146 Mich. 181 | Mich. | 1906
The appellee, Marshall L. Stringer, administrator de bonis non of the estate of' Fanny Stevens, presented a claim against the estate of Thomas Stevens to recover the sum of money bequeathed to said Fanny Stevens by her husband, Willis Stevens. Willis Stevens died'testate June 7, 1887, and by the second paragraph of his will made the following provision for his wife:
“Second. I give, devise and bequeath to my beloved son Thomas Stephens, the following described real estate to wit: [giving description] in Milford, Oakland county, State of Michigan, to him, his heirs and assigns forever, together with all the personal property left by me upon said farm, upon this express condition, that he furnish my beloved wife, Fanny Stevens, all her necessary fire-wood, prepared for the stove, together with all such products of said farm, including flour, meats, fruits, vegetables, butter and eggs that she shall require for her comfortable support, all to be delivered to her home in Milford, together with the sum of one hundred dollars in money yearly, so long as she may live, all the above to be and remain a lien upon said described farm, as long as my said wife shall live.”
This claim was for the money provided by this clause. The delivery of the produce was conceded. Thomas Stevens, the son, took possession of the land so devised to him under the conditions expressed, and continued to occupy them during his lifetime. Fanny Stevens continued to live at the home in Milford, and died there February 28, 1897, intestate. Her daughter, Mary J. Crippen, was appointed administratrix in May, 1897. On January 16, 1899, her final account was filed, and the estate on hand was distributed among the heirs. Thomas Stevens received his share. Thomas Stevens died intestate April 9, 1903. The appellee in the case at bar was appointed administrator de bonis non of the estate of Fanny Stevens, deceased, August 3, 1903, and as such filed this claim against the estate of Thomas Stevens, deceased. A judgment was rendered upon a verdict directed by the court in favor of said Marshall L. Stringer, administrator, in the circuit' court for Oakland county,
Appellant contends:
1. That this entire claim is barred by the statute of limitations.
2. That if the statute of limitations is not a bar, claimant plaintiff was not entitled to interest upon the annual payments, and the verdict is excessive, and should have been for $900.
We must determine from the context of that part of the will under consideration the conditions of the devise and bequest accepted by Thomas Stevens. Provision is made for the comfortable support and maintenance of the widow during her natural life by furnishing fuel for household purposes, food to eat, and money annually. The evident intent of the testator was to make certain, by specific statement, the character and extent of the provision made for the widow, and to secure the performance of that expressed intention by making all the above provision a charge upon the premises devised. It is admitted that, where the devisee accepts property charged with the payment of an annuity, he becomes liable for the payment of such annuity, and an action can be maintained for the same. 2 Am. & Eng. Enc. Law (2d Ed.), p. 399; Gridley v. Gridley, 24 N. Y. 130; Fuller v. McEwen, 17 Ohio St. 288.
In this case it is not sought to enforce the lien against the land, but the claim is. presented against the estate of the devisee as a personal obligation against him. Therefore it is not necessary to determine or discuss the question as to the extent to which the property made a security for this annuity was chargeable with it, and construe the last clause of this paragraph of the will, “all the above to be and remain a lien upon said described farm as long as my said wife shall live.” The authorities
Although the annuity granted may be said to have been in lieu of dower, and was made a charge upon the real estate devised, the representative of the estate of the widow in this case is proceeding -upon the theory that this is a personal demand against the estate of the son, arising. upon an implied contract, and makes claim for it as such, not against a fund arising from a sale, but against the body of the estate. The authorities recognize a distinction between an action founded upon and created by a will or other specialty and one which, although incident to a specialty, yet rests upon an express or implied promise. In the former instance the statute invoked does not apply, while in the latter it does. Wood on Limitations (3d Ed.), § 35, and notes.
The many cases cited and relied upon by claimant in support of the contention that this statute of limitations does not apply are cases brought to enforce the charge upon the real estate devised or granted, or against a fund arising from a sale of land, or where an express trust has been created, or upon a specialty, or by some proceeding other than an action upon an implied promise to pay. Attention is again directed to the fact that this claim is based upon the implied promise of Thomas Stevens, and therefore is distinguishable from the cases relied upon by claimant.
We think the case at bar may be said to be analogous
While it is true that the widow during her lifetime did not waive her lien upon the land charged with her annuity, yet she might have done so, and brought suit in assumpsit against her son, upon his implied promise, for each installment as it fell due, if not paid. Therefore her representative, beginning such suit upon the implied promise, and not claiming anything by reason of the lien, cannot claim any greater rights than his decedent would have had in a like proceeding.
We must conclude that the statute of limitations must be applied as in the case of an ordinary action upon an implied contract. The form of action, and not the cause of action, must determine whether the claimant’s action is barred. Christy v. Farlin, 49 Mich. 319; Stewart v. Sprague, 71 Mich. 50; Avery v. Miller, 81 Mich. 85. To determine whether the claim, or any part of it, is barred by the statute, it is necessary to compute the time which has elapsed since the right of action arose. The testator, Willis Stevens, died June 7, 1887. The first annual payment of money was due his widow June 7, 1888. A payment became due on June 7th of each year thereafter, to and including June 7, 1896. The widow died February 28, 1897. From the time of her death the running of the statute was suspended until May 31, 1899 —two years after the appointment of her administrator. Section 9737, 3 Comp. Laws; Field v. Loveridge, 114 Mich. 220. From that date the statute would run until
It is urged that interest on this claim should not have been allowed. The authorities are in conflict upon the question of the allowance of interest upon arrearages of annuities. Where the annuity has been for the support and maintenance of a wife or child, interest has usually been allowed. The weight of the English authorities holds to this effect. Newman v. Anting, 3 Atk. 579; Litton v. Litton, 1 P. Wms. 541. In general, it may be said that in other cases interest is not allowed. In the United States the cases where interest has been allowed are all cases of the kind referred to, where the annuity was for support of widow.or child and a lien upon the land devised. Some of these cases hold that the allowance of interest for arrearages of an annuity is discretionary where it is for the support of widow. Beeson v. Elliott, 1 Del. Ch. 368; Addams v. Heffernan, 9 Watts (Pa.), 529.
The entire amount of the claim is for payments of the amounts provided by the will to be annually made to Fanny Stevens, together with interest thereon. Upon these unpaid installments she during her lifetime should have been allowed interest, and we know of no reason why the claim should cease to bear interest upon her
It is insisted that the assignment of error is not sufficiently specific, and does not comply with the rule. There were but two questions in the case, both of which were presented fully to the court below. These were, that the statute had run against the claim, and no recovery could be had; and that if the claim was allowed it should not bear interest. We think the assignment under the circumstances sufficient.
Our conclusion is that the court was in error in instruct-' ing the jury to find for claimant the entire claim, with interest. The instruction should have been for the amount above specified. The judgment may stand for that amount, with costs to appellant, provided the balance is remitted by claimant; otherwise the judgment is reversed, and a new trial granted.
