Kirkpatrick v. Nolan

Michigan Supreme Court

Kirkpatrick v. Nolan

291 N.W. 215, 293 Mich. 42, 1940 Mich. LEXIS 509

CourtMichigan Supreme Court

DecidedApril 1, 1940

DocketDocket No. 88, Calendar No. 40,882.

StatusPublished

Cited by2 cases

This text of 291 N.W. 215 (Kirkpatrick v. Nolan) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirkpatrick v. Nolan, 291 N.W. 215, 293 Mich. 42, 1940 Mich. LEXIS 509 (Mich. 1940).

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Opinion

Bushnell, C. J.

Appellant is the second wife of deceased, who left surviving children by his first marriage, there being no issue of the second marriage. She appeals from an amended order of the circuit court of Wayne county, based upon 3 Comp. Laws 1929, §§ 15564, 15726 (Stat. Ann. §§ 27.2664, *43 27.2891), which have to do with the share of the personalty in a testate estate which passes to a widow who elects to take against her husband’s will. This order provides that the widow shall receive, under her election, the residue of her deceased husband’s testate personalty as follows:

“One-third (Y) part thereof until the same shall amount to $5,000, by virtue of her aforesaid election in accordance with the statute in such case made and provided, and to Myrtice M. Nolan, legatee, a two-thirds (Y) part thereof in said personal property until the sum shall amount to $10,000, in accordance with the provisions of the will. And that any residue in personal property in excess of $15,000 be assigned to Doris B. Kirkpatrick, widow of said deceased, a one-sixth (Ve) part thereof, and to Myrtice M. Nolan, five-sixths (B/o) parts thereof. * *

Appellant urges that, because “the Supreme Court of the United States, of its own initiative and without petition or argument on the point by the parties litigant, disapproved a 96-year old doctrine that had been previously invoked, approved, and followed by that court and lower courts since its decision of Swift v. Tyson, 16 Pet. (41 U. S.) 1, in 1842,” we should, on the strength of the reasoning in Erie Railroad Co. v. Tompkins, 304 U. S. 64 (58 Sup. Ct. 817, 114 A. L. R. 1487 [1938]), set aside this order.

The order entered is in accordance with the well-established lawk stated in Phillips v. Phillips, 91 Mich. 433 (1892). See, also, In re Estate of Pulling, 93 Mich. 274. The amended order is affirmed, with costs to appellee.

Sharpe, Potter, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

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Bushnell, C. J.

Appellant is the second wife of deceased, who left surviving children by his first marriage, there being no issue of the second marriage. She appeals from an amended order of the circuit court of Wayne county, based upon 3 Comp. Laws 1929, §§ 15564, 15726 (Stat. Ann. §§ 27.2664, *43 27.2891), which have to do with the share of the personalty in a testate estate which passes to a widow who elects to take against her husband’s will. This order provides that the widow shall receive, under her election, the residue of her deceased husband’s testate personalty as follows:

“One-third (Y) part thereof until the same shall amount to $5,000, by virtue of her aforesaid election in accordance with the statute in such case made and provided, and to Myrtice M. Nolan, legatee, a two-thirds (Y) part thereof in said personal property until the sum shall amount to $10,000, in accordance with the provisions of the will. And that any residue in personal property in excess of $15,000 be assigned to Doris B. Kirkpatrick, widow of said deceased, a one-sixth (Ve) part thereof, and to Myrtice M. Nolan, five-sixths (B/o) parts thereof. * *

Appellant urges that, because “the Supreme Court of the United States, of its own initiative and without petition or argument on the point by the parties litigant, disapproved a 96-year old doctrine that had been previously invoked, approved, and followed by that court and lower courts since its decision of Swift v. Tyson, 16 Pet. (41 U. S.) 1, in 1842,” we should, on the strength of the reasoning in Erie Railroad Co. v. Tompkins, 304 U. S. 64 (58 Sup. Ct. 817, 114 A. L. R. 1487 [1938]), set aside this order.

The order entered is in accordance with the well-established lawk stated in Phillips v. Phillips, 91 Mich. 433 (1892). See, also, In re Estate of Pulling, 93 Mich. 274. The amended order is affirmed, with costs to appellee.

Sharpe, Potter, Chandler, North, McAllister, Wiest, and Butzel, JJ., concurred.

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291 N.W. 215, 293 Mich. 42, 1940 Mich. LEXIS 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkpatrick-v-nolan-mich-1940.

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