DocketNumber: Docket No. 7
Citation Numbers: 205 Mich. 476
Judges: Bird, Brooke, Kuhn, Moore, Ostrander, Steere, Stone
Filed Date: 4/3/1919
Status: Precedential
Modified Date: 9/8/2022
Cornelius Lyons, a resident of Gene-see county, Michigan, died, testate, in March, 1872. May 6, 1872, his will was admitted to probate. He gave to his wife, in lieu of dower and other rights, for her life, the use of a third of all his real and personal estate, the clause of the will in which this provision is made concluding with the words,—
“and at her death, the same shall go to and belong to my sons, Dennis Lyons and Daniel Lyons.”
The second and third clauses of his will read as follows:
“2nd. I give, devise and bequeath to my said sons, Dennis Lyons and Daniel Lyons all of my real and personal estate in fee simple, subject to the above devise in favor of my wife, and subject to the condition that my other children, Mary, Margaret, Johanna and Julia, Patrick and John Lyons, shall, until they arrive, respectively, at the age of twenty-one years shall be supported and taken care of by my said sons, Dennis and Daniel Lyons; they keeping said family together, and said younger children rendering such assistance about the premises and to the said Dennis and Daniel as may be in their power until they respectively attain the age of twenty-one years, said real and personal estate to be held by said Dennis and Daniel Lyons forever, subject to the conditions above mentioned, and subject to the further condition that said younger children shall be properly cared for and educated.
“3rd. In case of the death of either of my said sons, Dennis or Daniel, without issue, then the estate hereby bequeathed and devised shall go to and be the estate and property of the survivor of them, subject to the conditions aforesaid.”
. The real estate devised was a farm-of 80 acres described as the southwest quarter of the southeast quarter of section 33, town 8 north, range 7 east, and the northwest quarter of the northeast fractional quarter of section 4, town 7 north, of range 7 east. It is to be
“This conveyance being intended to convey the undivided one-half (%) of the above described lands owned by the first parties hereto.”
Daniel Lyons, not having disposed of any of his interest in the lands, died, intestate, without issue, and without having had issue, on the 4th of May, 1916, leaving a widow, three brothers, two sisters, and two children of a deceased brother. The bill in this cause was filed by the widow of Daniel, one brother and his wife, asking for the construction of the will of Cornelius Lyons and of the deed from Dennis to Daniel hereinbefore mentioned, and praying that if the deed conveyed a lesser interest than the whole of Dennis’ interest in the land it be reformed because of an alleged mutual mistake of the parties. The cause being at issue, on April 13, 1918, Dennis Lyons died and the administrator of his estate was brought upon the record.
It is agreed that as to the lands other than those coming from Cornelius Lyons the deed from Dennis to Daniel conveyed all of Dennis’ interest. But it was the contention of Dennis, and is the contention of his representative, that as to the interest in the lands of their common ancestor which Daniel took by his will it became by the operation of the third clause of the will the property of Dennis because Daniel died without issue and Dennis survived him. .
The validity of the third clause of the will is not disputed — is admitted. Assuming its validity and consulting all of its provisions, it is clear that the intent of the testator was that the contingency of issue or no issue was to apply during the life of the devisees. The .words and context do not import an indefinite failure of issue. Strain v. Sweeny, 163 Ill. 603 (45
Plaintiffs, who are heirs of Daniel, state and argue two principal propositions. They say, first, that Dennis having an indefeasible title to an undivided half of the land, if he had conveyed it to a third person,—
“the title to his said interest in that land, upon the death of Daniel Lyons without issue would have vested absolutely in the grantee. But the conveyance was to Daniel Lyons, the one person having any interest in the property outside of the grantor, and we think when this conveyance was made the fee and the contingent interest were merged in one person and the title bcame absolute in him.”
They say, second, that, if the deed of Dennis conveyed any less that his entire interest in the estate, it should be reformed to include his entire interest, because it was the intention of both Daniel and Dennis that Dennis should convey his entire interest.
They contend, and we agree with them, that an estate defeasibly vested—
*481 “has all the qualities of * * * an absolute estate until the divesting contingency happens.”
The deed of Dennis to Daniel describes what is conveyed as an undivided one-half interest in the land, in fee. We may admit, for the purposes of this case, that, if both had joined in a warranty deed to a third person, they could have conveyed an absolute, indefeasible title in fee simple. It does not follow that, if one conveyed “an undivided one-half interest” in the land, his grantee, the other brother, dying without issue, the grantor surviving, would have succeeded, by force of his deed, to the title and interest of the deceased brother. The point, it seems to us, does not require argument to sustain it. The deed in question here carefully limits what is conveyed and the covenants of the deed apply to the interest as limited. It secured to Daniel absolute control of the property and all of the income therefrom so long as Daniel lived. But the contingency that he might die without issue, his brother Dennis surviving him, remained, affecting the interest which Daniel acquired from his father, the testator. This contingent interest did not expressly, or by legal implication, pass by the deed.
Testimony warranting the reformation of a deed because of a mutual mistake must be convincing that a mistake was made. The testimony in this case falls far short of this. There is no evidence of any mistake of fact, nor of fraud or concealment. Both sons knew the state of the title. In determining whether an instrument ought to be reformed because not expressing the will or bargain of the parties thereto, the language of the instrument is always important. It is especially important here since it appears that with mutual knowledge of the peculiar condition of the title the grantor executed and the grantee accepted a conveyance containing the clause above set out.