163 Mich. 556 | Mich. | 1910
This claim originated in the probate court of Calhoun county, where the claimant, Carrie Linton, as trustee of the estate of John W. Howard, deceased, filed a claim for the support and maintenance of her mother, Sarah Howard. The claim having been allowed in the probate court, an appeal was taken by Eugene Howard, one of the heirs and legatees under his father’s will, to the circuit court of said county, where the case was tried by a jury and resulted in the recovery by the claimant of the sum of $540.15. The alleged claim is founded upon the provisions of the will of John W. Howard, deceased, who died on the 29th day of January, 1896, leaving a last
The provisions of said will pertinent to this issue are as follows: After providing for the payment of his just debts, last sickness, and funeral expenses, the will proceeds :
“ (2) After which I give and bequeath to each of my ten children, the sum of $50 to be payable as soon as may be after my death, their names being as follows: Martha Launstein of Chesaning, Michigan, George Howard, Concord, Kansas, Harry Howard, Homer, Michigan, Eugene Howard, Washeugle, Washington, Louisa Launstein, Kane, Pa., Jennie C. Loomis, N. Y., Willard Howard, Falkton, Dakota, Carrie Linton, Paw Paw, Michigan, Ella Anderson, Falkton, Dakota, Frank Howard, Falkton, Dakota, but said bequest to my said daughter, Carrie Linton, is to be paid by the delivery to her of the kitchen range or cook stove, now in use in my house, but in case such range or cook stove is not owned by me, at the -date of my death, then $50 shall be paid to said Carrie Linton in lieu thereof.
“ (3) I hereby give and bequeath to my said daughter, Carrie Linton, the use of my real and personal estate, during the lifetime of my wife, Sarah Howard, conditioned upon her caring for, providing a home and supporting in a reasonable manner, paying her last sickness and funeral expenses, according to her condition in life, my said wife, Sarah Howard; and in carrying out said trust (supporting my said wife as aforesaid) said Carrie Linton is authorized and shall have power to use any real and personal property, out of my estate, as shall be found necessary to properly and adequately carry out and perform said trust.
“ (4) To my said wife I give and bequeath the benefits that are to accrue by the performance of said trust by my daughter, Carrie Linton, and it is my intention that any sum derived from the income and use of my estate, over and above what shall be necessary to carry out said trust, during the lifetime of my said wife, shall be and remain the sole property of said Carrie Linton.
“(5) All the rest, residue and remainder of my estate, after the payment of said legacies, and the performance of the conditions of said trust, for the care of my said wife, it is my will, and I hereby, as td any residue or re*559 mainder that shall then remain in my estate, give, devise, and bequeath the same to my said ten children above mentioned, share and share alike as near as may be, or as nearly as the property can be divided.”
After the death of her father, the claimant, as trustee under the will, took possession of the real estate, consisting of one farm of 80 acres inventoried at $1,300, and all of the personal estate left by the testator, which latter was of little value, and proceeded to care for and maintain her mother, in accordance with the provisions of the will, down to the death of the mother, which occurred on the 19th day of October, 1908. For nearly 13 years the claimant cared for and supported her mother in a suitable manner, and paid the taxes on the farm. During the last years of her life the mother was in poor health, requiring much care and considerable medical aid. After the death of the mother, the administrator of the estate, who had not been discharged, made application to the probate court for leave to sell the real estate, for distribution. After the sale had been ordered and made, and after the administrator had asked to have his account allowed, this claim was filed. It is made up of items of expenditures, and the alleged cost or value of the care and nursing of the mother of claimant on the one hand, and the value of the use of the farm on the other hand. Upon the question of fact the controversy was as to the value of the use of the farm during the years claimant had it in possession; and there seemed to be little or no question as to the expenditures for doctor’s bills and other charges.
Upon the trial it was the contention of the appellant, that from the whole will it was clear that the testator intended to give only the use of the estate to the claimant in trust, conditioned upon the care and support of his widow, and that that construction should be placed upon the will, which, if possible, would give force and effect to. every clause therein; and that the words, “the use of,” and, “to use,” should be given their ordinary meaning. It was further contended that the claimant never intended
“ I charge you, as a matter of law, gentlemen, that the intention of the testator, as drawn from the will itself, was, that his widow should be cared for in a reasonable manner; that, so far as it was sufficient, the income of the estate which the testator left should be used to do for his widow, what he himself if living would have done in the way of giving her reasonable care, support, and maintenance. The duty of this disposition of the said property is devolved by the will upon Carrie Linton, one of the testator’s daughters, and the claimant here in this case, who, as you already understand from that portion of the will, was designated as trustee to carry out this trust created by Mr. Howard, and under the legal construction that must be given to this instrument, the will also gave Carrie Linton not only the right to use so much of the estate as was necessary to properly care for her mother, but it enjoined upon her, as a duty, to carry out the trust in properly and adequately caring for and supporting her mother, even to the extent of using the body of the estate, or, if necessary, even to the extent of the whole of the estate as contradistinguished from using only the income derived from the estate left by Mr. Howard; and the trustee, Mrs. Linton, was not bound to keep within the income if the same was insufficient for the purpose of carrying out the trust provided for in the will in a proper manner. If Carrie Linton, the trustee, properly and adequately carried out the trust imposed upon her by the will of her father, in caring for and supporting her mother during her mother’s lifetime, and in doing so it became necessary for Mrs. Linton to perform extra services and*561 expend more money than the income from the farm and the personal property, which the evidence shows she received, then Mrs. Linton is entitled to be reimbursed for all the money she expended in so caring for her mother, and for all the extra time and care which she gave, or which was necessary in order to give her mother the proper care which she did give her, in so far as you find the same shown by the evidence; and also she is entitled to be reimbursed for such amounts as were paid for doctors’ bills, for nursing, if any, and the expenses of sickness and funeral expenses over and above the net income from the farm and the personal property which she admits having received from the hands of the administrator of her father’s estate, as all of these items to which I have called your attention would be valid claims against the estate of John Howard, under the terms of the will from which I have just quoted.”
The appellant brings the case here upon writ of error and assigns error:
(1) That the court erred in permitting claimant to testify to matters equally within the knowledge of John W. Howard and Sarah Howard, both being deceased.
(2) Because the court erred in not directing a verdict for appellant on the motion made by his attorney at the close of claimant’s proofs.
(3) That the court erred in construing the will of John W. Howard, deceased, and in holding that said will gave to claimant as trustee more than the use of the real estate.
(4) The court erred in construing the will of John W. Howard, deceased, and in holding that it passed the whole of the real estate to the claimant, if the same was necessary, to properly support her mother.
(5) Alleged error in treating the case as a suit at law, and in submitting the same to the jury.
In any view of this case, it is not necessary to decide whether the claimant had the power under the will to sell the real estate, in any event. The fact is undisputed that she did not sell it, or attempt to sell it. She cared for it, and paid the taxes assessed thereon, and saved it to the estate. The primary object of the testator, in so far as Sarah Howard was concerned, was, that she should have reasonable care and support, in sickness and in health, “according to her condition in life.” This care and support was committed to the claimant, who was authorized to use the property belonging to the estate for that purpose, “ as shall be found necessary to properly and adequately carry out and perform said trust.” The proper care and support of his widow, and not the creating of a life estate, seems to have been the purpose of the testator. If in carrying out this object and purpose the claimant found it necessary to incur more expense, and pay out more money than she received from the reasonable use and income of the property placed in her possession, then it would seem just that she should be reimbursed out of the said estate to the extent of such excess. That seems to be just what the claimant is seeking here to do, and
So it appears to us that, in any'view of the case, the circuit judge did not err in submitting the question of claimant’s right to recover, and the amount of such recovery to the jury, whether he correctly construed the will or not. If he did not, it was error without prejudice, if they found, as they must have found, that she necessarily expended, and became liable for, “ more money than the income from the farm, and the personal property which the evidence shows she received” were worth. We find no reversible error here.
Even if the case be treated as falling within the provisions of Act No. 253 of the Public Acts of 1899, relating to testamentary trusts, the right to settle the account in the probate court remains, and.section 42 of the act expressly provides for an appeal, in the following language:
*564 “The decree of the probate court upon the settlement of the account of any testamentary trustee, as herein provided, or any other order or decree of the probate court, made pursuant to any provision of this act, may be appealed from in the manner provided by law for appeals from other orders, sentences, decrees, or denials of a judge of probate, and the like proceedings shall be had upon such appeal,” etc.
See Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).
The judgment of the circuit court is affirmed.