AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
(dissenting). Before this Court is the interpretation of a will. Because I believe that the will in dispute commands an interpretation different from that accorded by the plurality, I respectfully dissent.
I. FACTS AND PROCEDURAL HISTORY
On January 15, 1979, Alice Raymond (“testator”) executed the instant will. It first directs that all admin
A. Fifty (50%) per cent thereof to my brother[s] and sisters that survive me share and share alike or to the survivor or survivors thereof[2 ]
B. Fifty (50%) per cent thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
When testator died on February 27, 2005, Claude had predeceased her, thereby triggering the will’s distribution under paragraphs A and B. At the time of testator’s death, two of her brothers were alive, and Claude’s two brothers and one of his sisters were alive.
Petitioner, one of testator’s brothers, argued before the probate court that paragraphs A and B should be construed to allow only testator’s and Claude’s brothers and sisters who survived testator to receive under the will with “no share [going] to the surviving descendants
Respondents, children and grandchildren of testator’s and Claude’s predeceased siblings,
On December 7, 2005, the probate court ordered that testator’s two surviving brothers should take 50 percent of the residuary estate and that Claude’s two brothers and one sister who all survived testator should take the other 50 percent of the residuary estate. The descendants of testator’s and Claude’s predeceased siblings were “not entitled to any share in the residue.”
Respondents appealed in the Court of Appeals, which affirmed the probate court’s order in a split decision. The Court of Appeals concluded that the phrase “brother[s] and sisters that survive me” and the phrase “to the survivor or survivors thereof” both designated the brothers and sisters who outlived testator. In re Raymond Estate, 276 Mich App 22, 32-33; 739 NW2d 889 (2007). Accordingly, testator’s and Claude’s siblings who survived testator were entitled to a distribution under paragraphs
Respondents sought leave to appeal in this Court. We granted oral argument on respondents’ application for leave to appeal, In re Raymond Estate, 480 Mich 1194 (2008), which we heard on October 22, 2008, at Saginaw Valley State University. A plurality now affirms the interpretation of the Court of Appeals majority. In my judgment, however, the interpretation and analysis set forth by the Court of Appeals dissent are correct.
II. STANDARD OF REVIEW
By interpreting a will, this Court gives legal meaning to the words within the will. Accordingly, we review a probate court’s interpretation of a will de novo.
III. WILL INTERPRETATION
Our cases are longstanding and uniform in pronouncing that the Court’s responsibility in interpreting a will
The execution of a will constitutes the point at which the testator is presumed to have formed an intent regarding the distribution of his or her property. Morrow v Detroit Trust Co, 330 Mich 635, 642; 48 NW2d 136 (1951). Thus, the language of the will constitutes the best source from which the testator’s intent can be determined. Kinney v Kinney, 34 Mich 250, 252-253 (1876); In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983). The will should be read as a whole, In re Chappie’s Estate, 338 Mich 246, 253; 61 NW2d 37 (1953); In re Brown’s Estate, 324 Mich 264, 267; 36 NW2d 912 (1949), and all words used by the testator should be given effect. Id. “The words are to be given their primary and natural significance unless the context makes it clear that they were employed in a different sense.” In re Bruin Estate, 370 Mich 34, 40;
IV ANALYSIS
A. DIVISION OF RESIDUARY ESTATE
The second paragraph of the will states in relevant part:
[I]n the event my said husband should predecease me or should my said husband and I die in a common disaster making it impossible to determine the order of our deaths, then and in such event all of the aforesaid rest, residue and remainder of my estate shall be divided in manner following: [Paragraphs A and B].
Thus, the will directs that if Claude dies before testator, as was the case here, “all” of testator’s residuary estate “shall” be divided according to paragraphs A and B. The straightforward language “all” and “shall” expresses the testator’s clear direction that the whole residuary estate be distributed as provided in paragraphs A and B.
B. PARAGRAPH A
Paragraph A states:
A. Fifty (50%) per cent thereof to my brother[s] and sisters that survive me share and share alike or to the survivor or survivors thereof.
I have separated paragraph A into two clauses for purposes of interpretation, the first reading “Fifty (50%) per cent thereof to my brother[s] and sisters that survive me share and share alike,” and the second reading “or to the survivor or survivors thereof.” I
X. FIRST CLAUSE
The will states that the residuary estate “shall be divided” in the manner described in paragraphs A and B, and the language directly preceding these paragraphs states that “all of the aforesaid rest, residue and remainder of my estate shall be divided in manner following.” Thus, when paragraph A’s first clause begins with “Fifty (50%) per cent thereof,” the object to which “thereof” refers must be the residuary estate.
“[T]o my brother[s] and sisters that survive me” defines the class of recipients to which the 50 percent portion must be distributed.
The final phrase in the first clause, “share and share alike,” identifies the manner by which the 50 percent portion should be divided. “A direction for the division of certain specified property between the members of a group, ‘share and share alike,’ is construed as a direction to distribute per capita.” Van Gallow v Brandt, 168 Mich 642, 650; 134 NW 1018 (1912) (citation and quotation marks omitted). A distribution “per capita” is
2. SECOND CLAUSE
Paragraph A’s second clause includes the phrase “to the survivor or survivors thereof,” which is analogous to the phrase “to my brother[s] and sisters that survive me” in that both phrases begin with the word “to” and then conclude with language identifying a class of persons. This analogous formulation indicates that the class identified in the second clause, like the class defined in the first clause, should be understood as a class entitled to recover under the will.
“[S]urvivor or survivors thereof” again defines a class of persons who outlive another individual. In this context, unlike with regard to the earlier reference in the paragraph to brothers and sisters who “survive me,” the death that one must outlive to be a “survivor” is the death of a predeceased sibling. Upon testator’s death, two events were possible with respect to each one of testator’s siblings. One event was that the sibling was still alive. The sibling would then be entitled to recover as one of the “brother[s] [or] sisters that survived [testator].” The second event is that the sibling had predeceased testator, which would mean that the sibling’s descendants still living would be “survivors” of that sibling because they had outlived the sibling.
This interpretation of “survivor or survivors thereof” is supported by testator’s use of the word “or”
3. FIRST AND SECOND CLAUSES TOGETHER
When the first and second clauses are read together, paragraph A entitles a sibling who survived testator to recover a share of the estate and creates a substitute devise for any sibling who did not survive testator, to which the survivor or survivors of the predeceased sibling are entitled. The devise created for both a surviving sibling and a predeceased sibling’s survivors must be allocated from within the 50 percent portion distributed under paragraph A. This allocation is defined by the phrase “share and share alike,” which, as explained earlier, divides the estate among a group of people who stand as part of a similar class. Dividing the 50 percent portion by the total number of testator’s siblings (who are in equal relation to testator and in the class preceding) creates eight equal shares. The two brothers who survived testator are each entitled to their own share. The surviving descendants of each predeceased sibling take the share that would have gone to the predeceased sibling had he or she survived testator.
The share for each group of surviving descendants is disbursed according to inheritance, because testator’s will provides no guidance for how the “survivor or
[T]he estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
Accordingly, the predeceased sibling’s share is further divided into shares based on the sibling’s number of children, assuming at least one child is still alive.
The interpretation set forth above, contrary to the plurality’s assertion, would not “permit a gift to the predeceased siblings of the testator, a group that was specifically excluded by the plain language of the will.” Ante at 54. Rather, it recognizes that the first clause excludes a predeceased sibling and that such exclusion creates a potential void for the share allocated to that sibling. However, the second clause fills that void by providing an alternative beneficiary. This alternative distribution does not “permit a gift to the predeceased sibling” but allows the descendants of the predeceased
C. PARAGRAPH B
The identity of language between paragraphs A and B reflects testator’s intent that the distribution through one paragraph be similar to the distribution through the other. By expressing her intent to distribute a portion of the estate in a particular way in paragraph A, testator seemingly intended to match that distribution for the other portion of the estate by reciting the same language in paragraph B. Additionally, because of this identity, paragraph B is subject to the same interpretation as A, with the only difference being that paragraph B pertains to Claude’s, rather than testator’s, siblings. Interpreting paragraph B in the same manner identified above for paragraph A creates the following distribution under paragraph B: a 50 percent portion of the estate should be divided into eight equal shares; Claude’s two brothers and one sister who were still living at the time of testator’s death should each receive one of the shares; and the remaining five shares should go to the respective descendants of each of the five siblings who predeceased testator. Within each group of descendants, the share should be divided by representation as outlined in MCL 700.2106(1).
D. PARAGRAPHS A AND B TOGETHER
The will directs that the whole residuary estate be distributed solely through paragraphs A and B. The
The distribution under paragraphs A and B completely disposes of testator’s property and does not leave any remaining portion of the estate undistributed. Every share under both paragraphs goes to either a sibling or the descendants of a predeceased sibling. Even if all of testator’s siblings or all of Claude’s siblings had predeceased testator, the 50 percent portions would still have been distributed strictly through paragraphs A and B as long as at least one survivor existed.
Under similar reasoning, this interpretation also, importantly, maintains an equal division of the whole estate between testator’s family and Claude’s family. The importance of this division is reflected in the execution by testator and Claude of mirror-image wills,
V PLURALITY INTERPRETATION
The plurality’s interpretation, in my judgment, fails to give testator’s language full effect. In particular, it interprets the class in the first clause to consist of the same individuals who make up the class in the second clause. That is, the siblings who outlive testator are both “brother[s] and sisters that survive [testator]” and “the ... survivors thereof.” This interpretation forces the strained reading that testator intended to give her estate to the siblings who survived her “or” to the siblings still alive when she died. I respectfully disagree with this interpretation because rather than giving meaning to testator’s use of the word “or” to indicate alternative classes in the first and second clauses of paragraph A, the plurality essentially construes two distinct phrases (“my brother[s] and sisters that survive me” and “the survivor or survivors thereof”) to designate the exact same class. The only individuals who qualify to be included in the first class are siblings
I further disagree with the method of analysis by which the plurality reaches its conclusion. In particular, it relies on the results from In re Burruss Estate, 152 Mich App 660; 394 NW2d 466 (1986), and In re Holtforth’s Estate, 298 Mich 708; 299 NW 776 (1941), ante at 53, even though, as the Court of Appeals acknowledged, the wills in those cases are not “exact match[es]” to the instant will. In re Raymond Estate, 276 Mich App at 32. The variances among the wills, however, are highly significant, and because Burruss and Holtforth can be easily distinguished on these grounds, I believe reliance on those cases is an inappropriate substitute for giving full effect to the instant will’s language.
Finally, the plurality’s interpretation does not establish alternative beneficiaries who would retain the 50 percent portion of the residuary estate under paragraph B with Claude’s family if all of Claude’s siblings had predeceased testator.
The different distributions provided by the plurality and by this dissent illustrate the importance of giving meaning to all of a testator’s words. The interpretation of the plurality, in my judgment, will leave uncertainty and doubt in its wake. By contrast, the interpretation of this dissent would leave testators confident that the precise words by which they choose to pass on their estate will be given full effect by the state.
VI. CONCLUSION
For these reasons, I would remand to the probate court for that court to divide the residuary estate as outlined earlier. The shares going to the “survivor or survivors” of testator’s and Claude’s siblings who predeceased testator should be distributed in accordance with MCL 700.2106(1).
Claude and testator executed mirror-image wills at the same time. Each spouse’s will left his or her estate to the other spouse, and then set forth the distribution to take effect pursuant to paragraphs A and B if the other spouse had already died.
Although paragraph A states “to my brother and sisters,” the probate court read the phrase as “to my brother[s] and sisters” without objection by either party. Accordingly, I adopt the probate court’s reading of this paragraph.
Testator had five brothers, three of whom predeceased her, and three sisters, all of whom predeceased her. Claude had two brothers, who both survived testator, and six sisters, five of whom predeceased testator.
“Predeceased siblings” refers to either testator’s or Claude’s siblings who passed away before testator died.
Representation is a means by which the closest descendant (or descendants) of a deceased devisee take the share to which the deceased devisee is entitled.
A probate court’s factual findings regarding a will, however, are given deference and reversed only for clear error. In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003).
The will is vital to determining the distribution that the testator intended because the testator, of course, “is not available to provide additional facts or insight.” In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983).
Random. House Webster’s College Dictionary (2001) explains that the use of “that” in this manner usually introduces a restrictive clause that is “essential to the complete meaning of the sentence.”
Typically, a predeceased sibling’s spouse would be entitled to take a portion of the sibling’s share pursuant to MCL 700.2102. There is no indication here, however, that any predeceased sibling’s spouse was still alive at the time that testator died. MCL 700.2103(a) directs that the whole share should go to the sibling’s descendants by representation “if there is no surviving spouse.”
If none of the sibling’s children is alive, then the sibling’s share is divided among the sibling’s grandchildren.
If a predeceased sibling had no survivors, then the devise of that share fails and the share is divided among the siblings who survived testator and the siblings who did not survive testator for whom substitute beneficiaries existed.
Because paragraphs A and B each distribute an equal percentage (50) of the whole estate to the respective families, the property received by testator’s family will equal the property received by Claude’s family.
The testator in Burruss devised her estate
in equal amounts, share and share alike, to [her] daughters, Anna Mary Vollick of Redford Township, Wayne County, Michigan, Jeanne Glaeser of Detroit, Michigan and Audrey Larson of Detroit, Michigan, or to the survivor or survivors of them. [In re Burruss Estate, 152 Mich App at 662.]
Burruss interpreted “survivor or survivors of them” to refer to any daughter still alive at the testator’s death if any of the other daughters
Similarly, the interpretation by this Court in In re Holtforth’s Estate cannot trump the language of testator’s will here because of the differences between the wills. The testator in Holtforth devised his property “To the seven children of my brother, John Holtforth, and the survivor of them, 20/35 of my said estate aforesaid.” Id. at 709 (emphasis in original). The devise to John’s seven children was not limited to only those children alive at the time of the testator’s death, in contrast to the devise here to “brotherfs] and sisters that survive me.” Additionally, the testator’s use of “and” does not denote an alternative like the word “or” does.
The antilapse statute creates a substitute devise when “a devisee fails to survive the testator and is a grandparent, a grandparent’s descendant, or a stepchild of” the testator. MCL 700.2603(1). The substitute devise “is created in the surviving descendants of a deceased devisee.” MCL 700.2603(l)(b). When a substitute devise is created, the property is distributed as follows:
Each surviving devisee takes the share to which he or she would have been entitled had the deceased devisees survived the testator. Each deceased devisee’s surviving descendants who are substituted for the deceased devisee take by representation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. [MCL 700.2603(l)(b).]
If the will, however, creates an “alternative devise” for the devise potentially subject to the statutory substitute devise, the substitute devise does not apply and the distribution through the alternative devise takes place. MCL 700.2603(l)(d). Thus, unless testator provided an
Under the statutory definition of “alternative devise,” the plurality’s interpretation does not create an alternative devise for testator’s predeceased siblings. An “alternative devise” is a devise “expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of 1 or more events .. ..” MCL 700.2601(a). The plurality’s interpretation does not create an “alternative devise” for siblings “that [did not] survive me” with “the survivor or survivors thereof,” because each phrase as interpreted by the plurality, as I have just demonstrated, can only include siblings who were still living at testator’s death. Thus, the devise to “survivor or survivors thereof” never takes effect under the plurality’s interpretation. That is, if the gift does not pass to a sibling because he did not “survive [testator],” then the gift also does not go to the sibling under the second clause because he is not a “survivor.” Consequently, the devise to “the survivor or survivors thereof” does not create an “alternative devise” under the antilapse statute, because it does not “take effect instead” of the devise to “brotherfs] and sisters that survive me” in any event. Additionally, the plurality erroneously relies on Burruss in concluding that the antilapse statute does not apply, see ante at 53-54 n 10, because the version of the statute in Burruss did not contain the express statement that “words of survivorship ... are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of” the provision creating a substitute gift. MCL 700.2603(l)(c).
In the end, the plurality’s interpretation, in combination with the application of the antilapse statute, leads to disparate distributions through paragraphs A and B. The antilapse statute only applies when the predeceased devisee is testator’s grandparent or a descendant of testator’s grandparent, MCL 700.2603(1), which descendants of Claude’s grandparents are not. Accordingly, under paragraph B, Claude’s siblings who survived testator, pursuant to the plurality’s interpretation, would receive the total 50 percent portion set aside for his family with the descendants of predeceased siblings receiving nothing. Yet, when the antilapse statute is applied to paragraph A, “[e]ach surviving [sibling] takes the share to which he or she would have been entitled had the deceased [siblings] survived the testator.” MCL 700.2603(l)(b). The share that a predeceased sibling would have recovered had the sibling survived testator goes to the predeceased sibling’s descendants. Id. Thus, the descendants of testator’s siblings who predeceased her would be entitled to her predeceased siblings’ shares through application of the
The interpretation of “the survivor or survivors thereof” set forth here satisfies the definition of an “alternative devise” under the antilapse statute because the devise to a predeceased sibling’s descendants arises from the will’s express language, takes effect when a sibling has predeceased testator, and takes place “instead” of the devise to the predeceased sibling. See MCL 700.2601(a). Thus, the alternative devise is enforced in lieu of the antilapse statute’s substitute devise. MCL 700.2603(l)(d).
Rather than interpreting “survivor or survivors thereof” in a manner that sustains testator’s intent to avoid such a situation, the plurality effectively construes the second clause to he inoperative, because if none of Claude’s siblings “survived [testator],” then no one is available to recover under paragraph B because only siblings who are alive are “survivors” under the second clause.
Heirs at law include descendants of a testator’s parents but do not include descendants of the testator’s spouse’s parents. MCL 700.2103.
Additionally, under the plurality’s interpretation, if all of testator’s and Claude’s siblings had predeceased testator, testator’s attempt to distribute “all” of her estate through the will would have been futile, because the will would have no hearing on the distribution under those circumstances.