Strong v. Smith

• Decision Date: 27 February 1891
• Citation: 48 N.W. 183,84 Mich. 567
• Court: Michigan Supreme Court
• Parties: STRONG v. SMITH et al.

48 N.W. 183

84 Mich. 567

STRONG v. SMITH et al.

Supreme Court of Michigan

February 27, 1891

Appeal from circuit court, Wayne county, in chancery; GEORGE S HOSMER, Judge.

Palmer & Palmer, for appellant.

Stewart & Galloway, for appellees, except Edith Strong.

MCGRATH J.

On March 5, 1859, Justus B. Smith executed his last will, giving all his real estate to Huldah Smith, his wife, for her sole benefit and use during her natural life-time, and after her decease, in equal shares, to "my own brothers and sisters and to the brothers and sisters of my said wife." Justus B. Smith died Febraury 1, 1884, and Huldah Smith died January, 1890. At the time of the making of said will there were living John Smith, Jacob Smith, James M Smith, Victory M. Smith, and David K. Smith, brothers, and Lucy A. Bruce and Mary Bentley, sisters, of testator, and George P. Coan, a brother, and Rebecca Smith, Roxanna Perry Maranda M. Brighton, and Edith A. Strong, sisters, of Huldah Smith, wife of the testator. After the making of said will and before the death of the testator, Lucy A. Bruce and Mary Bentley, sisters, and Jacob B. Smith, a brother, of the testator, died, each leaving issue. The legal heirs of Lucy A. Bruce, Mary Bentley, and Jacob B. Smith convey their interests to the complainant, who files a bill asking for partition, claiming title to an undivided one-fourth share of the real estate of which Justus B. Smith died seised, remaining after the death of Huldah Smith, and the payment of debts. The answer concedes the facts set up, but denies any title in complainant, and asks for a construction of the will. By stipulation it is agreed that (1) if the issue of Lucy A. Bruce, deceased, Mary Bentley, deceased, and Jacob Smith, deceased, living at the time of the death of Justus B. Smith, took the respective shares of the estate of said Justus B. Smith, deceased, by his said will, in the same manner as their respective parents would have taken had they survived their said testator, as set forth in complainant's bill, then the complainant is entitled to partition as the grantee of said issue. (2) If the said issue of said deceased sisters and brother did not take the respective shares of the estate of said Justus B. Smith, deceased, by his will, in the same manner as their respective parents would have taken had they survived the said testator, then said bill of complaint should be dismissed. The circuit judge dismissed the bill of complaint, finding as a matter of law that "the will must be construed from the death of the testator, and that the devise, being to a class part of whom are relations, and part of whom are not, must be construed as intending the class as it existed at the said testator's death, and for that reason brothers and sisters, who died prior to the decease of the testator, were not devisees or legatees, and the children through whom said complainant claims had no interest in the estate of said Justus B. Smith, and their deeds to complainant conveyed nothing." We think the court erred in this conclusion. Section 5812 of our statutes is as follows: "When a devise or legacy shall be made to any child or other relative of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator, unless a different disposition shall be made or directed by the will." This section has come down to us from the Revision of 1837. Hence it antedates the instrument in question over 22 years, and the will must be construed in its presence. Similar statutory provisions have been enacted in nearly every state in the Union, and in most of them the precise question here has been raised and passed upon. Woerner, in his recent work on the "American Law of Administration," after calling attention to these statutory provisions, says: "The effect of these statutes is to vest in the lineal descendants of the deceased legatee or devisee the interest which the latter would have been entitled to if in esse when the will took effect. But as, in all cases of testamentary disposition, the testator's intention controls mere rules of construction, so these statutes will not be allowed to divest the gift contrary to the ascertained intention of the testator. Hence, if it appears that the testator intended no legatee to take unless he survived him, the legacy to one dying before the testator must lapse, although the legatee leave issue living." 2 Woerner, Adm'n, 939. In Stockbridge v. Stockbridge, (Mass.) 14 N.E. 928, the testator disposed of a portion of the residue of his estate as follows: "One of said five parts I direct my executors to divide equally among the children of Chester Stockbridge." David, a son of Chester, and a nephew of the testator, died before the testator, leaving issue. Held, that by virtue of the statute, which is the same as ours, the issue of David, who survived the testator, were entitled to take what David would have taken had he survived the testator. The court say: "The circumstance that the gift to him was only one of a class, does not prevent the operation of this statute." In Moses v. Allen, 81 Me. 269, 17 A. 66, the will contained this clause: "All the rest and residue of my estate, real, personal, and mixed, I give, devise, and bequeath to my nephews and nieces, 'in equal portions."' The court say: "The question is whether the surviving children of the deceased nephews and nieces who died prior to the death of the testator take the respective shares of their deceased parents. We think they do. It was decided in Nutter v. Vickery, 64 Me. 490, that upon reason, principle, and authority the lineal descendants of a relative of the testator having a bequest in the will are entitled to the legacy given to their ancestor, though the original legatee was dead at the date of the will; that such may fairly be presumed to have been the intention of the testator; and that our statute, which has been in force for nearly a century, was intended to secure this result. The only difference between that case and this is that in that case the relatives were referred to by name, while in this they are described by their relationship to the...