204 Mich. 35 | Mich. | 1918
(after stating the facts). Counsel for plaintiffs say there are two questions involved:
“First. The proper construction and meaning of the will of Elmer Stafford, deceased, particularly of the eighth and ninth paragraphs.
“Second. The right of plaintiffs at this time to be heard in court on their bill of complaint under all of the allegations and all reasonable presumptions therefrom and to the relief that plaintiffs pray for.”
After an exhaustive analysis of sections eight and nine of the will, counsel for plaintiffs asserts:
“Taking this view of the ninth paragraph and reading it in connection with the eighth paragraph preceding, the purpose- of the testator is so evident that it is submitted the court cannot disregard its plain and clear meaning to give to Howard Stafford only a restricted and limited estate and right of control over the property for the purpose of having it confined to the blood relations of the deceased.
“It was clearly the purpose of the testator to give to Howard Stafford the benefit of the use of said estate during his life with the power to convey and dispose of the same at or before his death, either to his child or children if any survived him, and if no child or children survived, then under the will the property shall go to the blood relations of the deceased living at the time of his death, under the rules of law governing the disposition of estates under last wills and testaments.”
—and claims that this interpretation of the language of the will is warranted by our decisions in Gadd v. Stoner, 113 Mich. 689, and Robinson v. Finch, 116
“which sum is all that I wish said Martha Stafford and any of her blood relations ever to have of my property,”
—and that in the ninth:
“but I want my son Howard to make such disposition of the property I hereby will to him that it shall be kept in the line of the Stafford blood and if any be poor or crippled I would like my said son Howard to favor those first out of said property.”
—are both clearly of a precatory character. The testator conveyed to his son an absolute estate in fee with full power of disposition but desired his son tknow what his wishes were with reference to the ultimate destination of the property so devised. No language is found in either of the sections in question placing any legal limitation upon the estate thereby conveyed to the son, nor can it be said (regard being had for the language used), that the testator desired to impose any such limitation. That the son failed to heed the admonition of his father and to give effect to his father’s clearly expressed desire is unquestioned, but that is a contingency against which the testator could have, but did not, provide. It affords no argument for a strained or unusual construction of the
We are of opinion that the order of distribution made by the probate court of Hillsdale county, bearing date July 24, 1895, by the terms of which the residue of the estate of Elmer Stafford was assigned to Howard Stafford and which required a construction of the will of Elmer Stafford, was proper and that the construction of the disputed sections of the will which was the basis of the order, is the only construction possible. Our determination upon this point renders consideration of the second question unnecessary, for, if the construction of the will by the probate court was correct, the allegation in the bill of complaint that such construction was brought about through fraudulent representations made by Howard Stafford is wholly unimportant. It is further unnecessary in this case to determine the claim made on behalf of the defendants that the orders of the probate court are as to plaintiffs res adjudicala, though upon this point see Calhoun v. Cracknell, 202 Mich. 430.
The decree dismissing the bill is affirmed.