38 Mich. 756 | Mich. | 1878
The plaintiff in certiorari maintains that the residuum of the personalty of the estate of William Stead is not appropriated by his. will and belongs, consequently, by force of the Statute of Distributions to the estate of plaintiff’s intestate, who was sole heir-at-law of defendant’s testator, the said William Stead, and this view has been strongly -and ingeniously supported by counsel.
The essence of the proposition is found in the assumption that William Stead, notwithstanding he left a will, actually died intestate as to this residuum, and this claim is made not on account of the want of expressions in the will showing an intelligent attempt .there to make a testamentary disposal, but upon the ground that the framework and terms of the will which concern the subject are too inaccurate and imperfect to be regarded as a valid testamentary disposition.
A careful scrutiny of the whole will
Now all admit that the real estate was actually dis
Whether under the rules of law the bounty thus intended to accompany the lot should be regarded as land or as personalty, it was certainly property and property capable of being given by means of any terms clearly evincing that tbe testator so willed. And in the opinion of tbe court tbe terms here were sufficient to 1 establish that it was tbe testator’s will that bis grandson should have tbe disputed property on reaching the specified age.
Tbe provision for tbe testator’s brother, Bobert Stead, as to this question, does not appear to be distinguishable.
The only legitimate conclusion to be drawn is that he willed that the given personal interest should go where he willed the lot should go, and that the recipient of the one should be the recipient of the other.
The claim that some part of this fund came from an ■independent source and not from those securities the "^proceeds whereof the testator provided should accompany lot twenty-seven, and hence that such part at least is distinguishable and covered by the right the plaintiff insists on, is sufficiently answered at this time by the circumstance that the assumed conditions of fact are not found.
We do not know that what remains exceeds the amount which the fund from the mortgages, would be entitled to after a marshalling of the assets. As the decision below is not shown to be erroneous it is affirmed with costs.
THE WILL.
In the name of God, Amen.
I, William Stead, of the city of Detroit,' in the county of Wayne, Michigan, do make and publish this my last will and testament, hereby revoking all former wills by me made.
And I do hereby appoint my brother, Kobert Stead, and my friends A. Smith Bagg and Edward Chope, all of Detroit, executors of this my last will and testament.
I give and bequeath unto my brother Kobert Stead’s daughters, Sarah, Harriet, Alice and Mary, the sum of six thousand dollars ($6000) to be equally divided between them at the rate of five hundred dollars yearly, in semi-annual payments of two hundred and fifty dollars every six months, commencing on the first day of July after my decease till the full sum of six thousand dollars without interest is paid them. If at any time either of the daughters should have died before receiving the full amount of their legacy the remainder shall go to their offspring if any and no one else. Should my brother, Kobert Stead, wish to relinquish the said park lot, No. 23, and give up possession I give unto Mrs. Kobert Stead during her natural life, the house and lot, they now occupy, from Woodward avenue to the east of the barn on the west of the alley, as a homestead, my executors to pay all taxes on said lot so long has she shall occupy it as a dwelling for herself; should she rent it she shall then pay all taxes. My executors shall build on lot twenty-seven (27), section eight (8), of the Governor and Judges of the city of Detroit, corner of Woodward avenue and Clifford street, three good and substantial brick stores. If not built upon, and should it become necessary to sell real estate for the purpose of building, they may sell park lot twenty-three, and the undivided half of the north half of lot thirty-five, sec. seven (lot 35, sec. 7), Gov. and Judges east of Woodward avenue, reserving from sale the house and lot that I have made a gift to Mrs. Kobert Stead during her natural life. After the payment of the foregoing legacies and of all of my just debts, funeral expenses, and all sums of money necessary for the building of said stores on lot 27, sec. 8, I give unto my grandson, William Stead Smith, all my real estate to do has he may please with excepting lot twenty-seven, sec. 8 (lot 27, see. 8) Gov. and Judges. This lot I give to him, the said William Stead Smith, during his natural life, and at his death shall descend to his heirs, if any, and if not, and should live till he becomes eighteen years of age, he shall have the power and right to will all
. I would also wish that if the stores is not built on lot 27, sec. 8, Gov. and Judges, at my death that my executors would so 'arrange matters with the mortgages and the real estate by converting thém into money, and have the stores built as soon as possible, providing they can be rented at a fair rent. I should wish such stores to be erected as those of Mr. Chapoton on the corner of Grand Biver and Woodward avenues, or as much better has my estate will afford at the time, with columns in the brick between the stores, somewhat equal to the Webber’s or Ereedman’s stores; then they can be converted into one or three stores has is wanted.
Should my grandson, William Stead Smith, be removed by death before he is eighteen years of age all my real estate shall then descend into tlie possession of my brother, Bobert Stead, but I again assert if my grandson, William Stead Smith should arrive at the age of eighteen years he shall have the right and power to will the said real "estate in this will to whom he pleases. My dearly
(Signed) Wm. Stead.
Signed by the said testator William Stead for his last will and testament, in the present of us, who at his request, in his sight and presence, and in the presence of each other, havo subscribed our names hereto as attesting witnesses.
(Signed) . Aeonzo Eaton, Detroit, Michigan.
Henby Campau, Detroit, Michigan.