84 Mich. 69 | Mich. | 1890
This is a certiorari to review the proceedings of the judge of probate of Tuscola county in granting an order for maintenance to the widow and infant children of Townsend North, deceased. Townsend North departed this life in Tuscola county on June 12, 1889, leaving a last will and testament. He left surviving him his widow and three daughters, named Alma L., Ula, and Lena T. North, issue of that marriage, as well as two children by a former marriage. These last-named’ children are the plaintiffs in error in this writ.
The order complained of- was made April 28, 1890, and,, as stated in the order, was to be in full for all allowances to the widow for the support of herself and children, Alma L., Ula, and Lena T. North, during the progress of the settlement of the estate, and it provided that the real and personal estate given, devised, and bequeathed by said will be charged and be liable for the payment of said allowance in proportion to the amount of the several devises and legacies in said last will and testament. The order concludes as follows:.
“It is further ordered and decreed that the said Frank North and Mary E. Johnson, devisees and legatees under said will, and all other devisees and legatees thereunder, contribute to and pay said allowance in proportion to the*71 amount of their several devises and legacies, which pro-portion is hereby determined to be as follows, viz.: The said Frank North- and Mary E. Johnson, jointly, one-third; and Alma L. North, Ula North, and Lena T. North, jointly, one-third; and the said Celia G-. North, one-third.
“It is further ordered and decreed that the said Frank North and Mary E. Johnson pay to the said Celia GL North the said one-third of the said allowance, viz., three hundred and twelve dollars, within thirty days from the date hereof, and that, in default of such payment, the said Celia G-. North have execution for the collection thereof.”
The decree also provides for execution against the minor children for the collection of like amount.
It appears that the will was duly admitted to probate, and it makes disposition of all of the estate of the.testator by three specific devises:
1. To the wife, all of the personal property except the bank-stock and other items provided for.
2. The bank-stock, being eighty shares of the First National Bank of Yassar, to Frank North and Mary E. Johnson.
3. Stock in the Yassar Woolen-mill Company, consisting of 334 paid-up shares, to the wife and three minor daughters.
The real estate is devised specifically and by descriptions as follows:
1. To the wife and her three daughters.
2. To Frank North and Mary E. Johnson.
The estate was valued and inventoried at the sum of $65,328.11.
On July 15, 1889, an order was made allowing one year to dispose of the estate and pay the debts, and six months to creditors to present their claims. Under an order made, creditors were required to present their claims to the probate court for allowance on or before January 15, 1890, and that claims would be heard on
Schedule 2 of the will makes the provisions for Frank North and Mary E. Johnson, and is as follows:
“ I also desire and devise. and intrust, on certain conditions hereinafter named, do set apart to my son Frank and daughter Mary E. (Mrs. Jas. Johnson) the following real estate and personal property, to wit: The farm in Fremont, being the south-west quarter, and the south one-half of the north-west quarter, of section twenty-two, in town eleven north, of range nine east; the west one-half of the north-east quarter of section twelve, in town eleven north, of range ten east; the south-west quarter of the south-east quarter of section thirty-five, in town twelve north, of range eight east; the north-east quarter of the south-west quarter of section twenty-nine, in town eleven north, of range eight east; also, all unsold or uncontracted-for village lots or lands in Vassar, and eighty shares of stock in the First National Bank of Vassar, Michigan. All the above-described property under Schedule No. 2 is given to my son Frank and daughter Mary E. (Mrs. Jas. Johnson).
“First. In trust to pay all just dues and demands existing against me at the time of my death.
“Second. To pay my grandson Newton E. North, my granddaughters Minnie A. and May A. North, one thousand dollars out of my real estate in Vassar, Juniata, or Dayton, not otherwise disposed of, each being entitled to one-third of the amount named, with the privilege of*73 selecting and agreeing with the trustees as to the pieces and value, or wait for sale and payment of said lands.
“Third. After paying all debts and legacies as above provided, I desire to have the . balance equally divided between my son Frank and daughter Mary E. (Mrs. Jas. Johnson).
“Fourth. And I further desire and direct that the trustees give bonds for the faithful performance of the trust confided in them, and on the execution of such bonds I desire and direct that the administrators do deliver and set over the property named in Schedule No. 2 to the said Frank and Mary E., for the use and purposes above stated.”
It is contended on the part of the plaintiffs in error that the gift to -Frank North and Mary E. Johnson is a specific devise and bequest, and not dependent on any order of distribution or allotment by the probate court; that it is severed from the remainder of the estate for the specific purpose that such devisees and legatees should pay all the debts of the estate existing at the time of the death of the testator, and to pay the legacy of $1,000.
It is quite apparent from the record that at the time the order was made the estate was not closed. The entry of the order by the probate court to that effect did not operate to close the estate. The statute provides for notice to be given to creditors of the time fixed for hearing claims before the order can properly be made closing the allowance of claims. How. Stat. §§ 5889, 5890, 5895. There is no proof, so far as shown by this record, that such notice was given. The matters of the estate were then in such condition that an order for allowance could properly be made under.the provisions of How. Stat. § 5813, which authorizes the probate court to make such reasonable allowance as may be judged necessary by the court for the expenses of the widow and minor children, constituting the family of the testator, during the progress of the settlement of the estate; the only limitation being that it shall not be for a longer period than until their shares in the estate shall be assigned to them. The year for the settlement of the estate had not elapsed when the order .was made.
It was for the probate court to inquire into the truth of the petition. The petition sets out sufficient facts, if true, to warrant the' order, unless, as claimed by the plaintiffs in error, the devises and- legacies to them were specific, and no allowance could be made out of specific devises and legacies. The devises and legacies to Frank
“The estate, real or personal, given by will to any devisees or legatees, shall be held liable to the payment of the debts, . expenses of' administration, and family expenses, in proportion to the amount of the several devises or legacies, except that specific devises and legacies, and the persons to whom they shall be made, may be exempted, if it shall appear to the court necessary in order to carry into effect the intention of the testator, if there shall be other sufficient estate.”
In the present case the whole estate is specifically devised and bequeathed. It therefore became a matter for the probate court to determine, under the facts shown, when the petition for allowance was presented, just what allowance should be made, .and the proportion each part of the estate should contribute to meet the amount necessary to provide for the widow and minor children during the settlement of the estate. We are not called upon to decide whether the probate court fixed the amount which the plaintiffs should pay at too small or too great a sirm. The facts were before that court, and are not present here on this record. We find no error in the making of the order sought to be set aside by this proceeding.
The writ of certioraii must be quashed, with costs to the defendant in error.
The order of the probate court is affirmed.
Counsel cite How. Stat. § 5816; Proctor v. Robinson, 85 Mich. 284; Hays v. Jackson, 6 Mass. 149; Walton v. Walton, 7 Johns. Ch. 258, as supporting this contention.