Cattell v. Evans

4 N.W.2d 67, 301 Mich. 708, 1942 Mich. LEXIS 586

• Court: Michigan Supreme Court
• Decided: May 18, 1942
• Docket: Docket No. 90, Calendar No. 41,878.
• Status: Published

Opinions

Bushnell, J.

This is an appeal from a decree construing the last will and testament of Lester E. Evans, which was executed on December 16, 1929. Evans died on August 27,1940. Evans was divorced in 1924 from his first wife, Alice L. Evans, by whom he had two children, Earl L. Evans and Meta Evans Titus, who are defendants in the instant case. Under the decree of divorce Evans gave his former, wife $9,500 as a property settlement, et cetera, and upon her death in 1933 she left in excess of $8,000, the bulk of which went to her son and daughter.

Evans subsequently married Lucy Keyes. Prior to this marriage the parties executed an ante-nuptial agreement by which Lucy Keyes limited herself to an undivided one-seventh interest in Evans’ estate in the event she survived him. This agreement was executed on the same day as the will. No children were born as a result of this marriage and Lucy Keyes Evans predeceased the testator on November 17, 1939.

In his will Evans made a bequest of $35 to his son, Earl, and the same amount to his daughter, Meta. The will provided that the residue of his estate was to go to seven named persons, including Mrs. Evans, each to “take an equal undivided one-seventh share.” Subsequently Evans erased the name of one of the residuary legatees from his will and drew a line through the names of two others. There is no dispute between the parties as to the lapse of Mrs. Evans’ legacy and the revocation of the legacies to those whose names were erased and stricken from the will. See In re Fox’s Estate, 192 Mich. 699.

The three remaining residuary legatees, Cliff L. Cattell, Elmer Horsfall and Christian L. Loop (plaintiffs herein) take the position that they are entitled as members of a class to the lapsed and revoked legacies to the exclusion of Evans’ son and daughter and any other heirs at law. Defendants, the son and daughter of testator, contend that Evans died intestate so far as the lapsed and revoked legacies are concerned and that they are entitled to this four-sevenths of the residue as his heirs at law. Eugene Evans, a brother of the deceased, filed a cross bill in which he insists that he is entitled to this four-sevenths because the will disinherited the son and daughter of the deceased and he is the sole remaining heir at law.

The trial judge filed a written opinion in which he found that the testator “always intended that none of those residuary legatees should receive but one-seventh of his estate,” and that four-sevenths of the residue passed to Evans’ son and daughter as intestate property. Subsequent to the filing of the cross bill and before the trial, Eugene Evans passed away. His administratrix and plaintiffs appeal from the decree entered conforming to the trial judge’s opinion.

Unless the seven residuary legatees constitute a class, plaintiffs cannot prevail. They cite in support of their contention In re Ives’ Estate, 182 Mich. 699. In the Ives Case the residuary legatees formed a natural class, viz., the brothers and sister of the testatrix.

Plaintiffs in the instant case do not form a natural class in that they possess no common attribute other than that of being legatees. Though this is not conclusive, the absence of a common attribute militates against construing the residue as a class gift. See 69 C. J. p. 240; note in L. R. A. 1918 B, at page 234; annotations in 75 A. L. R., beginning at page 773.

The residuary legatees were specifically designated by name, no words of survivorship were used, and there is no indication on the face of the will that the testator intended to make a class gift. The naming of the residuary legatees and the absence of the survivorship language indicate an intention not to make a class gift. See Wessborg v. Merrill, 195 Mick. 556 (L. R. A. 1918 E, 1074), and notes in 75 A. L. R. beginning at page 783.

After naming the residuary legatees the will provides :

“that each person provided for in this paragraph of my will shall take an equal undivided one-seventh (1/7) share, absolutely and forever.”

This language rebuts any intention to create a class gift. It therefore follows that the lapsed and revoked four-sevenths of the residue must pass as intestate property.

To whom, then, does the lapsed and revoked portion of the residue belong?

The answer depends upon whether testator’s son and daughter were disinherited by the following language of the will:

“I give nothing, except the two legacies above provided for, to the immediate members of my family because in the separation from my wife I paid a large sum which I feel is all they are entitled to out of my estate.”

In LaMere v. Jackson, 288 Mich. 99, comment, 38 Michigan Law Review, 575, it was held that a testator can by a provision in his will preclude an heir from participating in his intestate property. The Jackson will, as shown by the record in that case, reads:

“I give, devise, and bequeath unto William Jackson, my brother, the sum of five dollars, this amount to be in full for any and all bequests I would leave him as a brother or heir. ’ ’

The language in the Evans will does not expressly state that testator’s son and daughter shall not take intestate property as heirs, and such a conclusion is not necessarily implied by the language of the will. The language used by the testator appears to be merely explanatory. At the time the will was executed it is clear the testator intended that all of his property should pass by operation of his will and therefore did not contemplate leaving any intestate property.

The court said in Re Shumway’s Estate, 194 Mich. 245, 256 (L. R. A. 1918 A, 578):

“It is a standard rule that the law favors that construction of a will which conforms most nearly to the general law of inheritance. Murdoch v. Bilderback, 125 Mich. 45, and cases there cited.”

In Southgate v. Karp, 154 Mich. 697, 701, the court said:

“The law is well established that the construction to be given should favor the heir who by another construction would be deprived of an equal share in the distribution of the property.”

The court quoted from the authorities therein cited the following:

“ ‘Heirs at law are not to be disinherited by conjecture, but only by express words or by necessary implication.’ ”

“ ‘It is a maxim which applies here, as well as in England, that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed.’ ”

The language used in the instant will does not expressly or by necessary implication disinherit the son and daughter and they are therefore entitled to the intestate property.

We are urged to hold that the trial judge erred in admitting certain parol evidence' tending to show a change in the testator’s attitude toward his son and daughter. An examination of this testimony discloses that it has little if any probative value, and it does not appear to have influenced the trial judge’s decision. Since the same conclusion should have been reached without this testimony, any error in that regard was harmless.

The decree of the trial court is affirmed, with costs to appellees.

Chandler, C. J., and Butzel and Sharpe, JJ., concurred with Bushnell, J.