Barbo v. Jeru

Ostrander, J. {after stating the facts). All parties agree that the will should be construed so as to prevent partial intestacy; that Nicholas Jeru supposed, when he made his will, that the buildings were located on the northeast quarter of the southwest quarter of section 23, and that he intended to devise all of his property. It is contended, however, on the part of defendants, that in legal effect the will severed the buildings from the land, that the devises of real estate are in severalty, and that in the buildings alone is there an undivided interest created. This contention would seem to support the ruling that Frank Jeru had no homestead interest in the property. It is impossible to read the will, in the light of the testator’s surroundings, without bein£ impressed that he intended that the buildings should'be a home for his daughter, and that the other devisees should have in the buildings such an interest as would permit them, also, to make a home there as was necessary or convenient for themselves and for their children. The change made in the terms of the first will, the care manifested in his devise to Frank and to Joseph of an acre of land each, “near the aforesaid buildings,” the 2 acres so devised being taken from the equal one-third of 40 acres which would otherwise have been given to his daughter, and the bequest of an undivided one-third interest in the buildings to each, is evidence of this intention. It is incredible that he in [360] tended there should be a division of the buildings, or of the value of them, among the three devisees. Whatever the legal effect of what he did may be, the intention that common use should be made of the buildings seems to me to be clearly established by the will itself, in the light of surrounding circumstances. We are furnished with but one dimension of that part of lot 4 owned by the testator. Perhaps it is not material to know the other dimension, so long as we know that the buildings were located upon it. The intention of the testator cannot well be given effect unless we treat the land upon which the buildings stand as belonging to Agnes. The intention that Agnes should have the ownership and control of the land upon which the buildings are located is clear. As between herself and the other devisees, it should be treated as the controlling thing. The intention is not carried out by a construction of the will which gives to the devisees an undivided interest in the land upon which the buildings are situated. Complainant’s rights, acquired by her levy, affect proper construction of the instrument not at all. We construe the will as though the strip of lot 4 upon which the buildings are located was a part of the north one-third of the 40 acres. We enlarge the holding of Agnes by the extent of the strip, give to the other devisees an acre each “near the aforesaid buildings,” and leave the other provisions of the will to stand. It is clear that the judgment debtor had no homestead interest in the south 13£ acres of the 40 acres. For the purposes of a construction of the will, the land on lot 4 may be added to the land on the northeast quarter of the southwest quarter. But there is no connection, in fact or in law, between the interest of Frank Jeru in the south 134 acres of the 40 acres and his interest in the buildings and land on lot 4. Whether, his home in fact being with his sister, the interest acquired by him in the buildings and in 1 acre of land near them may be made the foundation for a claim of homestead, is, therefore, one of the questions presented. A homestead right is an interest in land. Michigan Mut. [361] Life Ins. Co. v. Cronk, 93 Mich. 49. He can have no homestead interest in the land owned in severalty by his sister. So that, notwithstanding the evident intention of the testator, what he did will not support the right of the judgment debtor to a homestead in any part of the land. We agree with the learned trial judge in holding the deed from Frank Jeru to his sister to be void as to the complainant. The decree of the court below will be modified so as to make it correspond with this opinion. Except as indicated, it is affirmed, but without costs to either party. Grant, Hooker, Moore,' and McAlvay, JJ., concurred.