Toms v. Williams
| Citation | 2 N.W. 814,41 Mich. 552 |
| Parties | ROBERT P. TOMS, Executor, etc., Complainant v. FERDINAND WILLIAMS and others, Defendants. |
| Decision Date | 14 October 1879 |
| Court | Supreme Court of Michigan |
ROBERT P. TOMS, Executor, etc., Complainant
v.
FERDINAND WILLIAMS and others, Defendants.
Supreme Court of Michigan.
Filed October 14, 1879.
Where a specific devisee described the property, as two stores erected by the testatrix at, (giving the location,) held, that it included the land appurtenant to such stores.
Certain real estate, belonging to a testatrix, was subject to a lease for forty years, with covenants of lessee to improve, and the privilege of the lessort o pay the appraised value of and retain the improvements at the end of such term, and on failure so to do, a right of renewal by the lessee for forty years more. In her will she devised all her property, with the exception of certain specific devises, to her executors and trustees, to receive the rents, income and profits, and after paying taxes, insurance, making repairs, etc., to set aside $5,000 per year until the expiration of said lease, to be invested in bonds or mortgages, to constitute a sinking fund for the payment for such improvements, the remainder of the net income of such estate to be divided among the children of a brother, or survivors of them, share and share alike, when the youngest should become of age, and thereafter the net accumulations to be distributed annually among such children, or the survivors of them, share and share alike, until the expiration of said lease and purchase of said improvement, when the whole property should be conveyed to them in the same manner. Held, that a present interest in the realty was vested in the children named, subject to the trust imposed for raising the fund for the purchase of the buildings, and that such trust was a valid one. Costs cannot be allowed in any case except as authorized by statute.
G.V.N. Lothrop, for complainant.
Theo. Romeyn, Griffin & Dickinson, Prentiss & Chipman, Levi Bishop, and Van Dyke & Brownson, for defendants.
CAMPBELL, C.J.
Complainant filed his bill to obtain the construction of a will and settle conflicting claims under it. A decree was made below, from which complainant appeals, and from which, also, appeals were taken by all the defendants but J.C. Devereux Williams, and John R., Gershorn Mott, and Mary Josepha Williams.
The chief disputes are concerning the effect and validity of certain provisions which are claimed by the appealing defendants to be in violation of the policy of the statute against perpetuities. To understand these provisions reference is necessary to the circumstances out of which the controversy arises.
The testatrix, Mary W. McKinstry, made her will on the sixteenth day of March, 1874, and died on the second of March, 1876, being a widow without descendants. Her next
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of kin were four surviving brothers-Ferdinand, John C., James M., and J.C. Devereux Williams-and the children of three deceased brothers-Theodore, Mott and Thomas-all of whom are made defendants. Of these John R., Gershorn Mott, and Mary Josepha Williams are the children of General Thomas Williams, a brother of testatrix, who died some time before she made her will. A considerable part of the property of testatrix was devised and bequeathed to her by a former husband, David Smart, who died about twenty years before testatrix. Among his property left to her was a business block in the city of Detroit, commonly known as the Merrill Hall property, built up under a lease granted in April, 1854, for forty years from May 1, 1854, to one Charles Waterman, by David Smart and testatrix, his wife, which required the lessee to improve in a manner therein pointed out, and keep up the improvements, and pay all taxes and assessments, and an annual rent of $8,000. Among other provisions in this lease, which was subject to forfeiture and re-entry upon default of certain conditions, was a clause which required the lessee, his heirs or assigns, at the expiration of the term in 1894, to pay the appraised value of the improvements, or grant a second term of forty years, on a rent of five per cent. of the value of the land without the buildings.
No provision was made by the will whereby any relations were made beneficiaries except J.C. Devereux Williams and the three children of Gen. Thomas Williams. All of these children were minors when the will was made. John R. Williams became of age February 15, 1876, Gershorn Mott Williams February 11, 1878, and Mary Josepha Williams is still under age, and will not reach majority uutil August 24, 1881.
Robert P. Toms and Walter Ingersoll were named in the will as executors and trustees, but Mr. Ingersoll renounced and declined to accept the appointment. The will was duly admitted to probate, and therefore no question can arise concerning anything but its interpretation and the legal consequences of it. We have no authority to inquire into the propriety of any disposition which the testatrix saw fit to make, but are bound to carry out her expressed wishes as far as they are not unlawful.
A single devise was made of certain specified property to J.C. Devereux Williams for life, with remainder to the other three devisees before named. The only question raised concerning this is as to the amount of property it covers. It is not insisted that the devise itself is imperfect, or that any of the
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appealing parties have interests in anything actually covered by it.
The property is thus described: “The two stores recently erected by me on the northerly side of Michigan Grand Avenue, in the city of Detroit.” Counsel for a part of the appellants insisted this devise only covered the buildings, and did not convey the land on which they stand. This assumes what is not disputed, that the testatrix had an estate in the land. If not, the controversy would be useless.
The argument on which this claim is based was ingenious, but does not seem to have legal support. The point urged that the court should be astute to defeat unjust provisions, is not one to which we can give attention. If a will is legally executed, and violates no rule of law, all courts must respect the expressed design of the testatrix, and must accept her action as based on such reason as satisfied her. The view which other persons may take of what they may think she ought to have done, can have no bearing on the construction of what she actually saw fit to do.
These stores are attached to the freehold, and form a part of the realty. Their value and their availability depend on their location, and are identified with the entire property. There can be no presumption that permanent buildings, when devised, were not intended to be so granted as to be capable of enjoyment as buildings, which could not be the case if no right in the soil passed with them. It has always been competent, under the rules of the common law, to pass really under the name of houses, granges, mills, or other buildings connected with the freehold, and making its chief available value. Co. Litt. 4, 5. We do not think the claim made is tenable, and we have no doubt the devise to J.C. Devereux Williams, covered the land appurtenant to the stores. The remaining provisions of the will belong together, and the interests of the defendants, and each of them, in all but the store property, depend on the effect to be given to these arrangements.
The testimony shows that there is a considerable amount of personalty, appraised at $71,787.88, and real property valued at about half a million of dollars. The value of the buildings on the Waterman property, now known as the Merrill Hall block, is estimated at $60,000 to $65,000. The law required the buildings originally to cost not less than $50,000. There was no maximum fixed. Insurance is required to be kept up to the amount of $32,000.
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The third, fourth, fifth, sixth and seventh clauses under which the controversy arises are as follows:
“Third. I give, devise and bequeath all the residue of my estate, real and personal, to my executors hereinafter named, or the survivors of them in trust.
“Fourth. I direct my executors and trustees, or the survivors of them, to receive the rents, profits, and interest and income of my estate hereby devised to them in trust, and to pay all taxes, assessments and insurance on the same, and to make all necessary repairs to the buildings, and improvements to or on...
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