Hansbarger v. Hansbarger

Ostrander, J. (after stating the facts). It is the rule in this State that persons having such an interest [292] in an estate as entitles them to contest a will may make agreements to forbear or prevent contests. Bean v. Bean, 144 Mich. 599; Hull v. Hull, 149 Mich. 500; Garvin v. Stone, 152 Mich. 594; Conklin v. Conklin, 165 Mich. 571; Layer v. Layer, 184 Mich. 663; Sellers v. Perry, 191 Mich. 619. We are of opinion that the agreement in this case is, plainly, not to contest the probating of the' will. The agreement was executed when the will was, without contest, admitted to probate. No appeal was taken and the widow paid the legacy to Nelson David Hansbarger, releasing the real estate and the proceeds of it from any lien in his favor. The will, however, was still an instrument, the meaning of which was to be determined. Admitting it to probate necessarily submitted it to the probate court for construction, if construction was required, and to interpretation. None of the parties agreed to submit to any assignment of the estate which the probate court might make. And when the widow indicated by her election that she gave to the will a meaning different from the one claimed for it by the other persons in interest, the power of the chancery court to settle the dispute was clear. Judicial construction of this instrument under the circumstances does not involve a contest of the probating of the will. The agreement expressly recites that the estate shall be administered “according to the terms of said will except as herein provided.” The question presented to the court is one of the meaning of the terms of the will. It is true the preamble to the agreement expresses as an inducement for making it the avoidance of all litigation and the expense of the same and a desire to reach an amicable settlement of the estate. If, construing the entire agreement, there seems to be any difference in meaning between these or any of these preliminary statements and the agreement proper, the operative part, being clear and un [293] ambiguous in meaning, must be given effect. This is the general rule. 24 Am. & Eng. Enc. Law (2d Ed.), p. 59. See, also, Black v. Herring, 79 Md. 146 (28 Atl. 1063) ; Chase v. Dickey, 212 Mass. 555 (99 N. E. 410) ; Chew’s Appeal, 45 Pa. St. 228; Rood on Wills, § 622; Page on Wills, § 683. . The circuit court has determined that the widow was wrong in her construction of the will and was claiming too much — has decided that by the terms of the will she cannot have what she claims. This construction preserves to the widow a right of selection, which the will gives to her, does no violence to any language contained in the will. Testator might have devised to her a particular portion, bounding it or describing it. It is not clear, we think, that the fifth clause of the will is entirely meaningless; certainly it does not cast doubt upon the proposition that the testator devised one-third of his real estate, in value, to his wife. We affirm the decree in respect to the construction of the will and reverse it in so far as it adjudges the agreement of the parties to be forfeited and canceled. Plaintiffs will recover costs of this appeal. Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.