This casé involves the construction of provisions of the will of Blanche A. Sewart who died September 3,1950. At the time of her death, and for many years prior thereto, Mrs. Sewart was a resident of St. Clair county, Michigan. The will in question was executed August 4, 1949. Her husband had previously passed away, and she left no ■descendants.
Among other provisions, the will, in the fourth paragraph thereof, set forth 11 legacies, all but 1 being to relatives of testatrix or of her deceased hus
“If any of the above named persons, including the survivor of Anthony Burbot and Margaret Burbot, shall predecease me, the legacy herein provided for such person shall be distributed to such person or persons as by the duly probated will of said deceased person shall be designated to tabe such legacy, or if no such designation be made then to the person or persons designated to tabe the residue of the estate of such deceased person, and in case such deceased person shall have died intestate, the aforesaid legacy shall be distributed to the heirs-at-law of such deceased person in accordance with the laws of intestacy in force at the time of my death.”
By the eighth paragraph of the will testatrix devised and bequeathed any and all property, not otherwise disposed of, to the legatees mentioned in the fourth paragraph, said legatees to tabe proportionately. All of the beneficiaries under the fourth and eighth paragraphs were living at the time of the death of Mrs. Sewart with the exception of Dora Lamont, who was described by testatrix in the will as the sister of her late husband, and who was given a legacy of $4,000 in addition to what she might receive under the residuary clause. Mrs. Lamont died intestate several months prior to the death of Mrs. Sewart. She had for many years been domiciled in the State of Florida. She had no descendants living at her death but was survived by her husband. She also left several nieces and nephews who are the appellants in the instant case.
The question at issue is whether the language above quoted from the will of Mrs. Sewart is to be construed as evidencing an intention that the person or persons entitled to receive the legacies given to Mrs. Lamont, in the event of her death prior to that
Ernest Lamont, the husband of Dora Lamont, died subsequently to the death of testatrix. His estate is represented in the instant proceeding by an administrator duly appointed by the Florida court in probate proceedings. The question as to the extent of the interest of said estate and the interests, if any, of the nephews and nieces of Mrs. Lamont was presented to the probate court of St. Clair county by the executor under the will of Mrs. Sewart in a petition seeking the approval of its final account and a determination as to the disposition of the Lamont legacies. An order was entered by the judge of probate in favor of the administrator. On appeal to the circuit court such order was affirmed. The nephews and nieces of Mrs. Lamont have appealed, asserting that the judgment of the circuit court was erroneous.
It will be noted that Mrs. Sewart made no reference to the statutes of Florida, although it may be assumed that she was aware when she made her will that Mrs. Lamont was living in that State. Furthermore, had it been the intention of testatrix to give to the term “heirs-at-law” the meaning claimed by appellee, she doubtless would have referred to the laws of intestacy in force at the time of the death of any legatee designated in the fourth and eighth paragraphs of her will. This she did not do. Instead of such reference she stated specifically that the distribution of legacies given to a beneficiary predeceasing her, and failing to make designation by will, in the manner indicated by Mrs.
As before noted, the basic question in construing the will is the intention of the testatrix. Such intention is to be determined, if possible, from the language of the instrument. In the instant case we find that such language is reasonably clear and explicit. In passing on controversies of this nature courts have repeatedly recognized that the maker of the will was presumably familiar with the laws of his own State and ordinarily without specific information as to statutes in force in other States. Such situation may not be ignored in the construction of the language of a will.
In Lincoln v. Perry, 149 Mass 368 (
“It has been argued, that the term ‘heirs-at-law’ should be held to mean those who would be the actual heirs of Judith upon her decease, this being deter*498 mined by the place of her residence; and that therefore the determination who should take as her heirs should be made according to the laws of New Hampshire. But the question after all is, What is the meaning of the testator’s words? and we are brought to the conclusion that the true meaning is, to designate a set of persons who were to take the estate upon Judith’s death, and that those persons are styled her heirs-at-law. This set of persons would ifot fluctuate with any changes of residence that she might make. The testator would probably not be familiar with the laws of different States. He lived here, his will was drawn here by a Massachusetts lawyer, and it was executed here. The laws of Massachusetts are those with which presumably he would be best acquainted. The fact that he formerly lived in New Hampshire is immaterial. It is not disclosed how long he had lived in Massachusetts, nor is it necessary to go into an inquiry upon that subject. Under the circumstances stated, we must read his will as the will of a person settled and established in Massachusetts. In speaking of heirs-at-law, he probably meant those who would be heirs-at-law here.”
This decision has been cited with approval in later Massachusetts cases.
In Radford v. Fidelity & Columbia Trust Company, 185 Ky 453 (
“It is contended, by appellants, that in ascertaining the intentions and meaning of the testatrix, as expressed in the instrument, and in construing it, in order to determine the rights of the parties under the will, we must be guided by the laws upon those subjects, which prevailed in the State of Indiana, at.*499 the time of the execution of the will. This contention seems to be sound, as in accordance with the general rule of interpreting and ascertaining the meaning and intentions of a testator, as expressed in his will, reference must be had to the law of his domicile, at the time, the will was executed, and snch law will govern, unless it appears, from the will, that the testator had in mind and made his will with reference to the law prevailing in some other country or jurisdiction. By the same rule, if the property, in controversy, is personal property, the rights of the parties under the will are determined by the laws prevailing in the jurisdiction of the testator’s domicile, at the time of his death. (Citing cases.) There is nothing in the will of the testatrix to indicate, that in making her will, she had in contemplation, the laws prevailing in Kentucky.”
In Houghton v. Hughes, 108 Me 233 (79 A 909, Ann Cas 1913A, 1287), the court quoted with approval from Lincoln v. Perry, supra, holding (pp 235, 236) that as a general rule “a will is to be interpreted according to the laws of the country or State of the domicile of the testator, since he is supposed to have been conversant with those laws.” The court also quoted with approval from Harrison v. Nixon, 9 Pet (34 US) 483 (9 L ed 201), in which Justice Story, in discussing the meaning of the words “heir-at-law,” said (pp 503, 504):
“ ‘The language of wills is not of universal interpretation, having the same precise import in all countries and under all circumstances. They are supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a conclusion.’ ”
A decision of the supreme court of Kansas in Keith v. Eaton, 58 Kan 732 (
“In the absence of a contrary meaning, to be gathered from the circumstances surrounding a testator or from the instrument as a whole, the sense of the words used by him is to be ascertained in the light of the law of his domicile. Presumptively, he is more familiar with that law than with the law of other jurisdictions. That is the law which is constantly with him, controlling his actions and defining his rights, and more naturally than any other law would be present to his mind in the drafting of an instrument dispository of his property.
“G-reenleaf, in his work on Evidence (Yol 2, 16th ed, §671, pp 615, 616), says:
“ ‘In the interpretation of wills, whether of movable or immovable property, where the object is merely to ascertain the meaning and intent of the testator, if the will is made at the place of his domicile, the general rule of common law is that it is to be interpreted by the law of that place at the time when the will was made. Thus, for example, if the question be, whether the terms of a foreign will include the “real estate” of the testator, or what he intended to give under those words; or whether he intended that the legatee would take an estate in fee or for life only; or who are the proper persons to take under the words “heirs-at-law” or other designatio per*501 sonant,m, recourse is to be had to the law of the place where the will was made and the testator domiciled.’
“To the same effect are Story on Conflict of Laws (8th ed), §479h, p 671; 3 Am & Eng Eneyc of Law, pp 637-641; Guerard v. Guerard, 73 Gra 506; Ford v. Ford, 70 Wis 19 (33 NW 188 , 5 Am St Rep 117); Lincoln v. Perry, 149 Mass 368 (21 NE 671 , 4 LRA 215).”
Of like import is Rose v. Rambo, 120 Miss 305 (82 S 149).
While the factual situations involved in.the cases cited are not identical with that presented in the case at bar, we think the general principle recognized is applicable here. It may be assumed that Mrs. Sewart, having been a resident of Michigan for many years, was familiar with the laws of this State. There is nothing to indicate that she was advised with reference to the statutes of other States in which her beneficiaries might be living at the time she made her will. There is nothing in the instrument tending in any way to contradict the inference that in using the expression “heirs-at-law” she had in mind the Michigan statutes. Furthermore, the express reference to the laws of intestacy in force at the time of her own death suggests that she had in mind the Michigan statutes rather than those of any other State or States. The rule of interpretation recognized in the decisions above cited is in accord with the great weight of authority and is consistent with the holding of this Court in Ford v. Ford,
On the trial of the ease in circuit court counsel representing the administrator of the estate of Ernest
Counsel also offered to prove by the oral testimony of a witness that while Mrs. Sewart was quite fond of one of the nieces and one of the nephews of Mrs. Lamont, said persons being appellants here, she did not like the other nephew and was not acquainted with appellant Margaret Sewart Mosure or with Mabel Sewart. This offer apparently rested on the theory that it tended to show that Mrs. Sewart wanted the legacies to go, in the event that Mrs. Lamont predeceased her and made no designation by will as to the recipient or recipients, to Ernest Lamont rather than to the blood relatives of Mrs. Lamont and Mr. Sewart. This testimony was also excluded, on objection.
Claiming that these rulings of the trial court in excluding the proofs offered were erroneous, the administrator of Mr. Lamont’s estate filed a cross appeal and now asks that, if the judgment entered in the circuit court is reversed, the cause be sent back to that court for a new trial on the theory that the refusal to receive the proofs in question was erroneous and sufficiently prejudicial to require a retrial of the controversy.
The offered testimony as to Mrs. Sewart’s attitude towards the nieces and nephews of her deceased husband is subject to similar comment. The fact that she had not personally met 2 of the nieces, and perhaps disliked 1 of the nephews, is offset, as a matter
Had the evidence excluded by the trial court been received, it would have been insufficient to overcome the proofs as to Mrs. Sewart’s actual intention, supplied by the language of the instrument, the general purposes evidenced thereby, and the failure to indicate in any way that testatrix had in mind the statutes of descent and distribution other than those of Michigan that might be in force and effect at the time of her own death. The offered proofs, if received and considered, could not be given the effect of changing the result. We find no prejudicial error requii’ing the granting of a new trial.
The judgment of the trial court is reversed, and the cause is remanded with directions that it be returned to the probate court for further proceedings in accordance with this opinion and for the determination of such other questions as may be involved. Appellants may have costs.
Notes
See Florida Statutes (1953) and Florida Stat Ann § 731.23.
See CL 1948, § 702.93, as amended by PA 1949, No 78 (Stat Ann 1949 Cum Supp § 27.3178 [163]). Amendments subsequent to the death of testatrix are not material in this case.