Colby v. Wortley

Brooke, J.' (after stating the facts). The fourth paragraph of the will reads: “I give and bequeath eighty acres of land on section 32 in town 3 south, of range 7 east, to Henry Colby and his children.” The decree provides with reference to this section: “The eighty acres known as the west half of the [615] southeast quarter of section thirty-two in said township of Ypsilanti shall go tQ the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.” It is the contention of appellants, touching this part of the decree that the court should have held that Henry Colby and his children, of whom there were seven at the time the will became operative, each took an undivided one-eighth of the eighty acres mentioned. We are of opinion that the construction contended for is sound. The eighty acres in question is given neither to Henry Colby nor to his children but to Henry Colby and his children. Each of those named, therefore, would, according to the number in the class, take an aliquot part of the eighty acres and the eighth thereof acquired under the will by Henry Colby, title to which remained in him at the time of his death, would be liable for the payment of so much of his debts as remained unliquidated after the appropriation of his personal estate. The next question arises over the provision of the will as contained in the fourth paragraph. “The balance of said forty acres I do give and bequeath to Henry Colby and his children,” —with reference to which the decree provides: “The remainder of said forty acres shall go to the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.” This provision of the decree is. in our opinion subject to the same infirmity as that relative to the eighty acres above discussed. As to the portion of said forty acres here described, Henry Colby and his seven children each took an undivided one-eighth under the terms of the will, Henry’s eighth, undisposed of in his lifetime, being subject to the payment of his debts. The next question arises with reference to the con [616] struction of the further provisions relating to said forty acres, part of which follow: “I give 28 rods wide of west part (divided north and south) to Sarah Wortley. * * * “The 28 rods wide on section 33, which I have willed to Sarah Wortley shall go to Irene Wortley and Henry Colby after the death of Sarah Wortley.” The decree provides that as to this 28 rods, upon the death of Sarah Wortley, Irene becomes the owner of the one-half and the children of Henry Colby become the owners of the other one-half. This, too, we think is an erroneous construction of the language under consideration. There is no ambiguity here. A life estate is clearly created in Sarah Wortley with remainder over to Irene Wortley and Henry Colby. Upon the death of the testator, therefore, Irene Wortley and Henry Colby became seized of an estate in fee subject to a life estate in Sarah Wortley. The next provision likewise found in paragraph four is as follows: “And I do further give to said Henry Colby three acres of land in Augusta, described as follows:” etc. With reference to this three acres the decree provides : “The aforesaid children of Henry Colby, deceased, will take the three-acre tract in the township of Augusta.” It is asserted in the brief of counsel that Henry Colby died without in any way alienating or incumbering his title to said three acres and it is alleged that as to this property the decree should have confirmed the title in Henry Colby instead of in his children. With this contention we agree. While the will under consideration is. inartificially drawn, we do not find it difficult to ascertain the intention of the testator from the language used. Neither the lapse of time since the will became operative nor the fact that [617] Henry Colby is now dead has any bearing upon the question under consideration. The decree of the court below is reversed, and one will be entered in this court in accordance with the views above expressed. Costs to appellants. Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.