In re Shumway's Estate

Brooke, J. (after stating the facts). The statute governing inheritance of property in force when Nathan Shumway made his will and when he died (Act No. 200, Pub. Acts 1898) would have given one-half of his entire estate, both real and personal, to his widow, Marietta, and the other half to his surviving brothers and sisters and the children of those — 251 — who did not survive him, had he died intestate. The same essential bestowing language of inheritance, “shall descend,” is applied to both the widow’s half and the half inherited by blood relations. The common law touching descent of estates has never obtained in Michigan. The statute of descent is and always has been the only existing law on that subject in this State (Keeler v. Dawson, 73 Mich. 600 [41 N. W. 700]), and no one inherits property or becomes a legal heir except as it provides. In Turner v. Burr, 141 Mich. 106 (104 N. W. 379), holding that a husband was heir of his wife, who directed in her will that a certain portion of her estate “be distributed among my lawful heirs according to law,” this court said: “In English law the word ‘heirs’ has always meant the person succeeding to the title to real estate on the death of another — one who succeeds to the title by force of the law. A common definition is: ‘He upon whom the law casts an estate of inheritance immediately on the death of the owner.’ ” In Rood on Wills, § 450, the applicable rule is stated as follows: “But where the statutes make any part of the intestate lands descend to the surviving spouse, such spouse is thereby made heir, and in such cases and proportion entitled under a gift by will to the heirs of the other.” And the rule is again recognized as the settled law of this State in the late case of Menard v. Campbell, 180 Mich. 583 (147 N. W. 556, Am. & Eng. Ann. Cas. 1916A, 802). With the at least presumptive knowledge that his wife was his legal heir and would inherit half of the real estate of which he died seised if she survived him, testator gave her the use of the whole of it during her natural life, and then added: — 252 — “After her decease, I give, devise and bequeath all of said real estate to my legal heirs, to be divided between them according to the provisions of the statute.” According to the provisions of the statute, his wife was included in his “legal heirs.” His creation of an intervening life estate, even to her, did not negative her status in that particular. “There is nothing inconsistent or repugnant in a devise of a life estate with remainder to the life tenant, and such a remainder may be a vested one, and the fact that it can never come into the actual possession of the remainderman should not prevent its being so construed.” 40 Cyc. p. 1668. “The fact that the devisee of the particular estate is one of several persons who at the death of the testator answer the description of heirs or next of kin does not prevent the application of the rule. He would take' jointly with the others a vested remainder.” 24 Am. & Eng. Enc. Law (2d Ed.), p. 394. The fact that a life tenant can never come into the remainder does not change the time when title to the remainder vests. Cushman v. Arnold, 185 Mass. 165 (70 N. E. 43). In case of a devise for life with remainder over to testator’s heirs, which includes the life tenant, the fact that testator knew the life tenant would be dead when the time for division, possession, and enjoyment of the remainder arrived, would not justify the court in changing the terms of the will, and each of the devisees seised of a vested remainder might devise, convey, or otherwise dispose of his or her interest, unless restricted by the plain terms of the will. Robinson v. Mitchell, 99 Md. 50 (57 Atl. 625). The above principles are well sustained in Bullock v. Downes, 9 H. L. Cas. 1, and Archer v. Jacobs, 125 Iowa, 467 (101 N. W. 195). The latter is a carefully considered opinion, instructively treating and citing numerous authorities upon the various contentions there arising in a complicated will case, where the — 253 — court had occasion to deal with certain questions well in point here. Among these questions was the significance of similar deferring words as those used here, claimed to affect the time when title to the remainder vested. There the testator had directed in his will that the estate should go to his grandchildren or their issue “upon the death” of his daughter, while here the testator directed that his estate, or a certain portion of it, should go to his legal heirs “after her (his wife’s) decease.” In considering the contention that the language used in that case indicated an intention on the part of the testator .that the remainder should not vest until the termination of the life estate, the court said: “We think this construction cannot prevail. The will gives evidence of having been prepared by a person of experience, and the testator himself must have been a man of intelligence and business sagacity. Had it been his purpose to suspend the vesting of-the remainder until his daughter’s death, it is very probable he would have said so in unequivocal terms, and not have left it be arrived at as a matter of inference. Words like those under consideration and others of similar import are of common use in wills, and, save in a few exceptional cases, the courts have uniformly held them to refer to the time when the remainderman shall come into the enjoyment of the estate, and not to the time when his interest vests. Such is the interpretation where the gift of the remainder follows the words ‘upon the death,’ or ‘after the death,’ or ‘at the death’ of the life tenant, or other equivalent forms of expression. In Kinkead v. Ryan, 64 N. J. Eq. 454 (53 Atl. 1053), the words creating the remainder are (having first provided a life estate for the wife): “ ‘After the death of my said wife I give, devise and bequeath all my estate unto my beloved children [naming them], and any other child of mine that may be born hereafter share and share alike and to their heirs and assigns forever.’ * * * “These words were held insufficient to postpone the vesting of the remainder in the children in esse. In Beatty’s Adm’r v. Montgomery’s Ex’x, 21 N. J. Eq. 324, the same construction was given to the words — 254 — ‘from and after the death of my wife I give and bequeath/ etc.; and it was held that, although each of the remaindermen died, before the determination of the life tenancy, the remainder was vested in them, and passed to their representatives” — citing many other authorities. This court has. more than once held that the policy of our statute is in favor of vested rather than contingent or postponed estates, and only plain, unambiguous language by the testator will prevent application of that rule in construing a will. Rood v. Hovey, 50 Mich. 395 (15 N. W. 525); Hibler v. Hibler, 104 Mich. 279 (62 N. W. 361); Clark v. Mack, 161 Mich. 545 (126 N. W. 632); Van Gallow v. Brandt, 168 Mich. 649 (134 N. W. 1018); Menard v. Campbell, supra; Ensign v. Dunn, 181 Mich. 456 (148 N. W. 343). We find no confusing provisions, in the first paragraph of testator’s will to which well-seasoned rules of construction are inapplicable. His wife, to whom he gave a life estate in the realty, was one of his. several legal heirs amongst whom he directed division of the remainder in fee “according to the provisions, of the statute.” The will spoke at and took effect from the time of his death, at which time, under the statute to which he made reference, the legal heirs were to be determined and title to their interests vested in them, unless undoubtful language in the will plainly provided otherwise. The only words of futurity found are of a kind presumed to relate particularly to the time of enjoyment of the remainder, rather than when the estates shall vest, and are to be so construed. The fact that by the will the widow took both a life estate in the whole and a fee to the half was not an inconsistent or repugnant provision, but simply operated to merge, her two estates as to the one-half, investing her with an absolute title in fee to that portion. It, however, is strenuously urged that the intent of — 255 — the testator as expressed in the will, , taken as a whole, plainly indicated otherwise, and under the cardinal rule of construction the manifest intent of the testator should govern. Of this rule of construction there can be no question, but the intent must be tangibly expressed somewhere in the instrument in such language as plainly conveys the thought beyond mere surmise, conjecture, or supposition, and makes evident that Nathan Shumway intended that his wife should be disinherited as to the half of the real estate which the law gave her, and his distinct .direction that his real estate, subject to the life estate, be divided amongst his legal heirs (of whom she was one) according to the provisions of the statute should be ignored. We discover nothing in any language of the will which indicates ignorance of the law upon this subject of descent of property or an intent that the general and applicable rules of construction should be disregarded in interpreting the instrument. Legal terms in the will are appropriately used. Its general tenor indicates that testator was a man of intelligence and independent thought, who had given the subject more than ordinary consideration and familiarized himself with the provisions of the statute to which he makes reference, one portion of which did not impress him favorably and in his opinion ought to be amended. In fact, it is not an unreasonable inference that he drew this will with the statute before him or in mind. He made reference to it more than once, and followed its sequences in dealing with beneficiaries, first, as does the statute, making provision for the wife, who manifestly was nearest to him, and naturally the first object of his solicitude. He gave her, unless appellant’s construction prevails, just what the statute gave her, with the added use and possession of the real estate which they had possessed and enjoyed together, with absolute ownership of their household effects and — 256 — the familiar chattels of the home, of which she otherwise would own but the half, with the suggestion that, if she chose to give some of the articles to his friends as keepsakes, it would be agreeable to him. That it was his first and constant care to gratify, amply provide, and smooth the way for her after he was gone, runs through the scheme of his will from beginning to end; first providing that she should have the undisturbed use and enjoyment of the real estate while she lived, without further mention of individuals, he in general terms directs that otherwise it shall go as the statute of descent provides. Lastly, he declares that he has full confidence in her, designates her as his executrix, and, apparently knowing that the law would compel a bond of an executrix, requests that it be but nominal. That he intended to leave her what the statute would have given her and a little more is, we think, as reasonable an inference from this will, considered in its entirety, as that he intended to exclude her from this substantial interest in the real estate which the statute gave her. It is a standard rule that the law favors that construction of a will which conforms most nearly to the general law of inheritance. Murdoch v. Bilderback, 125 Mich. 45 (83 N. W. 1007), and cases there cited. The provisions of the codicil, which he executed some years later, are confirmatory of the general scheme of the will, and manifestly only added in the interests of his wife, enlarging her discretion with a view to make it easier for her, as executrix, to handle the estate. In harmony with the above rule of construction, we conclude that his express directions that his real estate, subject to the life estate he created, be divided between his legal heirs “according to the provisions of the statute,” should be followed. The judgment is affirmed. — 257 — Stone, C. J., and Ostrander, Moore, Steere, and Person, JJ., concurred with Brooke, J.