Hay v. Hay

Citation26 N.W.2d 908,317 Mich. 370
Decision Date08 April 1947
Docket NumberNo. 79.,79.
PartiesHAY et al. v. HAY et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE Appeal from Circuit Court, Saginaw County, in Chancery; James E. O'Neill, Judge.

Suit by Jane Burt Hay and others against Wellington Burt Hay and others and Jane L. Burt and others for a judicial construction of the will of Wellington R. Burt, deceased. From a decree dismissing the bill of complaint, the plaintiffs appeal, and Wellington Burt Hay and others cross-appeal.

Decree affirmed.

REID and BUSHNELL, JJ., dissenting.

Before the Entire Bench, except DETHMERS, J.

Waldo C. Granse, of Detroit, for Wellington Burt Hay, Wellington Burt Hay, Jr., and Nicholas R. Hay.

Franklin D. Hepburn, of Detroit, for Nora Hutchins del Strother.

Sempliner, Dewey, Stanton & Honigman, of Detroit, for Arthur W. Sempliner, guardian ad litem.

Thomas G. Long, of Detroit, William C. O'Keefe, of Saginaw, and Gilbert A. Currie, of Midland, for trustees, defendants and appellees.

Robert S. Beach, of Saginaw, for appellee Beach.

Miller, Canfield, Paddock & Stone, and Edward S. Reid, Jr., all of Detroit, and Herbert J. Dwan, of Saginaw, for Jane Burt Hay and others.

NORTH, Justice.

In this case, which was submitted to this court some months ago but in which additional briefs requested by the court have been but recently filed, a question of primary importance is presented by appellants in the following words: ‘Should the will be construed to grant plaintiffs and appellants a vested remainder?’ Mr. Justice REID'S opinion answers this question in the affirmative. I am unable to agree in that result.

At the outset it should be noted that because of a proposed adjustment acceptable to the persons who are annuitants under the Burt will, their rights will not be affected by decision herein. In general the factual background of this litigation is sufficiently presented in my Brother's opinion, but his quotation from the will seems inadequate. Since the construction to be given to the Burt will must be controlled by the testator's intent, if within legal limitation, as gathered from the four corners of the will, other provisions of the will than those noted by my Brother must be quoted. For that reason we quote the following:

(2) I hereby appoint the Second National Bank of Saginaw, Michigan, as Trustee and Executor to manage my estate after my death, as herein provided * * *.

(3) Said Bank or Trust Company is to take charge of all my estate, real, personal and mixed, of which I may die possessed, as hereinafter provided. To manage and conduct said Trust, created by this will, with full power, except as hereinafter limited; to sell, convey and lease any of the same and invest and reinvest the proceeds of any sale, as hereinafter provided, until the termination of the Trust herein created.

(4) First, the Trustee and Executor shall pay all my funeral expenses and all my legal debts.’

Here follows provisions for a large number of annuities requiring payment by the executor or trustee of upwards of $90,000 each year. As to such annuities the will provides:

(14) * * * but shall the income for any year not be sufficient to make all the payments herein provided, then in that event, a sum sufficient shall be taken from the principal of the estate so that all payments herein provided may be made in full. * * *

(16) * * * All annuities and all payments provided for in this will are limited and conditioned to continue only during the period of the Trust created by this will. At the expiration of the Trust, as hereinafter provided, all annuities and payments shall cease. * * *

(17) In making the foregoing bequests it is my intention that the amounts herein provided to be paid, shall be paid directly and only to the beneficiaries herein named, or their proper guardian, and that no legal title is passed to them that shall be subject to garnishee or attachment by creditors, or that they can make any transfer of, either by order or assignment, or any other document, which could be binding upon or accepted by the Trustee and Executor. * * *

(18) All funds arising from income from securities belonging to the estate, or from the payment of securities themselves as they may be paid or as they may become due, or from the proceeds of the sale, of anything belonging to the estate, or from royalties from iron mines, or from any other source, after making all the payments herein provided, the surplus funds remaining on hand shall be invested every Thirty days, as nearly as may be, by the Trustee and Executor, in United States Government bonds, State Bonds or bonds (having other specified requirements) * * *.

(19) The iron mines, iron mining stocks or interests in iron mines located in the State of Minnesota, of which I may die possessed, shall not be sold or in any way encumbered by the Trustee and Executor. All the iron mine leases in Minnesota shall continue as now leased. All other real estate shall be disposed of from time to time as the opportunity occurs, at the best prices obtainable, and the proceeds of such sales shall be invested in the manner hereinbefore provided for surplus funds.

(20) The Trust herein created shall continue for and during the period of the lives of my two grandsons, Wellington Burt Hay and Wellington R. Burt. Upon the death of the last survivor of these two grandsons, all the real estate remaining in the Trust shall be distributed among my legal heirs, but all personal property shall continue in the Trust for Twenty-One years after the death of my last surviving grandchild that shall be living at the time of my death, and shall be subject to the terms and conditions hereinbefore set forth. At the end of Twenty-One years after the death of my last surviving grandchild that shall be living at the time of my death, the Trust shall terminate and all the funds of every name and nature remaining in the Trust shall be distributed to my legal heirs.

(21) As compensation for the carrying out of the provisions herein contained the Trustee and Executor is to have One-half of One per cent on all moneys received from the estate to cover all their services for receipts and disbursements (with a subsequent provision for a minimum annual fee of $3500). * * *

(22) The Trustee and Executor shall make a yearly report in detail to my son, George R. Burt, as to the condition of the estate.’

The remaining provision in the will is for a successor trustee who ‘shall carry out the Trust to its final termination, in accordance with the terms and conditions herein specified, application for such appointment being made by any one who may be interested as a beneficiary or final distributee.’

Surely no one could successfully contend, nor is it asserted by appellants (with whom we herein include cross-appellants), that the testator in the instant case did not create a testamentary trust; but appellants assert it was not a ‘true trust’ evidently meaning it was only a trust of powers granted to the trustee. In this particular appellants point out that there is not contained in the Burt will words by which the testator expressly passed title of his estate to the trustee. And for that reason, as stated in appellants' brief: ‘* * * it is plaintiffs' claim that remainder vested, at death of Testator, in his heirs and did not remain contingent upon survival at the respective times of distribution.’ And appellants, referring to testator's use in his will of the words ‘my legal heirs,’ contend that testator's legal heirs should be held to be those persons who were such heirs at the time of testator's death. Unquestionably such contention would be sound if Mr. Burt had died intestate; but such may or may not be the rule to be followed in the event a deceased person has disposed of his estate by will. In the latter case the terms of the will govern. We quote the following from an extensive note in 33 L.R.A.,N.S. p. 2:

‘It is a general rule of testamentary construction, so universally recognized as to render superfluous a full citation of the cases which support it, that in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described as testator's heirs * * * to whom a remainder or an executory interest is given by will, is to be ascertained at the death of the testator. * * *

‘The rule above stated, as is said in Heard v. Read, 169 Mass. 216, 47 N.E. 778, ‘is not a rule of substantive law, but a rule of interpretation, which has been adopted by the courts as one means of ascertaining the intention of testator as expressed in his will; and it never should be used to defeat what, from the whole will, appears with reasonable certainty to have been his intention.’

‘It is a rule of mere construction, which the court cannot apply if the context excludes it. Valentine v. Fitzsimons (1894) 1 I.R. 93.

‘The rules of construction that the word ‘heirs' in will is usually construed to mean those who are such at the time of the testator's decease, and that estates created by devise are to be held to be vested rather than contingent, must give way to the controlling rule of interpretation that the intent of the testator is to govern if it does not conflict with the rules of law.’

A headnote of Carr v. New England Anti-Vivisection Society, 234 Mass. 217, 125 N.E. 159, reads:

‘In the construction of a will, the general rule that, where there is a limitation over after a life estate (in the instant case after termination of the trust) to a class designated as the heirs at law of the testator, such heirs at law are to be determined as of the time of the testator's death, is not to be followed if it defeats the intention of the testator.’

Thus on the record in the instant case it must be determined whether by the terms of the testamentary trust the trustee took title in trust to the assets of the estate, and as bearing upon the determination...

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