Bliss v. Livingston Probate Judge

Montgomery, J. Relator is the widow of Horace Bliss, deceased, whose estate is being administered by the probate court of Livingston county. She applied to the probate court for an order fixing an allowance under section 8940, 3 Comp. Laws. The probate judge. decided that she was entitled to no allowance. Thereupon application was made to the circuit court of Livingston county for a mandamus requiring the probate judge to fix a rea [272] sonable allowance to relator. Such an order was made, and is now before us for review by certiorari. The probate judge was of the opinion that relator had barred herself of the right to ask for an allowance by a postnuptial agreement, which, in consideration of a conveyance of certain land by her husband to her and of naming her as the beneficiary in a life-insurance policy, relator acknowledged that she accepted the above-named conveyance and agreement— “ In full satisfaction and discharge of all my dower rights or interests in the lands and property of the said Horace Bliss, that he now owns as well as all that he may accumulate or acquire, intending to bar myself of all rights and interests in any and all the property of the said Horace Bliss to which I might become entitled by reason of being the wife of the said Horace Bliss, except the right of support and maintenance out of said property during the lifetime of the said Horace Bliss.” And the question for determination is whether this agreement should be construed to bar the right to support during the settlement of the estate. The statute was before the court for consideration in Pulling v. Wayne Probate Judge, 85 Mich. 34. In that case by an antenuptial agreement it was agreed by the relator that in consideration of a payment made and love and affection she, the second party,— “ Hereby agrees to release, and does release, all claim which, upon the death of the first party, she as his widow may have in his estate, whether in right of dower or as her distributive share in the personalty or otherwise, under the laws of this State.” It was said of this provision.: “The agreement here was intended to bar relator’s ‘ right of dower, and all of her right to share in the estate,’ and cannot be extended to include statutory ‘ allowances pertaining to administration.’ The claims referred to are those which she, as widow, would be entitled to make at the time of the distribution of the estate.” We are of the opinion that the language of the agree [273] ment in question in this case is no broader to exclude the right of the widow to sustenance during the settlement of the estate than was that in Pulling’s Case. The reference is to the interests which relator as wife of Horace Bliss should have in his property. This just as clearly means the rights which she would take as distributee as did the clause in the agreement in Pulling’s Case. They relate to her right which she as widow might have, whether the right of dower or her distributive share in the personalty or otherwise. The point is made that the exception of the right of support and maintenance out of the property of Horace Bliss during his lifetime should be held to exclude the right to support and maintenance after his death. This contention has some plausibility, but, as the preceding language indicates that the purpose was to bar relator from special rights and interests in property which would come to relator upon distribution of the estate, we think this exception must be held to have been inserted out of abundant caution to exclude any possible claim that from the date of the contract responsibility for relator’s support during the lifetime of Horace Bliss was assumed by herself. It is quite as clear that this instrument does not relate to statutory allowances pertaining to administration as that the instrument construed in Pulling’s Case did not. The order of the circuit judge is affirmed. McAlvay, C. J.,' and Ostrander, Hooker, and Moore, JJ., concurred.