Van Cleve v. Van Fossen

• Decision Date: 18 January 1889
• Citation: 73 Mich. 342,41 N.W. 258
• Court: Michigan Supreme Court
• Parties: VAN CLEVE ET AL. v. VAN FOSSEN ET AL.

41 N.W. 258

73 Mich. 342

VAN CLEVE ET AL. v. VAN FOSSEN ET AL.

Supreme Court of Michigan

January 18, 1889

Appeal from circuit court, Wayne county; CORNELIUS J. REILLY, Judge.

CHAMPLIN J.

In 1886, Abby Patchin died intestate, leaving personal property of the value of about $10,000, to be administered in the probate court for the county of Wayne. She left no issue, nor father nor mother, nor brother nor sister, living at the time of her death. In such case the statute relating to the distribution of personal property of intestates provides that "the residue of the personal estate shall be distributed in the same proportions, and to the same persons, and for the same purposes, as prescribed for the descent and disposition of real estate." Her sister, Eliza Van Fossen, who had died before her, had two daughters, who were living at the death of the intestate,-one named Abigail Van Fossen, and the other named Sarah Thompson. Ralph Van Fossen and Margarette Van Fossen were also children of said Eliza Van Fossen, both of whom were dead at the time of the death of the intestate but both of whom left a child or children surviving at the death of the intestate. John Van Fossen, Albert Van Fossen and Eugenie Van Cleve are children of Ralph Van Fossen, and Frances Young is a daughter of Margarette Van Fossen. Ralph Lester, deceased, was a brother of the intestate, who had a daughter, Caroline Lester, who is also deceased, but who left seven children surviving her at the time of the death of the intestate, whose names are as follows: Caroline R. A. M Mitkiewitz, Olga H. A. H. Mitkiewitz, Dimitrie I. S. G. Mitkiewitz, Fedora C. L. Mitkiewitz, Gabrielle L. B. A. Mitkiewitz, Constance E. E. O. Mitkiewitz, and Sergius F. M. R. Mitkiewitz. Lydia Putnam was a deceased sister of the intestate, who had a son, also deceased, but who left her surviving a son by the name of Edward Putnam, who was living at the time of the death of the intestate.

The probate court for the county of Wayne, by an order dated July 19, 1887, awarded all of the estate of the deceased to Abigail Van Fossen and Sarah Thompson, the nieces of the intestate. All of the appellants are grandnieces, and are one degree more remote than the appellees. They claim that the estate should descend to the children of the deceased brother and sisters by the right of representation, under subdivision 3, � 1, act No. 169, Sess. Laws 1883, which reads as follows " Third. If he shall leave no issue, nor widow, nor father, one-half of his estate shall descend to his mother, and the remainder in equal shares to his brothers and sisters, and to the children of any deceased brother or sister by right of representation." On the other hand, the appellees claim that the case is governed by the fifth subdivision of the section, which reads as follows: " Fifth. If the intestate shall have no issue nor widow, and no father, mother, brother, nor sister, his estate shall descend to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degrees, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor...