In re RAYMOND ESTATE
Docket No. 267364
Michigan Court of Appeals
June 7, 2007
276 Mich App 22
Submitted April 17, 2007, at Detroit. Decided June 7, 2007, at 9:05 a.m. Leave to appeal sought.
The Court of Appeals held:
1. The probate court correctly construed Raymond’s will to mean that her surviving siblings receive 50 percent of the residue, her husband’s surviving siblings reсeive 50 percent, and the descendants of their predeceased siblings receive nothing. By stating that she wished the residue of her estate to pass to the siblings who survived her “share and share alike,” Raymond indicated that she desired a per capita distribution to her surviving siblings and those of her husband, thereby shutting out any claim by the descendants of predeceased siblings. The phrase “or to the survivor or survivors thereof” modified the phrase “my brother and sisters that survive me,” thereby referring to those siblings of Raymond and her husband who survived her, and indicated that Raymond intended that only the surviving siblings, not the descendants of any deceased siblings, inherit. While the first аnd second clauses are seemingly redundant, it is nonsensical to conclude that the drafter of the will intentionally constructed the
2. The language of the residuary clause, taken as a whole, expresses an intent to make a provision for the death of beneficiaries in a manner contrary to that provided for in the antilapse statute,
Affirmed.
MURPHY, J., dissenting, would conclude that the plain language of the will indicatеs that the estate would be shared by the surviving siblings and the surviving descendants of those siblings who predeceased Raymond. The probate court’s and the majority’s construction of the will would render the clause “or to the survivor or survivors thereof” meaningless. That clause was clearly meant to refer to a group other than the surviving siblings, and the only logical conclusion is that it referred to the descendants of predeceased siblings. The second clause should be interpreted as an alternate devise should a sibling not survive the testator. The language of the will indicates a clear intent that Raymond’s and her husband’s families share еqually, which intent would be defeated if none of Raymond’s siblings, for example, had outlived her. The probate court’s order should be reversed and the matter remanded for entry of a judgment in the respondents’ favor.
Anna Marie Anzalone for Clair A. Morse.
Burke and Rennell (by Robert J. Rennell) and Lahn & Associates (by Jeffery T. Hall) for Valerie Sharkey and others.
Before: WHITBECK, C.J., and MURPHY and COOPER, JJ.
WHITBECK, C.J. Respondents1 appeal as of right the probate court’s order denying their claim for a share in
I. BASIC FACTS AND PROCEDURAL HISTORY
Testator and her husband, Claude C. Raymond (Raymond), prepared mirror-image wills in January 1979. Testator died on February 27, 2005. Testator and Raymond did not have any children; thus, testator’s will provided that, after funeral expenses, administration costs, and taxes were paid, the residue of her estate should pass to Raymond. However, if Raymond predeceased her, which did in fact occur, testator’s will stated that the residue and remainder of her estate should be divided as follows:
A. Fifty (50%) per cent thereof to my brother [sic] and sisters that survive me share and share alike or to the survivor or survivors thereof.
B. Fifty (50%) per cent thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
The record indicated that testator had five brothers and three sisters. When testator died, only two of her brothers and none of her sisters were still alive. Raymond had six sisters and two brothers. However, when testator died, only Raymond’s two brothers and one of his sisters were still alive. Respondents are descendants of those siblings of testator and Raymond who predeceased testator. Although the lower court record does not contain any accounting of the estate, the inventory indicates that the estate’s total assets were $796,796.31.
In June 2005, petitioner Clair A. Morse, testator’s brother, filed a petition for probate. One month later, Morse filed a petition to construe testator’s will. Morse
Respondents argued that the probate court should construe the residuary clause to mean that the descendants of the deceased siblings could take their deceased ancestors’ shares by representation. Respondents asserted that a patent ambiguity resulted from the combination of the phrases “that survive me” and “or to the survivor or survivors thereof.” They argued that, if the phrase “or to the survivor or survivors thereof” was simply ignored, the antilapse statute would apply, which would create a result contrary to testator’s intent that each side of her and Raymond’s family receive an equal one-half share of the estate. Respondents explained that this intent would be defeated by Morse’s suggested interpretation, under which one side of the family could take the entire residue if all the siblings on the other side of the family were dead.
The probate court granted Morse’s petition for probate and appointed a temporary personal representative. The probate court then conducted a hearing and stated the
[Pаragraph A] may appear on its face to be confusing. In this court’s eyes it does not appear to be confusing. It may be inarticulate meaning that there were words thrown in there that were not necessary to reach the result and desire, but, I think in reading the clause one has to look at the first phrase, “Fifty per cent thereof to my brother and sisters that survive me”, then there is a coma [sic]. It would appear to this court that the group that Ms. Raymond was dealing with were to [sic] her brother and sisters. Then she qualified that group by “those that survive me”. The remaining clause, in this court’s eyes, would be descriptive of the earliеr group, the earlier group being “my brothers and sisters that survive me”. The remaining phrase, “to share and share alike or to the survivors thereof” would mean to my brothers and sisters, to those that predecease me, to those that are left, to share and share alike and to the survivors thereof. The court would so rule as this court reading the language that way. Likewise on paragraph ‘B’ the court’s similar logic would be concerning “the brothers and sisters of my husband that survive me”, and once again coma [sic], “and the balance share and share alike or to the survivors thereof” are descriptive of the benefit to be received by the class before it which would be to [sic] the brothers and sisters of my husband that have to survive, and, I’m using the term “have to”. The term in the will was “survive me”, and, to me that is a clarifying term and it narrows the class down. They have to survive him [sic] to share and share alike or to be a survivor thereof.
The probate court’s order provided as follows:
[T]he language used in paragraph “Second” [of the will] is to be construed to mean that the two surviving brothers of [testator] will receive fifty percent of the residue of the estate and that the two surviving brothers and one surviving sister of the husband of [testator], being [Raymond],
shall receive fifty percent of the residue. The surviving descendants of the predеceased brothers and sisters of [testator] and the surviving descendants of the predeceased brothers and sisters of the husband of [testator], being [Raymond], are not entitled to any share in the residue.
Respondents now appeal.
II. CONSTRUING THE WILL
A. STANDARD OF REVIEW
Respondents argue that the probate court erred in construing testator’s will. A probate court’s construction of a will is a legal question that we review de novo.3 “Findings of the probate court, sitting without a jury, are to be reversed by this Court only when clearly erroneous.”4
B. LEGAL STANDARDS
The probate court’s role is to ascertain and give effect to a testator’s intent, which it gleans solely from the plain language of the will unless there is an ambiguity.5 If possible, each word of a will should be given meaning.6 “A patent ambiguity exists if an uncеrtainty concerning the meaning appears on the face of the instrument and arises from the use of defective, obscure, or insensible language.”7
1. THE RESIDUARY CLAUSE
As stated, testator’s will provides that the residue of the estate should be divided as follows:
A. Fifty (50%) per cent thereof to my brother[s] and sisters that survive me share and share alike or to the survivor or survivors thereof.
B. Fifty (50%) per cent thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
Respondents argue that the probate court erred in construing the will so that testator’s surviving siblings received 50 percent of the residue, Raymond’s surviving siblings received 50 percent, and respondents received nothing. Respondents contend that the inclusion of the phrase “or to the survivor or survivors thereof” meant that testator intended for the “survivors”—that is, descendants—of the predeceased siblings to inherit. Conversely, Morse contends that the probate court properly concluded that the phrase “or to the survivor or survivors thereof” refers solely to testator’s and Raymond’s surviving siblings.
As the parties have presented it, the dispute here hinges on reconciling two important clauses of the residuary clause: (1) “to my brother[s] and sisters that survive me share and share alikе”8 and (2) “or to the survivor or survivors thereof.”
a. THE FIRST CLAUSE
It is undeniable that the language of the first clause expressly qualifies the class of “brothers and sisters”
Although overlooked by both Morse and respondents, the second half of the first clause—“share and share alike”—bolsters an interpretation limiting the class solely to the surviving siblings. The Michigan Supreme Court has held that a class gift that directs that a devise be divided “share and share alike” indicates the testator’s intent to create an equal division among the members of the class, whose members are usually related to the testator in equal degrees, using a per capita distribution.9 Further, Black’s Law Dictionary specifically defines the phrase “share and share alikе” as: “To divide (assets, etc.) in equal shares or proportions; to engage in per capita division.”10 Black’s Law Dictionary defines “per capita” as: “[Latin ‘by the head’] 1. Divided equally among all individuals, [usually] in the same class .”11 Therefore, by stating that she wished the residue of her estate to pass to the siblings who survived her “share and share alike,” testator indicated that she desired a per capita distribution,
b. THE SECOND CLAUSE
Despite two imрortant indicators in the first clause that testator desired to limit the class gift to the surviving brothers and sisters, respondents contend that the second clause—“or to the survivor or survivors thereof”—must be given effect, whereby they are also entitled to take a portion of the residue. Although disagreeing on their significance, in interpreting this second clause both parties direct us to consider the language used in two Michigan cases: In re Burruss Estate and In re Holtforth’s Estate.12
In In re Burruss Estate, the decedent’s will provided as follows:
In the event my said husband ... should predecease me, or in the event that my husband and I should meet our deaths simultaneously, as in some common catastrophe, then in either of such cases, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever situated, in equal amounts, share and share alike, to my daughters, Anna Mary Vollick of Redford Township, Wayne County, Michigan, Jeanne Glaeser of Detroit, Michigan and Audrey Larson of Detroit, Michigan, or to the survivor or survivors of them.13
The decedent’s husband and Audrey Larson both predeceased the decedent. Upon the decedent’s death, Audrey Larson’s three children claimed that they were
In reaching its resolution in Burruss, this Court relied in part on the Michigan Supreme Court’s opinion in Holtforth. There, the Court considered a similar will that devised property “[t]o the seven children of [the decedent’s brother], and the survivor of them . . . .”16 The Court held the language to mean that only the surviving children were entitled to inherit.17
Respondents nevertheless contend that “the word ‘survivors,’ except where it has a specific legal meaning resulting from a legal precedent, is a generic term that includes descendants.” We, however, conclude that Bur-
Respondents also argue that Burruss and Holtforth are distinguishable because the wills in those cases stated “to the survivor or survivors of them” and “the survivor of them,” respectively, rather than “or to the survivor or survivors thereof” as used here. Although not an exact match, we conclude that the second clause parallels the language used in Burruss and Holtforth. While the clause here employs the word “thereof” rather than “them,” we do not find it unreasonable to construe the phrase used here, “or to the survivor or survivors thereof,” as referring back to the brothers and sisters who survived testator. We therefore conclude that the phrase “or to the survivor or survivors thereof” in paragraph A modifies the phrase “my brother[s] and sisters that survive me,” thereby referring to those of testators’ siblings who survived testator, and indicates that testator intended only for her surviving siblings, i.e., not the descendants of any of her deceased siblings, to inherit. Similarly, the phrase “or to the survivor or survivors thereof” in paragraph B modifies the phrase “the brothers and sisters of my husband that survive me”; therefore, it refers to those of Raymond’s siblings who survived testator and indicates that testator intended for only the siblings of Raymond who survived her, i.e., not the descendants of any of his deceased
Respondents further argue that the phrase “brother[s] and sisters that survive me” and the phrase “to the survivor or survivors thereof” are redundant and that our interpretation renders the clause “to the survivor or survivors thereof” surplusage, which goes against the tenet of will construction that, if possible, each word of a will should be given meaning.20 Respondents contend that, if testator had wanted to give a class gift solely to her brothers and sisters who were alive at her death, then she would have simply stopped at the end of the first clause. They contend that the second clause must be given some meaning and insist that the meaning given inure to their benefit. We acknowledge that the first and second clauses are seemingly redundant; however, we find it nonsensical to conclude that the will drafter intentionally constructed the residuary clause in such a way as to indicate contradictory intents within a single sentence. Indeed, were we to agree with respondents, we would have to rewrite the will to instead state: “Fifty (50%) per cent thereof to my brother[s] and sisters or to the descendants thereof.” This we cannot do.21 Rather than reading the two clauses as competing with each other, we find that the better course of action is to read the clauses together as reinforcing testator’s intent to equally divide the residue among the surviving siblings.
Finally, respondents argue that our interpretatiоn violates testator’s and Raymond’s apparent intent that each side of the family receive an equal one-half share of
“The rule that such a construction should be given as will, if possible, avoid intestacy, is invoked; also, the rule that the will speaks from the time of the death of the testator; and undoubtedly the intention should be sought with both rules in mind, but neither rule should be so applied as to extend the force of terms which are obviously restricted.”24
Thus, because there were surviving siblings on each side of the family at the time of testator’s death, we decline to engage in speculative application оf the rule of avoiding intestacy because it would unnecessarily extend the force of the specific terms of art used in the will.
2. THE ANTILAPSE STATUTE
Under the current antilapse statute, “words of survivorship, such as in a devise to an individual ‘if he survives me’ or in a devise to ‘my surviving children,’
D. CONCLUSION
The probate court correctly construed testator’s will to mean that her surviving siblings receive 50 percent of the residue, Raymond’s surviving siblings receive 50 percent, and the descendants of their predeceased siblings receive nothing. Accordingly, we affirm the probate court’s order.
Affirmed.
COOPER, J., concurred.
In re RAYMOND ESTATE
MURPHY, J. (dissenting).
MURPHY, J. (dissenting). Because I conclude that the plain language of the will indicates that the estate would be shared by surviving siblings and the surviving descendants of siblings who had predеceased the testator, Alice J. Raymond, I respectfully dissent.
Respondents appeal as of right the probate court’s order denying them a share of the residue of the testator’s estate. Respondents argue that the probate
The testator and her husband, Claude C. Raymond (Raymond), prepared mirror-image wills that bequeathed, after the payment of funeral and administration costs and taxes, the residue and remainder of the estate to the other spouse should he or she still be living. Raymond predeceased the testаtor, and, under these circumstances, the testator’s will provided that the residue and remainder of the estate was to be divided as follows:
A. Fifty (50%) per cent thereof to my brother [sic] and sisters that survive me share and share alike or to the survivor or survivors thereof.
B. Fifty (50%) per cent thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
When the testator died, two of her brothers and three of Raymond’s siblings were living. Respondents are descendants of those siblings of the testator and Raymond who were deceased when the testator died. The testator’s brother, petitioner Clаir A. Morse, filed the probate petition and subsequently requested construction of the testator’s will. He argued that the probate court should construe the residuary clause to mean that only the siblings of the testator and Raymond who survived the testator’s death would share in the estate, with no share going to the surviving descendants of siblings who had predeceased the testator. The trial court agreed, concluding that the clause “or to the survivor or survivors thereof” referred only to siblings who survived the testator and not the descendants of predeceased siblings.
A probate court’s construction of a will is a legal question that we review de novo. In re Reisman Estate,
I conclude that the plain language of the will indicates that the estate would be shared by the surviving siblings and the surviving descendants of siblings who had predeceased the testator. The probate court’s construction of the will would render the clause “or to the survivor or survivors thereof” redundant and without meaning.
In In re Burruss Estate, 152 Mich App 660, 662; 394 NW2d 466 (1986), this Court interpreted the following will provision:
“... I give, devise and bеqueath all the rest, residue and remainder of my estate, both real and personal, wheresoever situated, in equal amounts, share and share alike, to my daughters, Anna Mary Vollick of Redford Township, Wayne County, Michigan, Jeanne Glaeser of Detroit, Michigan and Audrey Larson of Detroit, Michigan, or to the survivor or survivors of them.”
Two of the daughters survived their decedent mother and claimed that, under the will, they alone should share in the estate, with no share being distributed to the children of the third daughter, who had predeceased her decedent mother. This Court, relying on In re Holtforth’s Estate, 298 Mich 708; 299 NW 776 (1941), agreed and held that the clear language of the will showed the decedent’s intent that only her surviving daughters, not their descendants, inherit under her will. Burruss, supra at 664-665.
In Holtforth’s Estate, supra at 709, the language in the will devised and bequeathed part of the decedent’s
We conclude it clearly appears from the context of the will itself the testator by the terms of this second paragraph [quoted above] intended and provided that in the event one or more of the children of John Holtforth predeceased the testator, the portion of the estate that passed under this second paragraph оf the will should go to the survivors of the John Holtforth children. [Id. at 711.]
I find that Burruss and Holtforth’s Estate are distinguishable because of a significant difference in the language of the wills. Before the clause “or to the survivor or survivors thereof,” the will in this case specifically defines the brothers and sisters inheriting under the will as those “that survive me,” with “me” being the testator. No such defining language is found in the wills at issue in Burruss and Holtforth’s Estate. Reading the subsequent clause “or to the survivor or survivors thereof” to likewise narrow the field of devisees to the testator’s and Raymond’s surviving siblings is illogical because that point had already been established. Clearly, the concluding clause was meant to refer to a group othеr than the surviving siblings, and the only logical conclusion is that this group consisted of the descendants of predeceased siblings, i.e., their survivors. To construe the clause otherwise would render it meaningless, and every word in a will should be given meaning. Reisman Estate, supra at 527. In both Burruss and Holtforth’s Estate, there was no redundancy in the interpretations rendered by the courts, but such a redundancy would exist in the case at bar were we to agree with the probate court’s construction. Under the probate court’s and the majority’s interpretation of the will, the testator was essentially stating that she wished to leave her brothers and sisters part of the estate if
In my opinion, the majority’s reliance on the phrase “share and share alike” does not bolster a construction that limits the class solely to surviving siblings because the analysis ignores the second clause that makes an alternate gift if a sibling predeceased the testator. The phrase “share and share alike” simply indicates an intent that any surviving siblings be treated equally. With respect to the majority’s reliance on the definition of “survivor,” words must be read and understood in their grammatical context, see Shinholster v Annapolis Hosp, 471 Mich 540, 549; 685 NW2d 275 (2004), and the majority fails to read the term in the context of the second clause as affected by the first clause. A “survivor” is “[o]ne who outlives another.” Black’s Law Dictionary (7th ed). Read in context, “survivor,” as used in the second clause, refеrs to an alternate devisee should a sibling have predeceased the testator, and there can be no dispute that a deceased sibling’s descendant “outlived” the deceased sibling.
Furthermore, the 50-percent family-division language found in the will supports my interpretation. This language indicates a clear intent that the two families share equally. This intent would not be honored were one to interpret the will as done by the majority and the probate court. For example, if none of Raymond’s siblings had outlived the testator, there would be no gift whatsoever to Raymond’s side of the family because the prospective 50-percent gift would presumptively be awarded to the testator’s side of the family
I would reverse and remand for entry of a judgment in favor of respondents. Accordingly, I respectfully dissent.