Scholten, the widow, died on May 19, 1924, leaving a last will and testament, executed two days before her death, in which she bequeathed to her daughter Catherine all the personal property of which she should die possessed, and named her as the executrix thereof. This will was duly admitted to probate. The plaintiff then made demand on her brother Herman, who had possession of the note and mortgage, for its delivery to her, and, on his refusal, filed the bill of complaint herein. In it she sets forth the execution of the mortgage, alleges that the title thereto passed to her mother by survivorship on the death of her father, and prays that Herman and his brother be enjoined from disposing of them, and that they be ordered to deliver them to her. The other heirs and the mortgagors were made parties. The heirs answered, denying that the widow took title as survivor, averring that the orders of the probate court allowing the final account and assigning the residue are res adjudicata of the rights of the widow and heirs in the note and mortgage, and also asserting that the widow during her lifetime was, and the plaintiff now is, estopped from making claim thereto. The trial court granted plaintiff the relief prayed for her in her bill. The defendants, who are heirs, appeal from the decree entered.

1. Survivorship.-In Lober v. Dorgan, 215 Mich. 62, 183 N. W. 942, it was held that the right of survivorship in personalty may be created by the express act of the parties. Both the note and mortgage in question were made payable to ‘Jacob J. Scholtens and Ellen Scholtens, his wife, by entireties.’ Such an estate may not be created in personal property. These words, however, are clearly indicative of an intent on the part of both to provide that the title should pass to the survivor. The note and mortgage were prepared by a man unfamiliar with the legal effect of the language used. It cannot be doubted that he intended to provide that the survivor should take, and that, in his effort to do so, he was but following the instructions of the husband and wife, for whom he was then acting.

In Thayer v. McGee, 20 Mich. 195, 207, Mr. Justice Christiancy, in holding that ‘courts are liberal in construing deeds so as to give them effect,’ quoted approvingly from Osman v. Sheaf, 3 Lev. 370, as follows:

‘For in these later times the judges have gone farther than formerly, and have had more consideration for the substance, to wit, the passing of the estate according to the intention of the parties, than the shadow, to wit, the manner of passing it.'

In Maclean v. Fitzsimons, 80 Mich. 336, 343, 45 N. W. 145, 146, it was said:

‘It is also true that what is plainly implied from the language used in a written instrument is as much a part thereof as if it was expressed therein.'

Some of the later cases, holding that the contract should be construed so as to effectuate the intent of the parties when it was made, are Whitman v. Whitman, 207 Mich. 337, 348, 174 N. W. 153;National Bldg. Supply Co. v. Spencer, 211 Mich. 228, 237, 178 N. W. 655;Hutchinson v. Hattendorf, 216 Mich. 638, 185 N. W. 667.

In our opinion, the title to the note and mortgage passed to the wife on the death of her husband.

2. Res Adjudicata.-The note and mortgage in question were listed in the inventory of the estate and thereafter treated as a part thereof. In Thompson v. Thompson, 229 Mich. 526, 201 N. W. 533, it was said:

‘When the order was made admitting the will to probate, the entire estate, whether disposed of by the will or not, became subject to the administration proceedings provided for in the statute.'

And it was held that the order assigning the residue, even if not made ‘in accordance with the correct construction of the will or of applicable statutes,’ was ‘binding and conclusive on all persons interested, if the notice of hearing required by the statute has been given.’ The effect of the decision in that case, and in Chapin v. Chapin, 229 Mich. 515, 201 N. W. 530, both of which but followed the holding in other cases decided by this court, therein cited, was to emphasize the fact that a probate court is one of general jurisdiction in testamentary and other probate matters, and that its decisions, as evidenced by its orders made, are an expression of its judgment as to all matters properly included or necessarily involved in the administration of the estate, and are binding upon all parties whose interest in the estate, in effect, make them parties to the proceeding. As was said in the Chapin Case, such orders ‘have the force and effect of judgments in courts of record and are res adjudicata of the matters therein disposed of.'

Probate proceedings are statutory. The court, or judge thereof, has no power or authority except that conferred by the statute. Section 14116, 3 Comp. Laws 1915, provides:

‘Before the administration account of any executor or...