In re Lamb's Estate

122 Mich. 239

• Court: Michigan Supreme Court
• Decided: December 12, 1899
• Status: Published

Opinion

Grant, C. J. (after stating the facts).

The decision depends upon the construction to be placed upon this clause of the will:

“But in case of the death of any of the above-named legatees previous to the probating or execution of this, my last will and testament, then I desire, will, and bequeath that the share of such deceased brother or sister shall revert to, and become the property of, the children of said deceased legatee.”

Manifestly, the.term “execution” does not apply to the act of signing and publishing her will. It refers to something to be done after her decease. Certain cardinal rules must be kept in mind. The intention of the testator must be determined from the four corners of the instrument: Bailey v. Bailey, 25 Mich. 185, 188; Fraser v. Chene, 2 Mich. 81, 88. Wills must be construed so that the distribution will conform as nearly to the generál rule of inheritance as the language will permit. Rivenett v. Bourquin, 53 Mich. 10, and authorities cited. Words must be given their ordinary significance, and testators must be held to have meant something by the words used, unless the contrary clearly appears. To probate a will is not to execute it. To probate involves only a determination that the will was duly signed and published, and that the testator was competent to make it. It simply establishes the validity of the will. Its execution comes after its probate. The executor has no control over the estate until the probate of the will. The executor is the person appointed to ‘ ‘ carry the will into effect or execution after his decease, and to dispose of his property according to the tenor of the will.” 1 Burrill, Law Diet. 584. Counsel concedes that Mr. Bay took a conditional estate,— the condition being that he live until the proof or probate of the will. This construction would eliminate from the will the words “or execution,” as it would leave them no office to perform. We cannot hold that the testatrix used the word “execution” as synonymous with “probating.” Persons of common intelligence know what it is to probate a will. We think it manifest that the intention was to devise her property to her brothers and sisters, and to their children in case of their death before her will was; executed. The term “execution” was, in our judgment, used with reference to the act of the executor in executing the will by settlement of the estate under the provisions of law for the settlement of estates of deceased persons, and distributing the property to her legatees. At her death 'Mr. Ray received an estate upon the sole condition that he live until the will was executed, and the property ready for distribution. This was the construction placed upon similar language in Scott v. Guernsey, 60 Barb. 163, 175, and Lambert v. Harvey, 100 Ill. 338, and is not in conflict with Calkins v. Smith’s Estate, 41 Mich. 409. The word “or” is often construed to mean “and,” and its use is a common mistake in wills as well as elsewhere. 1 Jarm. Wills (6th Ed.), 505; 2 Burrill, Law Diet. 263.

We think the court reached the correct conclusion. Judgment affirmed, with costs.

The other Justices concurred.