Black v. Detroit Trust Co.

165 N.W.2d 519, 14 Mich. App. 321, 1968 Mich. App. LEXIS 917

• Court: Michigan Court of Appeals
• Decided: November 27, 1968
• Docket: Docket No. 4,476
• Status: Published

Opinion

Per Curiam.

Tbe following opinion was rendered by tbe trial court:

“Petitioner is tbe grandson of George W. Brink, deceased, and asks for tbe construction of decedent’s will. Petitioner prays tbe court to construe that will to mean tbe petitioner not only is entitled to tbe $10,000 specifically bequeathed to him but is also tbe life-time beneficiary of tbe trust estate. Tbe trust III provides as follows:

“(1) Tbe entire net income from tbe trust to wife, for her lifetime, of not less than $500.00 per month, with right of trustee to invade tbe principal to assure such monthly payments.

“(2) Upon death, of wife * * * the trust which has been set aside for my wife, or the residue thereof, shall be held by trustee * * * and the following directions shall govern the use, payment and distribution of such trust:

“2-(l) ‘Ten Thousand Dollars ($10,000.00) of the trust property and estate shall be set up in a trust for the support, education and benefit of my grandson, Ronny Black,' to be disbursed by said trustee as at its discretion will be most beneficial to carry out this trust for Ronny Black, and if said fund, at the time my grandson, Ronny Black, attains the age of 21 years, is in an amount of over $5000.00, he shall be paid the income therefrom until he attains the age of 25, and at age of 25, the entire amount is to be paid over to him, and if said amount of this trust is under $5000.00 at the time he arrives at the age of 21, the balance is to be turned over to him on his 21st birthday, and’.

“Petitioner relies, in part, upon III (1) and (2), as well as (3), which provides:

“ ‘If, in the opinion of' the trustee, the income herein provided together with receipts from other sources, shall not be sufficient to suitably support and maintain my wife, and after her death, suitably to support and maintain my grandson, Ronny Black, or in the case of- any emergency befalling him, such as illness, accident or extraordinary financial distress,- then the trustee is authorized to use and expend such part of the principal of the trust estate as it may deem necessary to make up such deficiency or meet such emergency.’

“Petitioner was approximately seven years of age on November 16, 1949, the date of decedent’s will. He argues that a different situation prevails after the widow’s death, since the will clearly provides for his support and maintenance with the right to invade principal in the case of illness, accident or emergency or extraordinary financial distress. It is reasoned that the testator intended to take care of the widow first and after her death, take care of the grandson. However, that intention is contradicted by III(2) and (5) which terminates the trust upon the death of the widow. It is reasoned that the provision for Bonny comes after the provision for termination of the trust, with the later provision III(5) providing for termination of the trust and delivery to the beneficiary, so that this later provision modifies the former. Finally, it is said that that construction is favored which will make a distribution conform to the general rule of inheritance, a direct descendant being favored.

“There is considerable history here. This will was allowed probate and distribution as modified by settlement agreements with Geraldine Black, the mother of Bonny Black, James B. Brink, Jr., and Herbert Lorenz, grandsons of deceased.

“Geraldine Black and her sister, Kathleen Cook, objected to the father’s will, resulting in settlement under the Bodge Act, and the grandsons filed objections and delayed appeal, resulting in the same kind of a settlement, the settlement agreements being dated February, 1959, and May, 1960. The settlement agreement was signed by Geraldine Black as natural guardian of her son, Bonny Black, petitioner and appellant.

“The general plan of the trust instrument is clear. First, decedent provided for the payment of his debts, his burial, administration expenses and estate taxes. Then, under II there was a bequest of furniture, personal effects and the automobile to the wife, if she survived; if not, to the trustee to become part of the trust estate. The decedent intended, it is clear, that the residue of his estate was to be free of debts and taxes. He also took care of the disposition of personal items.

“His especial solicitude was for his wife during her lifetime, with resultant disposition of the residue under the trust III. It is fundamentally a simple instrument with the evident controlling consideration being ample provision for tbe wife. The trust does, in 2-(l) make provision for petitioner here in the language noted supra.

“If this Court were to accept petitioner’s theory, it would be re-writing the will and would be interpreting that will to mean that after the death of the wife, the entire trust estate was intended to be used for the support and maintenance of petitioner, specifically, that he have support and maintenance for his lifetime and eventually the balance of the trust estate in absolute. This is not what the testator intended; he intended that petitioner be given $10,000.00 in trust for his support, education and benefit, to be disbursed by the trustee as at its discretion would be most beneficial to carry out the trust. The maximum that petitioner was to enjoy was $10,000.00. Had testator intended otherwise, appropriate language could have been chosen without difficulty.

“Furthermore, after the bequest to Ronny, specific bequests were made to the Red Arrow Post, the American Legion in Detroit; to daughter Kathleen Cook; to daughter Geraldine Black, with the balance over to the Detroit Community Trust.

“The testator having chosen to make a plan for the disposition of his estate in clear and unambiguous language, this Court may not now construe it in such a way as to re-write his will. See Tonnelier v. Westin (1942), 302 Mich 213 and In re Jones Estate (1959), 358 Mich 85.

“We hold with appellee.”

After a motion for new trial was filed and heard, the court filed a second opinion adopting the original opinion and additionally stated:

“The testator clearly placed a maximum of $10,000.00 out of his estate in trust for grandson Ronny Black, specifically providing that if the trust amount was under $5,000.00, the balance of the amount was to be paid Ronny on his 21st birthday and that in any event the whole was to he paid at age 25. The figure of $10,000.00 is used once and the figure of $5,000.00 is used twice and the age of Bonny at 21 and 25 years is used twice; the ages are used with specific reference to whether the fund was under or over $5,000.00. With such particular and unambiguous language, it is clear that the intention of the testator was to provide a maximum of $10,000.00 and $5,000.00 at ages 21 and 25 years and negates any intention on the part of the testator to support and maintain Bonny after his 25th birthday or in excess of the amount of $10,000.00.

“Finally, if the testator had wanted to leave the balance of his trust estate after the death of his wife to grandson Bonny, he would not have continued his evident plan of disposition of his estate and trust in the remaining paragraphs. We would note, in passing, that the deceased left, as descendants, two daughters and three grandsons, so Bonny was not the only one who was a natural object of his bounty.

“Fundamentally, as noted in In re Hicks Estate (1956), 345 Mich 448, 454:

“ ‘The evident intent of the testator, as disclosed by the entire will, is controlling, regardless of the contrary results to which we might he led by artificial rules of construction, designed only to aid in ascertaining that intent.’

“Motion for new trial and/or hearing of the issues of the construction of the will is denied.”

A review of the record supports the factual determinations made by the court. We agree that the language of the instrument was unambiguous and does not require construction. We adopt the opinion of the trial court.

Affirmed. Costs to appellee.

Lesinski, C. J., and J. H. G-illis and Beer, JJ., concurred.