Mullreed v. Clark

Long, C. J. The bill in this case was filed to construe the will of Thomas Phillips, deceased, which reads as follows: “I, Thomas Phillips, of the town of Van Burén, county of Wayne, and State of Michigan, being of sound mind and memory, and considering the uncertainty of this transitory life, make and publish this my last will and testament. That is to say, after my debts are paid out of my personal estate, after that I will and bequeath unto my beloved wife all my real and personal estate, during her life. After her death, the real estate I bequeath to my son James Phillips, providing, always1, that he pays to my two daughters Mary Phillips and Jane Phillips the sum of one thousand dollars each, to be paid within three months after my death; and, if James Phillips should die without heirs, then my real and personal estate is to go to my two daughters Mary Phillips and Jane Phillips; but, if Mary or Jane should die without heirs, then their share to go to the other sister; and the personal estate and moneys left after my wife’s death, if she outlives me, to be equally divided between my son James and my two daughters. Mary and Jane.” The only question which we need consider is, who took the fee to the real estate of Thomas Phillips, under his said will? The court below construed this will to give the fee to James Phillips, and found that the words, “if James Phillips should die without heirs,” etc., referred to and meant the death of said James Phillips, without heirs, during the lifetime of said testator. Of this construction appellant complains, claiming that the words quoted mean death at any time, without children, it having been conceded in this case that by the word “heirs” the testator meant “children.” At the date of the execution of this will, the testator’s wife and six children were living. . One daughter, Mar [231] garet Bonner, had previously died, leaving nine children. The wife died prior to the death of the testator. The son James Phillips died after the death of the testator, and without issue, and all of the other children, except John Phillips, have since died. All the children died without issue, except Elizabeth Clark and Margaret Bonner, and their children and John Phillips are the sole heirs at law of the testator. The will was duly admitted to probate, and the legacies were paid by James Phillips to Mary and Jane. The learned court below was in error in the construction he placed upon the paragraph of the will under 'consideration. The statute provides: . “When a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words ‘ heirs ’ or ‘ issue ’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” 2 How. Stat. § 5538. This statute was adopted from New York, and, before its enactment here, had received a construction by the New York courts. In Sherman v. Sherman, 3 Barb. 385, the will under consideration gave certain lands in fee to a son of the testator, and then provided that, if the devisee should die without child or children, then the lands should go to the testator’s grandchildren. The court held that upon the death of the testator the devisee took a fee, defeasible under the executory devise over, and upon his dying without issue the grandchildren took. The court in that case cited the statute of which section 5538, 2 How. Stat., is a copy. The statute has been given a like construction by this court. Goodell v. Hibbard, 32 Mich. 47. “The person named as ancestor” means the person named by the testator as the ancestor; in the present case, James Phillips. James therefore took the fee, defeasible at his death without issue living at that time. At his death the fee, by the terms of the will, was cast upon the sisters Mary and Jane. They having died without issue, “ the other sister ” named in [232] the will was Elizabeth Clark, who was the only sister of Mary and Jane living at the time the will was made, and she consequently took the fee. The decree of the court below must be reversed, and a decree entered here in accordance with these views. Defendant Clark will recover his costs of both courts from the estate. The other Justices concurred.