Gunten v. McMaster

Per Curiam. Contestants, Robert McMaster and James McMaster, nephews of Rachel A. Shaw, deceased, appeal as of right from a May 2, 1983, order of the probate court, construing and interpreting the decedent’s will. The court found paragraph III of decedent’s last wrill and testament to be a residuary clause passing the entire residue of her estate to Anna M. Von Gunten, decedent’s niece and the will proponent. Contestants argued below, and again on appeal, that paragraph III is a simultaneous death clause, that the simultaneous death condition was not fulfilled, and that the residuary clause is ineffective. Contestants therefore contend that the wdll lacks a residuary clause, and that the estate of the decedent should pass by the laws of intestate succession. We affirm the probate court’s order. Paragraph II of the will is a joint and mutual residuary clause providing that in the event Rachel Shaw or Ralph Shaw died the residue of the estate would be left to the survivor. Paragraph III provides: "Provided, however, that in the event our deaths shall be simultaneous or that neither of us shall survive the other for a period of at least thirty (30) days, then and in such event, we, and the each of us, do and does hereby give, devise and bequeath all the aforesaid rest, residue and remainder of our estate and the estate of — 754 — each of us to the following named people and in the manner described; "One half to Ralph’s mother, Mrs. Grace Eteo, but in the event of her death prior to the effective date of this Will her share goes to Ralph’s brother, Elwood Shaw; "One half to Rachel’s neice [sic], Anna M. Von Gun-ten;”1 Rachel Shaw died more than two years after her husband died. We do not lightly dismiss contestants’ argument that in view of the will’s failure to expressly provide for the contingency which, in fact, occurred, i.e., nonsimultaneous death, the residue of the estate passes under the laws of intestacy. We are ultimately guided by the rule that the primary duty of any court faced with the task of resolving a disputed testamentary disposition is to effectuate as nearly as possible the intention of the testator. In re Butterfield Estate, 405 Mich 702, 711; 275 NW2d 262 (1979). The parties essentially agree with the trial court’s finding that the will is unambiguous. The court correctly limited its inquiry to the four corners of the will. In re Stuart’s Estate, 274 Mich 282, 284; 264 NW 372 (1936). Where a provision of a will is susceptible to more than one construction, a constuction resulting in intestacy will not be adopted if by any reasonable construction it can be avoided. Powell v Beebe, 167 Mich 306, 313; 133 NW 8 (1911). However, the presumption against intestacy cannot overcome the plain language of the will and the expressed intention of the testator as it appears in the will. Rozell v Rozell, 217 Mich 324, 330; 186 NW 489 (1922). Nor can the pre — 755 — sumption be used to create a bequest which the testator has clearly failed to indicate. LaMere v Jackson, 288 Mich 99, 103; 284 NW 659 (1939). The issue presented in the instant case was recently considered by this Court in In re Bair Estate, 128 Mich App 713; 341 NW2d 188 (1983).2 The Court held that the joint and mutual will clearly and unambiguously evidenced the testators’ intent to pass the estate to Nina Phillips Lake in the event of the simultaneous death of the testators or incompetency of the surviving spouse, but otherwise the surviving spouse would receive the estate. In so holding, the Court emphasized the language of ,the will which read: "[T]his will is made solely for the purpose of providing for the disposition of our property in the event that we are both killed in the same accident or one of us is killed and the survivor shall be in such condition, either mentally or physically that he or she is unable to make a disposition of his or her property.” 128 Mich App 716. (Emphasis added by the Court of Appeals.) Our construction of the instant will is not inconsistent with this Court’s construction of the Bair will. First, the definitive language emphasized by the Bair Court does not appear in the instant will. Second, mindful of this Court’s duty to harmonize all of the provisions of a will, Stebbins v Stebbins, 86 Mich 474, 478; 49 NW 294 (1891), and the rule that the general intent of the testator, as shown by the whole instrument, prevails over a particular intent shown by one single provision, Saunders v Michigan Trust Co, 274 Mich 310, 314; 264 NW 382 (1936), other clauses of the will support the proponent’s contention that Mr. and Mrs. Shaw did not intend that proponent would take the — 756 — residue of the estate only in the event of a simultaneous death. Paragraph V provides that the survivor can alter the terms of the will or write a new will. Under contestants’ interpretation, paragraph V would be mere surplusage since, 30 days after the death of the first spouse, the surviving spouse, by virtue of acquiring the estate, would automatically possess the power to alter the terms of the will or write a new will. On the other hand, if paragraph III is construed as a residuary clause, there is a need for the survivor to expressly reserve the power to alter the will. Furthermore, paragraph VII of the will provides that upon the death of both Mr. and Mrs. Shaw, Anna M. Von Gunten is to be appointed executrix. Paragraph VII does not condition the latter appointment upon the simultaneous death of the testators. If the operation of paragraph III is limited to the simultaneous deaths of the testators, then, in the event of non-simultaneous deaths, paragraph VII would also be rendered virtually meaningless3 since there is no need for appointment of an executrix for a will no longer in effect. The cases cited by contestants from this jurisdiction, as well as others, are distinguishable. In Lee v Gaylord, 239 Mich 274; 214 NW 104 (1927), the testator clearly failed to devise one-half of the remainder of his estate. In LaMere v Jackson, supra, p 103, the Court held a residuary clause void for uncertainty because any construction would have been "the purest speculation”. In re Erhardt’s Will, 28 Misc 2d 700; 213 NY S2d 169 (1961), cited by contestants for the proposition that when a will is devoid of any attempt to dispose of assets other than those specifically mentioned the — 757 — court may not create a disposition which the testator has not expressly or impliedly made, does not refute proponent’s analysis which rests on construction of paragraph III as a residuary clause. . More recently, the New York Surrogate’s Court was confronted with a situation almost identical to the instant case. In re D’Alessandro’s Will, 55 Misc 2d 909; 286 NY S2d 914 (1968), involved a joint and mutual will of a husband and wife who bequeathed "all our estates and effects * * * unto the survivor of either of us”. Paragraph III contained a residuary clause allegedly to take effect only upon the simultaneous death of the testators. The will did not provide for the contingency which occurred, i.e., the non-simultaneous deaths of the husband and wife, nor did it provide for distribution upon the death of the surviving spouse, nor did the will name any other beneficiaries. The New York Surrogate’s Court held that a reading of all of the provisions of the will demonstrated that after accomplishing their primary purpose of bequeathing all of their property to each other as survivor, the testators intended as their beneficiaries the proponents of the will named in paragraph III. Holding that only the named proponents were entitled to share in the estate, the court stated: "Here there is no ambiguity in the language of the will, but there is an omission which the court is bound to supply if a basis is found in the will itself clearly indicating testamentary intention to make the disposition omitted but necessarily implied therefrom.” In re D’Alessandro’s Will, supra, p 920. (Emphasis in original.) Likewise, we believe the instant will is reasonably construed to pass the residue of the estate to the persons named in paragraph III. — 758 — Affirmed. Footnotes [1] The court additionally ruled that since Grace Eteo and Elwood Shaw predeceased the testators, the applicable antilapse statute requires that the entire residue of the estate passes to the sole residuary survivor, Anna M. Von Gunten. Contestants do not directly challenge this latter finding. [2] Surprisingly, neither party to this appeal cited this case. [3] The only other clause of the will which passed property, paragraph IV, devised all of Rachel Shaw’s jewelry to the proponent.