Manshaem v. Nichols

Brooke, J. (after stating the facts). The question involved is whether under a proper construction of paragraphs three and four of the will, the sale of testator’s farm during his lifetime worked an ademption or revocation pro tanto so that the proceeds of the farm should pass to the daughters under paragraph three instead of to the sons under paragraph four. We have repeatedly held that the first and most important rule to be observed in construing wills is to ascertain the intention of the testator and to give effect to that intention if it be legally possible. Stender v. Stender, 181 Mich. 648; In re Ives’ Estate, 182 Mich. 699; In re Shumway’s Estate, 194 Mich. 245 (L. R. A. 1918A, 578); Kirsher v. Todd, 195 Mich. 297; In re Blodgett's Estate, 197 Mich. 455. That intention must be gathered from the whole will, and, where possible, effect must be given to all of the provisions [10] of the instrument. While the will speaks from the death of the testator and not from its date, construction may often be aided by a consideration of the facts and circumstances existing at the date of the will. At the time the will was made it is obvious that the testator was possessed of personal property not exceeding in value the sum of $800. The provisions of paragraph three indicate that the testator believed that that class of property at the time of his death might be less than that amount, he, therefore, provided that the two sons .named in paragraph four should, if necessary, contribute in equal shares a sum sufficient to make up such possible deficiency. After this provision and as a part of paragraph three he used this significant language: “The provisions made in this paragraph for my said daughters, together with such gifts as I have made them in the past, shall constitute their entire shares in my estate.” In the fourth paragraph he names his executor and provides for a sale by the executor of his farm, adding: “After said sale has been consummated, I give, devise, and bequeath unto my two sons, Daniel F. and Evril J. Manshaem, the entire rest and residue of my estate, the same to be had by them in equal shares, to have and to hold to them and their respective heirs forever.” After reading these two paragraphs it is impossible to doubt that it was the testator’s intention most clearly expressed to give to his two daughters the personal property remaining after certain specific bequests, testator’s funeral expenses, administrator’s expenses and burial expenses had been paid. This balance from his knowledge of the estate he presumed might not amount to $800 and therefore he provided that his two sons should make up such possible deficiency. He further indicated that the farm should be, by his executor, sold and the entire rest and resi [11] due of Ms estate was devised and bequeathed equally to his two sons. The rule as to ademption or the presumption of revocation through a change during the lifetime of the testator in the nature of the property devised or bequeathed does not apply where, as in this case, the proceeds of a certain property and not the property itself is the subject of the gift. Paragraph four does not constitute a specific devise of the farm to the two sons. . SpeaMng of a similar situation, the court, in the case of Bills v. Putnam, 64 N. H. 554 (15 Atl. 138), said: , _ “They treat this matter as though there was a specific devise of real estate, or as though the last clause of the will was incapable of disposing of anything but real estate. If that were so, there might be some' ground for their, position. But when, we see there is no specific devise of real estate, and that the last clause of the will, instead of being restricted to disposing of real estate, is a sweeping residuary clause, capable of disposing of both personal and real estate, this whole objection is at once disposed of. The conveying of part of the real estate by the testatrix after the making of the will, with such a residuary clause as is in this will, does not indicate any change of intention on her part in regard to the disposition of her will pro tanto, because she was perfectly aware that the proceeds of this real estate, being in personal property, could pass equally as well under this residuary clause as the real estate itself.” See, also, upon this point, 2 Alexander on Wills, p. 1089; Black’s Estate, 223 Pa. 382 (72 Atl. 631); and Miller’s Exr. v. Malone, 109 Ky. 133 (58 S. W. 708, 95 Am. St. Rep. 338). Testimony introduced at the time of the trial as to fugitive statements made by the testator after the sale of the farm to Daniel to the effect that Daniel would never receive any more of his property, are relied upon by appellees as indicating a change in the testator’s intention toward Daniel Manshaem' and [12] that he intended by the sale of the farm to Daniel to change the farm into personalty for the purpose of having it go to his daughters under paragraph three instead of to his sons under paragraph four. We have seen that the sale of the farm by the testator during his lifetime to Daniel does not legally affect the rights of Daniel and his brother uiider paragraph four of the will. If it appeared beyond peradventure (which is not at all the case), that this sale was made with the avowed purpose of disinheriting Daniel and his brother, the result must be the same. The judgment is reversed, with costs to appellant. Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.