48 Mich. 369 | Mich. | 1882
This is a case made after judgment. The parties agreed on a state of facts which the court embodied in a finding.
The question involved is whether the appellant is entitled to share in a particular fund or is cut off by advaucement. His. father Isaac Turner died on the 6th of March, 1879, leaving eight children including appellant. He left a will a copy of which is given below.
About two yeai’s before the date of the will the testator and his wife conveyed to appellant a lot in Grand Kapids and the deed set out the consideration as $300 cash “ and the relinquishment of all right or title to any of the estate of Isaac Turner as heir or otherwise.” This property was-worth $1700 in excess of the cash consideration of $300, and the appellant immediately sold his interest for $2000 in money. The share which would result to each of the other children of the fund in controversy, — $5000,—in case of appellant’s exclusion would not exceed about $1400. The
The parties in making up the case have expressed their assent to the proposition that an intestacy existed in regard to the fund in question, and the court seems to have assumed this to be so, and therefore that the specific property was open to the doctrine of advancement, which the deed was deemed sufficient to call up. Whether the fund referred to is intestate is a question of construction and not a matter of fact, and the court must act on its own views' of the law. The admissions of the parties are not entitled to control.
There can be no doubt that the grant made to appellant must have operated as an advancement in case the grantor had so elected. But he was not bound to leave it to have that effect. He could not recall what he had given, but his power over his remaining property was plenary and he could
But the testator took care to manifest his will in regard to the final disposition of the $5000. He ordered that on his wife’s death it should revert to his estate, or in other words be subject to- his further disposition, and such further disposition is disclosed near the end of the will. He there states it to be his will that his gifts to Isaac shall be received in lieu of all claims except to the amount of his share in the $5000, and that he is to have said interest, or in other words his share in the $5000, with the rest of the testator’s heirs.
This provision is fairly open to only one construction. It. is a gift of the $5000 to the persons answering the descrip
The orders made by the courts below must therefore be reversed and one entered here in conformity with this opinion, and the costs will be paid out of the fund and the clerk will certify the determination to the said courts respectively.
I, Isaac Turner, of the city of Grand. Rapids, Kent county, and State of Michigan, being of sound mind and memory, and being desirous of disposing of my property, money, and effects according to my own best will and judgment, and now while in comparative health and in possession of my full faculties of mind, to make such provision for my wife Elizabeth Miller Turner, and my infant son Isaac, as I deem best, I do therefore make and declare this to be my last will and testament.
First. I give and bequeath to my said wife Elizabeth Miller Turner, the use of lot six, and ten feet off from the north side of lot seven, that is to say, a strip of land ten feet in width north and south, and extend
And the said lot six, and ten feet off from tire north side of lot seven, all in block four, Scribner & Turner’s addition to the city of Grand Rapids, after said Elizabeth shall have had the use as aforesaid, I give- and devise to my said infant son Isaac Turner, his heirs and assigns, together with all the hereditaments and appurtenances thereunto belonging, to have and to hold the premises above described, (being the homestead), to the said Isaac Turner, his heirs and assigns, forever.
I also give and bequeath to my said wife Elizabeth Miller Turner, all; the household furniture, tools, implements, harnesses and carriages of which I shall be possessed.
When my said infant son-Isaac shall become twenty-one years of age, I give and bequeath to him the sum of two thousand dollars, and direct my executor to then pay him said sum of two thousand dollars.
I also give and bequeath to my wife Elizabeth Miller Turner, the use-of the sum of five thousand dollars from the time when my said son Isaac shall become twenty-one years of age until her death, the said sum of five thousand dollars to be invested by my executor, under her direction, with the restrictions of the probate court as to its safety, as hereinbeforeprovided in regard to the seven thousand dollars, and at her death said five thousand dollars to revert to my estate.
In case of the death of my said wife Elizabeth before my said son-Isaac shall become of age, that is to say, twenty-one years of age, then-
And I further direct and declare, that the legacies hereinbefore ■described and named, shall be received by said Elizabeth in lieu of all dower in my estate, and that said legacies to said Isaac shall be received in lieu of all claims to heirship of any of my property, except to the amount of his share in the five thousand dollars which said Elizabeth Miller Turner is to have the use of from the time of said Isaac becoming of the age of twenty-one years, until her death; and he is to have said interest in five thousand dollars, with the rest of my heirs, even if said Elizabeth shall die before the said Isaac becomes twenty-one years of age.
And lastly, I hereby make, appoint, declare and constitute my said wife Elizabeth Miller Turner and Alfred S. Richards and Andrew J. Reeves, all of the city of Grand Rapids, Kent county, Michigan, executors of this my last will and testament, hereby revoking all former wills by me made.
In witness whereof, I have hereunto set my hand and seal the fifth day of June, A. D. 1876.
Isaac Turner, [l. s.]