49 Mich. 435 | Mich. | 1882
This is an appeal by Nancy Cox, one of the distributees under the will of Yolney Hascall, from the allowance of the account of Sophia B. Hascall, executrix, and the final order of distribution.
The will of Yolney Hascall bears date January 14, 1873, and is as follows :
“I, Yolney Hascall, aged fifty-three years, of Kalamazoo in the State of Michigan, being of sound mind, make and declare this my last will and testament: First. I give and bequeath to my wife Sophie, our homestead in Kalamazoo, with all my pictures, books, furniture, musical instruments, and clothing; also my house and lot in Centreville, St. Joseph county, in said State ; likewise $10,000 in cash and securities, as she shall elect. Second. I bequeath to my sister Caroline, if alive, two thousand dollars, payable within one year after my demise, in securities belonging to my estate. Third. I bequeath to Nancy, my niece, daughter of my sister Caroline, one thousand dollars in securities, payable within two years after my decease. Fourth. I bequeath Henry Sweetland, brother of my first wife, Louisa, one thousand dollars in cash or securities, as shall be most convenient, to- be paid within two years after my'decease. Fifth. I give and bequeath to Jerome and Fanny Wait, if alive, or if either be alive, the debt against the farm occu-’ pied by them on Gun Plains, due me on mortgage, if not*438 previously paid up. Sixth. I give to my balf-brother, Leonidas, five hundred dollars, and to my half-sister, Levantia, a like amount, to be paid them in cash or securities,-within three years after my demise, or sooner if convenient to the executrix. Seventh. I give to the Ladies’ Library Association, if in existence, five hundred dollars, and the same sum to the Young Men’s Library Association, if still existing, to be paid each in cash or securities within two years from my decease. Eighth. All the residue of my estate, after ail charges are paid, to be divided among my legal heirs, according to the laws of Michigan. And lastly, 1 appoint my wife, Sophie, executrix of this, my last will and testament.” [Signed and duly attested.]
Six years later he made the following codicil to his will:
“ On this first day of February, 1879,1 execute this codicil to my last will and testament, dated January 14, 1873, to add to and make some changes, as follows: First. I give and bequeath to my wife Sophia, five thousand dollars ($5000) in money or securities, or part of both, as she may prefer, in addition to the provision made further in my will, her rights as heir to remain good in all residuary property. Second. Also two thousand dollars ($2000) in money to my wife to procure mementos for friends not mentioned in my will, and to use otherwise as she knows would be pleasing to me. Third. Five hundred dollars ($500) to my sister-in-law, Mrs. Mary E. Brown, to be paid within a year after my decease. Fourth. I revoke the gift to the Young Men’s Library Association, mentioned in my will. Fifth. I desire that my wife shall not be required to give bonds or security for the performance of her duty as executrix under the will or this instrument. Sixth. I will my farm in Trowbridge, Allegan county, to my nephew, Joel Warren; his brother Douglass to have an interest of one thousand dollare ($1000) in the farm, for which Joel is to secure him by mortgage, at a rate of interest agreed between them. Seventh. My farm in Barry county I will to my nephews, the four sons of D. Cahill, in full of all claims they might have as heirs -under my will, each to share equally. Mghth.' Five hundred dollars ($500) to Henry Sweetland as a partial compensation on my part for his support of father and mother.”
[Signed and attested.]
The testator died February 21, 1879, and the will and codicil were duly probated, and letters testamentary issued to the widow. The testator left no children, and his. heirs-
In May, 1881, the executrix presented her final account for allowance, showing in her hands or accounted for $64,102.53. Nancy Cox appeared and contested the allowance, and after "the account had been passed upon by the probate judge, appealed to the circuit court. The questions principally congested in that court concerned the shares respectively which ithe widow and the contestant were to have in the residue after the specific gifts had been satisfied. The circuit judge was of opinion that the widow was entitled to one-half such residue, and that Nancy Cox, the contestant, was entitled to «hare the other half with her uncle and aunts, in the proportion of one to five. Order was entered accordingly.
In making this order the circuit judge gave effect to the 'will as he understood it. The parties agreed that all the property was given by the will; that nothing was left to intestacy; and that the question involved was one of construction merely. The contestant insisted that the testator, by designating the objects of his bounty as-his heirs, indi•cated his purpose that they should take as heirs; that is, that they should share in the property in the same proportion ¡that they would have taken as heirs in inheritable estate. "The executor on the other hand maintains that the word “ heirs” is employed merely to designate who shall take, but that the intent that they shall take “ according to the laws of Michigan” must be understood as meaning that the property shall be divided as the laws of Michigan would divide _
Similar questions to this have arisen many times, butithasnot often been the case that whether one construction or the-other was adopted the same persons would be the beneficiaries. In this case such is the fact. The widow, brother and sisters, nephews and niece of the testator are his heirs-at law, under the statute of this State, and they would also have been the distributees of his personal estate if he had. died intestate. But the widow’s proportionate share under the Statute of Distributions would be greater than under the Statute of Descents, and she is therefore interested in. maintaining that the Statute of Distributions was in the-mind of the testator in making this disposition of the residue.
The fact that the testator made use of the word “heirs”' in this clause is not very conclusive of his intent. Heirs is-a technical word, and when it is made use of in any legal instrument, there is a presumption, more or less strong: according to the circumstances, that it is employed in a technical sense. De Beauvoir v. De Beauvoir 3 H. L. Cas. 524. But in common speech the word is frequently used to indicate those who come in any manner to the ownership of any property by reason of the death of an owner, and may then include next of kin and legatees as well as those who-take by descent. And in wills, which are often very informal instruments and drawn without legal assistance, the word is sometimes employed with quite as little regard to the technical sense. The context may determine the meaning, and' when it does, effect must be given to the instrument accordingly.
Cases are numerous in which the word “ heirs ” in a will has been construed as designating the persons who should take as next of kin. In Gittings v. M'Dermott 2 M. & K. 69, the will gave to persons named “ and their heirs ” certain legacies. Three of the persons named died in the testator’s life-time. It was held that the legacies did not' lapse, but that they passed, not to the heirs of the persons-'
The doubt respecting the proper share of Nancy Cox arises upon the seventh clause of the codicil. As she is one of the five children of the testator’s sister Cordelia, she would, if the property were intestate, share equally with them in one-fourth of one-half of it. But her four brothers-are given a farm, which is to be in full of “ all claims ” they might otherwise have; and this gift excludes them from
This is the view taken by the circuit judge, and his order in the premises will therefore be affirmed.