Cummins v. George

120 Mich. App. 539
CourtMichigan Court of Appeals
DecidedOctober 18, 1982
DocketDocket No. 59006
StatusPublished
Cited by1 cases

This text of 120 Mich. App. 539 (Cummins v. George) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummins v. George, 120 Mich. App. 539 (Mich. Ct. App. 1982).

Opinion

Mackenzie, J.

This is an appeal from a probate court order for partial distribution of an estate. Robert L. Cole died on November 18, 1978. He left a will dated September 22, 1976, which bequeathed his entire estate to his wife, Margaret L. Cole. The will provided for distribution of the estate to the testator’s children and stepson if Margaret Cole [542]*542failed to survive the testator. Margaret Cole died on February 18, 1978, and Robert L. Cole married Marion Cole, now Marion Cole Cummins, on July 21, 1978.

After a nonjury trial, the probate judge ordered that Marion Cole take half of the share of the estate she would have received had the testator died intestate, less half of the value of certain property derived by Marion Cole from the testator by means other than testate or intestate succession upon his death. Marion Cole’s share was to be computed as a percentage of the gross estate. She was also awarded interest on her share as provided in MCL 600.6013; MSA 27A.6013. Marion Cole appeals by right, while the executor of the estate cross-appeals.

MCL 700.282(1); MSA 27.5282(1) provided:

"If a decedent who was domiciled in this state dies testate leaving a surviving spouse, the fiduciary appointed to represent the estate, before the date for presentment of claims, shall serve notice on the surviving spouse of the spouse’s right to an election as provided by this section and to file with the court an election in writing that the spouse elects 1 of the following:
"(a) That the spouse will abide by the terms of the will.
"(b) That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.”

After being served with the notice required by this subsection, Marion Cole filed an election in writing electing to take the share specified in (l)(b). The election was dated November 5, 1979; [543]*543the subsection was subsequently amended by 1980 PA 326, effective December 17, 1980, to add an additional alternative. This election was hardly surprising, as the will here was executed well before her marriage to the testator and thus made no provision for her. However, MCL 700.126(1); MSA 27.5126(1) provides:

"If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate the omitted spouse would have received if the decedent did not leave a will, unless it appears from the will that the omission was intentional, or unless the testator provided for the spouse by transfers outside the will and the intent that the transfers were in lieu of a testamentary provision is shown by declaration of the testator, by the amount of the transfers, or by other evidence.”

The probate judge held that Marion Cole’s election under MCL 700.282(1); MSA 27.5282(1) waived her right to the remedy afforded by MCL 700.126(1); MSA 27.5126(1). We do not agree. MCL 700.283(1); MSA 27.5283(1) states that a surviving spouse’s failure to make a timely election under MCL 700.282(1); MSA 27.5282(1) leads to a conclusive presumption that the spouse intends to abide by the terms of the will. None of the alternatives which the spouse may elect under MCL 700.282(1); MSA 27.5282(1) include the remedy for the pretermitted spouse contained in MCL 700.126(1); MSA 27.5126(1). If an election under MCL 700.282(1); MSA 27.5282(1) waived the rights of a pretermitted spouse under MCL 700.126(1); MSA 27.5126(1), those rights would necessarily be waived in every case.

The probate judge regarded Marion Cole’s written election as a binding stipulation pursuant to [544]*544GCR 1963, 507.9. However, the language of a stipulation may not be construed to effect the waiver of a right not plainly intended to be relinquished. Whitley v Chrysler Corp, 373 Mich 469, 474; 130 NW2d 26 (1964). Since the stipulation here purported to be an election between the two remedies specified in MCL 700.282(1); MSA 27.5282(1), it was not plainly intended to relinquish the right to a third remedy not mentioned in the section.

On appeal, the executor does not attempt to defend the probate judge’s finding that Marion Cole waived her rights under MCL 700.126(1); MSA 27.5126(1). Instead, the executor argues that, under the facts presented here, the remedy afforded by that section was unavailable. The executor points to testimony by Marion Cole that she and the testator left their wills unchanged intentionally and to testimony by various other witnesses that Marion Cole and the testator told them before and during the marriage that they intended to keep their property separate.

MCL 700.291; MSA 27.5291 allows waiver of the rights of a surviving spouse in an estate by written agreement. No written agreement was executed here; the testimony relied on by the executor at best shows an oral agreement. The right of a pretermitted spouse under MCL 700.126(1); MSA 27.5126(1) to the same share of the estate she would have received if her spouse did not leave a will is subject to two exceptions: (1) if it appears from the will that the omission was intentional, or (2) if (a) the testator provided for the spouse by transfers outside the will and (b) if it is shown that the testator intended such transfers to be in lieu of a testamentary disposition.

Here it does not appear from the will that the [545]*545omission was intentional, although an intentional omission could arguably be inferred from some of the evidence outside the will. It was not disputed that Marion Cole received certain transfers outside the will. She recovered the proceeds of an insurance policy and certain money which the testator had deposited in joint bank accounts before his death. However, the probate judge found as a matter of fact that the testator did not intend such transfers to be in lieu of a testamentary disposition.

This Court does not review appeals from probate court de novo. MCL 600.866; MSA 27A.866. Findings of fact by a probate judge sitting without a jury will not be reversed unless the evidence clearly preponderates in the opposite direction. In re Howarth Estate, 108 Mich App 8, 10; 310 NW2d 255 (1981). We cannot say that the evidence clearly preponderates in the opposite direction from the probate judge’s finding here. In this connection, we note that the executor relies largely on evidence which suggests that the testator did not intend to make any provision whatever for his wife Marion. Such evidence would not support a finding that the transfers outside the will were intended by the testator to be in lieu of a testamentary provision. If the testator intended to make no provision for Marion Cole, then he did not intend the transfers to be such a provision.

The executor also argues that the probate judge erred by computing Marion Cole’s share as a portion of the gross estate. Marion Cole relies upon a provision of the will which specified that the testator’s debts and the expenses of administering his estate were to be paid from the testator’s "residuary estate”. She also relies on certain statutory provisions which explain which assets , of [546]*546a testate estate are to be used for payment of charges against the estate.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Cole Estate
328 N.W.2d 76 (Michigan Court of Appeals, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
120 Mich. App. 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummins-v-george-michctapp-1982.