Cattell v. Evans , 301 Mich. 708 ( 1942 )

Plaintiffs, as residuary legatees and devisees, are entitled to the residue of the estate. The intent of the testator, gleaned from the entire will as a whole, must prevail. The only question here is, did Evans intend the entire residue of his estate to go to the three beneficiaries designated in the residue clause whose names were not eliminated, or did he intend that four-sevenths of the residue should go to members of his family. He did not overlook his blood relations — he left a specific legacy of $35 to Earl, and the same to Meta. Thereafter, he disposed of the residue of his estate and plainly intended to shut the door against further participation by members of his family by the concluding paragraph of his will:

"Fifth: 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."

Earl and Meta were the "immediate members" of his family receiving "the two legacies above provided for," and there can be no question but that the testator intended they have no further participation in his estate. After giving $35 each to Ear] and Meta, he intended to dispose of the entire residue by paragraph four. In it he declared:

"All the rest, residue and remainder of my estate, whether real or personal, wheresoever located and situated, I give, devise and bequeath unto * * * [certain named beneficiaries, plaintiffs herein]."

"The presumption is that a testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof, and the will should be so construed, unless the presumption is clearly rebutted by the provisions of the will or by the evidence to the contrary." In re Ives' Estate, 182 Mich. 699.

Originally, he designated seven residuary legatees and devisees by name. Before the will was executed, or at least before it was admitted to probate as the will of Lester E. Evans, he struck out three names. A fourth (his subsequent wife) is eliminated by an antenuptial contract or by operation of law. This left three persons designated by name, to whom he left "all the rest, residue and remainder" of his estate. Originally, he had provided that each of his residuary beneficiaries should take "an equal undivided one-seventh share." Had the testator not overlooked changing this to "one-third," no doubt could be urged as to his intent. The failure to change "one-seventh" to "one-third" was a mere inadvertence, not a deliberate intent to leave the major part of his estate as intestate property. In the face of definite expressions of his intent in other parts of the will, the failure to make this change does not establish any intent to leave part of his property undisposed of, or that part of his estate should go to Earl and Meta. He definitely excluded them from participation by a subsequent clause in the will. If there is any inconsistency between it and previous clauses, the last expression must prevail. In Foster v.Stevens, 146 Mich. 131, 139, we held:

"It is a well-established rule of construction that, if two clauses in a will are absolutely irreconcilable, the last prevails, as being the latest expression of the testator's wishes."

It is fundamental that the entire will must be given full consideration in determining the intent of the testator. No part is to be ignored, every part must be given effect unless contrary to some positive rule of law, and statutes and rules of law must be considered merely as secondary and not controlling of the intent of the testator where it can reasonably be found in the will. In Foster v. Stevens, supra, at pp. 135, 136, this court said:

"In the construction of a will the first duty of a court is to ascertain the intention of the testator. Such intention is to be ascertained from the whole will interpreted with reference to the obvious or manifest object of the testator. All parts of the instrument must be construed in relation to each other, so as to give meaning and effect to every clause and phrase, and, if possible, form one consistent whole; every word receiving its natural and appropriate meaning. 1 Redfield on Wills (1st Ed.), p. 431 et seq.; Page on Wills (1st Ed.), § 462, and cases cited. Chief Justice Marshall, of this intention, said:

"``The intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail.' Finlay v. King's Lessee, 3 Pet. (28 U.S.) 346 (7 L.Ed. 701)."

In the case at bar, there is no partial intestacy. If there is any occasion to resort to rules of law to determine whether the testator intended to leave the residue to plaintiffs as a class, the case comes squarely within our decision in Re Ives' Estate, supra. In that case, the testatrix left the residue of her estate as follows:

"Fifth. After the payment of the above-named debts and expenses and legacies, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, and wherever situated, to my sister, Hattie Butterfield, and my brothers, Wesley and Dwight Skinner, to each an equal undivided one-third."

The testatrix then added a final clause (as in the case at bar), as follows:

"Sixth. I have not forgotten my adopted daughter, Helen H. Ives, but consider that she is sufficiently provided for already."

One of the three residuary beneficiaries (the sister) predeceased the testatrix. The adopted daughter, Helen H. Ives, claimed that therefore one-third of the residue lapsed and that she was entitled to it as intestate property, as an heir-at-law, relying on the provision in the residuary clause "to each an equal undivided one-third." Reversing the lower court, we held that she was not entitled to share as an heir at law:

"We recognize the general rule contended for by appellee that, where property is given to several persons by name, to be equally divided between them, they take as tenants in common, and not as joint tenants, or as a class. But the authorities hold, we think, that this rule yields to a different construction when it plainly appears from the will that it was the intention of the testator that the survivors should take the whole. We think that this is such a case, and that for the reasons stated the trial court erred in its conclusion in reversing the action of the probate court.

"In our opinion, it is not necessary to go outside of the will and the conceded facts to reach this conclusion."

In Re Hunter's Estate, 212 Mich. 380, the testator left all his property to two sisters, naming them, "share and share alike." In the succeeding paragraph, the testator declared that his half-sister, and all other relatives, were intentionally omitted. One of the two sisters predeceased the testator and her heir at law attempted to obtain a part of the estate as an intestate property. This court denied the claim and held that the surviving sister was entitled to the entire estate. To the same effect, see Rodey v. Stotz, 280 Mich. 90.

In the case at bar, we must take the will as it was admitted to probate. It is apparent that the instrument was changed by the testator during his life-time. He was within his rights in so doing. Parts of a will may be revoked by cancelling or obliterating the same. Act No. 288, chap. 2, § 9, Pub. Acts 1939 (Probate Code) (Comp. Laws Supp. 1940, § 16289-2 [9], Stat. Ann. 1941 Cum. Supp. § 27.3178 [79]).

A conclusion that the testator intended a gift to a class must follow when the intent, gathered from the entire will, is to that effect. In the Ives Case, we held that it was the intent of the testatrix to give the residue of her estate to a class, her brothers and sister. She intended that a certain class of family relatives should take. In the case at bar, the testator plainly intended that no members of his family should take anything of the residue. The testator definitely excluded all members of his family from participation in the residue. The "immediate members" of his family were excluded as a class. The defendants herein are excluded from participation in the residue of his estate. This reasoning excludes Eugene Evans, brother of the testator, as well as Earl and Meta. No claim is made on behalf of Lucy Keyes, later the wife of the testator, who predeceased him. Plaintiffs (appellants) are the residuary legatees and devisees under this will and are entitled to the residue of the estate.

The decree should be set aside and one should be entered to that effect, with costs to appellants.

NORTH and STARR, JJ., concurred with BOYLES, J. WIEST, J., did not sit.