Kirsher v. Todd , 195 Mich. 297 ( 1917 )

Brooke, J.

(after stating the facts). It is to be noted that at the time the order for distribution was made, by the terms of which the plaintiff was given an undivided one-half of the Allegan county farm, the defendant had in her possession and of record a quitclaim deed from the plaintiff to her of all plaintiff’s interest in said farm. - Assuming the validity of said deed, the construction given the will in the probate court for the county of St. Clair, whether right or wrong, was of no consequence to defendant. That order of distribution was made on May 12, 1913. Plaintiff was advised of the probating of the estate on April 5, 1913. She filed her bill of complaint on August 28, 1915, upwards of two years after the allowance of the final account of the defendant as executrix of the mother’s estate, her discharge as such executrix, and the making of the order assigning the residue of the estate. Defendant’s right to appeal from the order assigning the residue was lost, apparently through her reliance upon the deed in question. It is assumed by both parties to the controversy now before the court that the will of Eliza Jones must be construed, and it was construed in the court below where it was held that the sale of the 160 acres in Iowa by Eliza Jones in her lifetime revoked paragraph 4 of the will of the said Eliza Jones, and that the land purchased by Eliza Jones in Allegan county was undisposed of by said will, and therefore descended to plaintiff and defendant in equal shares, they being the sole heirs at law of Eliza Jones.

At the outset it is proper to consider the circumstances surrounding the testatrix at the time of the execution of the will and the relations which existed between herself and her two daughters before and subsequent to that time. Aside from recitations and expressions contained in the contract and will, there is abundant testimony in the record to establish the fact that the testatrix, Eliza Jones, had been harassed by her daughter, the plaintiff, and by the husband of her daughter, for several years with litigation over the estate left by Elijah Jones, the father of the parties hereto. By reason of the conduct of the plaintiff toward her mother a complete estrangement followed, but one or two formal calls being made by one or the other up to the time that. Eliza Jones sold her Iowa property and moved to Michigan. She left without paying or receiving a farewell visit from the plaintiff, her daughter in Iowa, and from that time (1906) until her death in 1912 no .communication was had between the two. On the other hand, the relations between the defendant and her mother, Eliza Jones, were always of the friendliest character, and the defendant seems to have given to her mother during the last years of her life, and particularly during her final illness, which was prolonged, that care, love, and sympathy which a dutiful daughter always owes to her mother. That the feeling of bitterness existing between Eliza Jones and her daughter, the plaintiff, continued up to the time of her death is abundantly shown by the record. The will itself was made but a few days after the contract, and was a concession wrung from Eliza Jones by her daughter the plaintiff as the purchase price of peace. In that will the plaintiff secured a greater consideration and more property from her mother than her mother desired to give her.

The primary rule of construction is to ascertain the true intention of the testator. That intention must be ascertained from a consideration of all the provisions of the will itself and in the light of the circumstances surrounding the testator at the time the will was made and his relations with the several objects of his bounty. Having so ascertained his intention, it is the duty of the court to give that intention effect if that be legally possible. This court has so frequently enunciated these principles that a citation of authorities in this State in support thereof is unnecessary.

Coming to a consideration of the will itself, we find the opening paragraph to be as follows:

“I devise, bequeath and dispose of all the property I now have, or may own and possess at the time of my death, in the manner and form as follows, that is to say.”

Paragraph 2 devises to the plaintiff the 80 acres in Iowa which was then and had for many years been occupied by the plaintiff.

Paragraph 3 bequeaths to the plaintiff the sum of $500 to be paid out of such portion of the estate not designated and described in paragraph 2.

Paragraph 4 devises the farm of 160 acres in Iowa then occupied by the testatrix to the, defendant.

Paragraph 5:

“I give and bequeath to my daughter, Cornelia J. Todd, all of the remainder and residue of my personal property at the time of my death, she to have all of my personal property absolutely in her own right, as well as the real estate described in paragraph four (4), subject only to the payment of the five hundred dollars ($500.00) payable to my daughter Eldora A. Kirsher, as set out in paragraph three (3) hereof.”

Paragraph 6 is an unusual and illuminating resume of the reasons which impelled the testatrix to make her will as she did. There she states that her daughter Mrs. Todd has. never had anything from her, but -has always treated her as a daughter should, while her daughter the plaintiff she charges with having had possession and use of the 80 acres devised to her in paragraph 2, and that, aside from that, her said daughter has harassed her with litigation, causing her to incur large expense and -to bear untold annoyance and vexation.

No one can read this will in the light of the contract made a few days before its execution between the testatrix and her daughter the plaintiff and in the light of the evidence contained in this record as to the relations existing between the plaintiff and her mother, up to the time of the death of her mother, without reaching the conclusion that it was the intention of the testatrix to give to the plaintiff from her estate the 80 acres devised to her in paragraph 2 of the will, the $500 bequeathed to her in paragraph 3 of the will and no more. If this manifest intention is thwarted, it must be because some supervening rule of law prevents its accomplishment.

The presumption is always against partial intestacy, and a will, if legally possible, should be construed so as to avoid that effect. In re Ives’ Estate, 182 Mich. 699 (148 N. W. 727), and cases there cited. In the case at bar we are not left to presumption for the testatrix herself undertook by her will to “devise, bequeath, and dispose of all the property I now have or may possess at the time of my death.”

It is the claim of the plaintiff that the sale of the Iowa farm by the testatrix revoked paragraph 4 of the will, and with this contention the learned circuit judge agreed. We have lately in this court considered a case involving, this identical question. Stender v. Stender, 181 Mich. 648 (148 N. W. 255). We there held that a bequest of personal property did not carry with it a sum received by the testator after the execution of the will from the sale of real estate which he had otherwise devised in his will. See, also, Rue v. Connell, 148 N. C. 302 (62 S. E. 306), and Bills v. Putnam, 64 N. H. 554 (15 Atl. 138). Section 4 of the will in terms devises the 160 acres in Iowa to defendant. A portion of the sale price of that farm was paid over to defendant in the lifetime of the testatrix, and a' portion was invested in the Allegan county farm. Nothing can be clearer than that it was the intention of the testatrix that the plaintiff should inherit nothing from the Iowa farm of 160 acres. Should this manifest intention be defeated because the testatrix was in ignorance of the generally applicable rule of law that the sale of a specifically devised piece of real estate works a revocation of such devise? In Stender v. Stender, supra, we refused to permit such an injustice, and in the case at bar will adhere to the rule there announced. The plaintiff is now in a court of equity; she appeals to the conscience of the court to right what she claims to have been a wrong perpetrated upon her; she asserts that the quitclaim deed executed by her was procured by the defendant by fraudulent means and without consideration.

From a careful perusal of the record we are satisfied that the claim of fraud is not made out. ' While the plaintiff claims to have been ignorant of the terms of her mother’s will, she knew the conditions of the contract executed by her mother and herself, and she knew when she received the quitclaim deed from' her sister to her of the 80 acres of land in Iowa and the $500, that she was getting from her mother’s estate the amount which had been provided for in that contract. If the quitclaim deed is permitted to stand and operate as a valid conveyance of the plaintiff’s interest in the Allegan county farm, which was erroneously assigned to her by the order of distribution, the devolution of the estate of Eliza A. Jones will be accomplished in accordance with the terms of her will when properly construed. This course will therefore be followed. A decree will be entered dismissing the bill of complaint, with costs to the appellant.

Kuhn, C. J., and Stone, Bird, Moore, and Steere, JJ., concurred with Brooke, J.