Sprague v. Moore, 125 Mich. 357

Sprague v. Moore

125 Mich. 357 | Mich. | 1900

Grant, J,

(after stating the facts). 1. The sole question in suit No. 1 is, Did the trust deed and the declaration of trust revoke the will ? The statute of this State governing the revocation of wills is quoted in full in Lansing v. Haynes, 95 Mich. 18 (54 N. W. 699, 35 Am. St. Rep. 545). We there stated and applied the doctrine of implied revocation. The conveyance of real estate and the transfer by sale or gift of personal property revoke wills devising the same property. The conveyance of all the property devised revokes the will in toto, and conveyance of part of the property revokes the will pro tanto. Chancellor Kent thus states the law upon the subject:

“The doctrine, hard and unreasonable as it appears in some of its excrescences on this subject, and notwithstanding it has been repeatedly assailed by great weight of argument, has nevertheless stood its ground immovably, on the strength of authority, as if it had been one of the essential landmarks of property. The cases have been investigated and discussed with the utmost research and ability by the courts of law and. equity, and the principle again and again recognized and confirmed that, by a conveyance of the estate devised, the will was revoked, because the estate was altered, though the testator took it back by the same instrument, or by a declaration of uses. The revocation is upon the technical ground that the estate has been altered or new modeled since the execution of the will. The rule has been carried so far that, if the testator suffered a recovery for the very purpose of confirming the will, it was still a revocation, for there was not a continuance of the same unaltered interest. There is an exception to the rule in the case of mortgages and charges on the estate, which are only a revocation in equity pro tanto, or quoad the special purpose, and they are taken out of the general rule on the fact of being securities only. These doctrines of the English cases have been reviewed in this country, and assumed to be binding, as part of the settled jurisprudence of the land.” 4 Kent, Comm. 530.

*363The same rule is stated in Smith, Prob. Law, 51; 2 Greenl. Ev. § 686; and by other law writers.

In Emery v. Union Society, 79 Me. 334 (9 Atl. 891), decided in 1887, a conveyance of land was held to revoke pro tanto the devises. The court said on page 341:

“In Brydges v. Duchess of Chandos, 2 Ves. Jr. 417, the chancellor declared this to be a principle of the common law not to be shaken in point of authority. It is the rule laid down in all of the elementary works, on wills and devises, as well as in the multitude of adjudicated cases.”

We approved the doctrine in Lansing v. Haynes, supra. The rule is too firmly settled to require further citation of authorities. They are cited in the text-books, and we do not deem it important to further refer to them. Applying the rule to this case, but one conclusion is possible. The testatrix expressly Conveyed to the trustee the absolute title in fee to all her real estate, and also the absolute title to all her personalty, merely retaining a life interest in the homestead. The intent to revoke her will and replace it by the trust deed could not be more clearly shown. Neither had she then, nor at her death did she leave, any other property than that covered by the trust deed. It is evident that the trustee and the cestuis que trustent so understood it; for the trustee took possession of the little personal property which the mother had bought subsequently to the trust deed, and the $40 in money, and disposed of them as trust funds, by the acquiescence of the cestuis que trustent. If, however, it be held that she acquired property after the making of the trust de¿d, this would not revive the will, which had been absolutely revoked by the trust deed. Herrington v. Budd, 5 Denio, 321; 29 Am. & Eng. Enc. Law, 308. This case must therefore be affirmed.

2. In case No. 2 it seems to be assumed that the estate of Amelia was a proper party defendant. It is unimportant, therefore, in this suit, to determine the legal status of the interest of Amelia, given to her by the trust deed, after her own and her mother’s death. It is only neces*364sary to say that Amelia’s share, her mother being dead, now goes to the other cestuis que trustent, subject to the rights of her creditors. Creditors are the only others who can have any claim upon her estate, and can interfere to prevent the distribution of the entire estate among the cestuis que trustent. Amelia was an incompetent. Her mother was appointed her guardian by proper proceedings in 1876, and continued as her guardian until her death. She was maintained at the asylum at Kalamazoo, and her expenses for her care and maintenance have been paid. No one for 8 years asked for administration upon her estate. Under the circumstances, it would be well-nigh absurd to hold that administration was necessary for the benefit of creditors. Creditors do not wait 8 years without taking any steps to enforce their claims against the estate of their deceased debtor. But, upon the assumption that her estate is a proper party, was her brother Thomas a proper party to put the court in motion? He was not only beneficially interested in the estate of his sister Amelia, but was one of the next of kin at the time of the application for letters of administration. The mother, while living, would, under the statute, have been entitled to letters of administration, had she proceeded seasonably; but she neglected, not only for 30 days, but for 8 years, to apply. The statute does not say that, where the mother has died before applying for letters of administration, such application must be made by, and letters issued to, her administrator. The statute applies to the situation at the time letters of administration are granted, and not to the situation at the time of the death of the deceased. Schouler, Ex’rs & Adm’rs, § 97; Carthey v. Webb, 6 N. C. 268; Griffith v. Coleman, 61 Md. 250; Myers v. Cann, 95 Ga. 383 (22 S. E. 611); In re Woods’ Estate, 97 Cal. 428 (32 Pac. 516); In re McLaughlin’s Estate, 103 Cal. 429 (37 Pac. 410).

Another fatal objection to the appellant’s contention is that the widow waived her right to letters of administration by a failure to apply therefor for more than 30 days *365after Amelia’s death. She, if living, would not he in position to question the jurisdiction of the court, as she had waived her right under the statute by failure to proceed ; neither could the administrator of her estate, because it is already shown that the law does not give to such a person the right of administration which it gave to his intestate. The probate court obtained jurisdiction by the petition of one who was beneficially interested in the estate. No creditor appears, contesting his right under the statute; neither is it shown or pretended that there are any creditors. In such case the probate court may appoint a suitable person administrator, and that appointment is binding upon all parties. Atkinson v. Hasty, 21 Neb. 663 (33 N. W. 206); Garrison v. Cox, 95 N. C. 353; Johnson v. Johnson, 15 R. I. 109 (23 Atl. 106). Also, see Wilkinson v. Conaty, 65 Mich. 614 (32 N. W. 841). In some instances the express words of the statute have been disregarded in order to give the management of the property to those beneficially interested. Johnson v. Johnson, supra, and authorities there cited. The evident purpose of this statute is to place the administration in the hands of some one beneficially interested. If the widow has assigned and sold all interest in her husband’s estate prior to the petition for the appointment of an administrator, she would not be entitled, as a matter of law, to such appointment. The statute means the widow who has an interest in the estate of the deceased, and not the widow who has parted with her entire interest. The order of the probate court appointing an administrator is therefore affirmed.

3. Is the estate of Adeline L. Sprague a necessary party to the bill for an accounting ? My brethren are of the opinion that it is, and I yield my own views in the matter to theirs. This case will therefore be reversed, and remanded for further proceedings.

We suggested upon the argument that there was little excuse for this litigation. More than a year and a half has expired since the death of Mrs. Sprague, and nothing *366has been done except the filing of this bill, more than a year ago. It was a case for prompt action, in order that the beneficiaries might receive what their mother had left them. Had the proper harmony existed among the beneficiaries and the trustee, settlement could have been effected long since. The law upon the revocation of wills is so well established that we think there was no occasion for presenting the will for probate. We also think there was little occasion for contesting the appointment of an administrator upon the estate of Amelia upon the technical grounds relied on. If it be true, as stated by counsel for the trustee upon the argument, that she offered, through her counsel, to bear the entire expense of the administration upon the estate of Adeline L. Sprague, and to consent to the appointment of a special administrator to represent that estate in the accounting, we see no reason why the offer should not have been accepted, and thus have avoided litigation. Such a course could have harmed no one, even if her estate was not a necessary party. Under the circumstances, we allow costs to neither party.

The other Justices concurred.