Hollway v. Atherton

Brooke, J. (after stating the facts). The first contention of the appellant is that the second paragraph of the will does not in words create an estate of inheritance in Laura M. Davis. This contention we presume is based upon the fact that the testator failed to use the word “heirs” in connection with the devise. The use of the word is not necessary in order to create an estate in fee simple. Section 11818, 3 Comp. Laws 1915, provides: “Every devise of land in any will hereafter made shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.” See Killefer v. Bassett, 146 Mich. 1. It is next asserted on behalf of the appellant that a fair construction of this will, read in its entirety and in the light of the situation of the testator and the objects of his bounty at the time it was made, is that it was the manifest intention of the testator to clothe his wife, Laura M. Davis, with an estate for life, only, with remainder over to the beneficiaries named in paragraphs four and five of the instrument. In support of this contention the following decisions are relied upon: Gadd v. Stoner, 113 Mich. 689; Robinson v. Finch, 116 Mich. 180; In re Mallary’s Estate, 127 Mich. 119; Thorn v. Scofield, 143 Mich. 478; Fecht v. Henze, 162 Mich. 52. On the other hand it is the claim of the appellee that the case falls clearly within the principle of the following decisions: Dills v. LaTour, 136 Mich. 243; Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323); Killefer v. Bassett, supra. We are of opinion that the contention of the appellant must fail. The language in paragraph two of the will is clear and unambiguous and without question imports the creation of an estate in fee in Laura M. Davis. We have [133] held that language standing alone sufficient to create an estate of inheritance may be so modified by subsequent language as to limit or qualify the estate originally apparently created. Forbes v. Darling, 94 Mich. 621; In re Owen’s Estate, 138 Mich. 293. The language contained in paragraph three constitutes in our opinion such a modification or qualification. The mandate therein contained is just as positive and unequivocal as that contained in paragraph two. See Fecht v. Henze, supra. John D. Davis being now dead the provisions of paragraph three for his support become unimportant except that a consideration thereof may aid in determining the intention of the testator as to other provisions of the instrument. Coming now to the provisions of paragraphs four and five. The peculiar language of these provisions bring this will clearly within the decisions above cited and relied upon by appellee. There is here no limitation upon the right of the first taker to dispose of the entire estate during her lifetime, but an attempt is made in both paragraphs four and five to dispose of an uncertain remainder. Further argument in support of the contention of appellee is that the language of paragraphs four and five read together imports on the part of the testator simply a request. The first part of paragraph four requests: “that all the real or personal property remaining at my death shall be distributed as follows:” Then follows the alleged bequest to Carrie Maud Atherton and (in paragraph five), the alleged bequest to the Holland Home Benevolent Association. The language used is clearly precatory. As to these matters the testator desired his widow, Laura M. Davis, to make certain use of such of his estate as should remain unconsumed at her death, but imposed upon her no legal obligation to carry out his wishes so ex [134] pressed. The case upon this point is within the reasoning of the late case of Crisp v. Anderson, 204 Mich. 35. The decree is affirmed. Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.