Morse v. Sharkey
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED APRIL 2, 2009
In re Estate of ALICE J. RAYMOND, Deceased.
____________________________________________
CLAIR MORSE,
Petitioner-Appellee,
v
No. 134461
VALERIE SHARKEY, GAIL THOMAS, GARY
ZIEGLER, DEANNA CONANT, CARYN NUZHET,
JAY CURRY, MARY JEAN MANDELA, JOHN
PACKARD, FRANK PACKARD, LISA MORSE,
ELLIOTT GUILLORY, ROBERT McCLELLAND,
BEVERLY CLEMENT, DAVID MORSE, JUDITH
FROELICK, PHILLIP MORSE, JOAN SUMMERS,
JANICE FALKEY, DONALD MORSE, MARVIN
STULL, ERIC STULL, FRANK BRIGGS, JOANNE
CARTER, and MARILYN RIGEL,
Respondents-Appellants.
BEFORE THE ENTIRE BENCH (except HATHAWAY, J.)
PER CURIAM.
In this case, we are called upon to discern the group of individuals who
may take under the residuary clause of the testator’s will. Petitioner maintains that
the residuary clause includes only the surviving siblings of the testator and her late
husband, to the exclusion of the surviving heirs of predeceased siblings. In lieu of
granting leave to appeal, we would affirm the judgment of the Court of Appeals
and hold that the probate court correctly construed the will in petitioner’s favor.
The class, “brothers and sisters,” was unambiguously qualified and limited by the
phrase “that survive me.” This qualification clearly indicated the testator’s intent
to exclude her predeceased siblings and their heirs from the class of devisees.
Facts and Procedural History
On January 15, 1979, testator Alice Raymond and her husband Claude
Raymond executed mirror-image wills, both leaving their estates to one another
upon death.1 Claude Raymond predeceased the testator in February 2000, and
Alice Raymond died at the age of 88 in February 2005. Because the testator’s
spouse was already deceased, the residuary clause of the will came into effect. It
provided that the remainder of the estate would be divided as follows:
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.
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.
The testator had eight siblings, but at the time of her death, only two of her
siblings were alive. Likewise, the testator’s spouse had eight siblings, but only
three of her deceased husband’s siblings were alive at the time of the testator’s
1
Each will provided that any debts, taxes, funeral costs, or administrative
expenses would be paid out of the estate first.
2
death. The petitioner in this case is one of the testator’s surviving brothers. The
respondents are some of the children and grandchildren of the deceased siblings of
Alice and Claude Raymond.
In June 2005, petitioner filed a petition for probate followed by a petition to
construe the will. Petitioner argued that only the surviving siblings of the testator
and her husband could take under the clear terms of the will.
Respondent
maintained that the will provided for “the survivor or survivors” of the deceased
siblings of Alice and Claude Raymond. Following a hearing, the probate judge
agreed with petitioner and denied respondents a share of the estate, reasoning:
I think in reading the clause one has to look at the first phrase,
“Fifty per cent thereof to my brothers and sisters that survive me,”
then there is a coma [sic]. It would appear to this court that the
group Ms. Raymond was dealing with were to [sic] her brothers and
sisters. Then she qualified that group by “those who survive me.”
The remaining clause, in this court’s eyes, would be descriptive of
the earlier group, the earlier group being “my brothers and sisters
that survive me.” The remaining phrase, “to share and share alike or
to the survivors thereof” would mean to my brothers and sisters,
those who predecease me, to those that are left, to share and share
alike and to the survivors thereof.
The Court of Appeals affirmed. The majority held that, under the plain
language of the will, only the testator’s surviving siblings and siblings-in-law
could receive a share of the estate, and that the will granted nothing to the
descendants of predeceased siblings. Because the testator limited the class of
“brothers and sisters” to those who survived the testator, this indicated the
testator’s intent to exclude any predeceased siblings from the class of devisees.
3
The Court of Appeals majority further held that the phrase “share and share
alike” evinced the intent to bestow a per capita distribution among the surviving
siblings. The Court of Appeals majority reasoned that the second clause of the
bequest—“or to the survivor or survivors thereof”—modified “my brother[s] and
sisters that survive me,” confining membership to testator’s surviving siblings.2
The dissenting judge believed that the plain language of the provision
indicated that the estate should be shared by both the surviving siblings and the
heirs of the deceased siblings.
The dissent believed that the majority’s
interpretation was illogical and redundant, and that the phrase “survivors thereof”
must refer to someone other than the surviving siblings.
Specifically, the
dissenting judge believed that the phrase must refer to the descendants of the
predeceased siblings.3
The respondents appealed in this Court. We heard oral argument on the
application for leave to appeal, and now we would affirm the judgment of the
Court of Appeals.
Analysis
“The primary goal of the Court in construing a will is to effectuate, to the
extent consistent with the law, the intent of the testator.”4 To accomplish this, a
2
In re Raymond Estate, 276 Mich App 22; 739 NW2d 899 (2007).
3
Id. at 35-41 (Murphy, J., dissenting).
4
In re Edgar Estate, 425 Mich 364, 378; 389 NW2d 696 (1986). See also
Hay v Hay, 317 Mich 370, 397; 26 NW2d 908 (1947), Dodge v Detroit Trust Co,
4
court gives effect to the drafter’s intent as indicated in the plain language of the
will.5 The will must be read as a whole and harmonized, if possible, with the
intent expressed in the document. If there is no ambiguity, the Court is to enforce
the will as written.6 However, if the intent of the testator cannot be gleaned solely
by reference to the will because there is an ambiguity, the Court may discern the
intent of the testator through extrinsic sources.7 Additionally, while the probate
court’s factual findings are subject to review for clear error,8 a probate court’s
construction of a will is a question of law subject to de novo review.9
The substantive portions of the testamentary provisions are identical,
providing for “[f]ifty (50%) per cent thereof to the brothers and sisters that survive
me, share and share alike or to the survivor or survivors thereof.” We agree with
the probate court’s ruling in this case that the identified group who may take under
the terms of the residuary clause is comprised of the brothers and sisters of Alice
and Claude Raymond. However, that group does not include all siblings, but is
limited by the phrase “that survive me.” Thus, the inclusion of this express
300 Mich 575, 598; 2 NW2d 509 (1942), and In re Churchill’s Estate, 230 Mich
148, 155; 203 NW 118 (1925).
5
In re Jamieson Estate, 374 Mich 231; 132 NW2d 1 (1965).
6
In re Butterfield Estate, 405 Mich 702; 275 NW2d 262 (1979); In re
Lowrie’s Estate, 294 Mich 298; 293 NW 656 (1940).
7
Id.
8
In re Wojan Estate, 126 Mich App 50; 337 NW2d 308 (1983); In re
Burruss Estate, 152 Mich App 660, 663-664; 394 NW2d 466 (1986).
9
In re Bem Estate, 247 Mich App 427, 434; 637 NW2d 506 (2001).
5
limitation necessarily precludes those siblings who predeceased Alice Raymond
from taking a portion of the testator’s estate under the residuary clause.
We further agree with the probate court that the remaining clause “or to the
survivor or survivors thereof” necessarily references the group described earlier in
the disjunctive phrase—the surviving brothers and sisters. This is consistent with
In re Holtforth’s Estate, 298 Mich 708; 299 NW 776 (1941); and In re Burruss
Estate, 152 Mich App 660; 394 NW2d 466 (1986). As Justice Cooley noted in
Eberts v Eberts, 42 Mich 404, 407; 4 NW 172 (1880), when a will “only makes
the gift to persons who survived the testat[or] there is nothing to go to the issue of
others who died before []he did.” (Emphasis added.)10
While the testamentary phrase was imperfectly worded, any other
construction, such as that advanced by the Court of Appeals dissent, would permit
10
Although “words of survivorship . . . are not, in the absence of additional
evidence, a sufficient indication of an intent contrary to the application” of the
antilapse statute, MCL 700.2603(1)(c), we agree with the Court of Appeals
majority that
the language of the residuary clause taken as a whole—specially
taking into account the use of the three separate statements: “that
survive me,” “share and share alike,” and “the survivor or survivors
thereof”—expresses an intent to make a provision for the death of
the beneficiaries in a manner contrary to that provided for in the
antilapse statute.” [In re Raymond Estate, supra at 35, citing In re
Burruss Estate, supra at 663, 665; In re Holtforth’s Estate, supra at
710-711).]
6
a gift to the predeceased siblings of the testator, a group that was specifically
excluded by the plain language of the will.
We would affirm.
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
7
STATE OF MICHIGAN
SUPREME COURT
In re Estate of ALICE J. RAYMOND,
Deceased.
___________________________________
CLAIR MORSE,
Petitioner-Appellee,
v
No. 134461
VALERIE SHARKEY, GAIL THOMAS,
GARY ZIEGLER, DEANNA CONANT,
CARYN NUZHET, JAY CURRY, MARY
JEAN MANDELA, JOHN PACKARD,
FRANK PACKARD, LISA MORSE,
ELLIOTT GUILLORY, ROBERT
McCLELLAND, BEVERLY CLEMENT,
DAVID MORSE, JUDITH FROELICK,
PHILLIP MORSE, JOAN SUMMERS,
JANICE FALKEY, DONALD MORSE,
MARVIN STULL, ERIC STULL, FRANK
BRIGGS, JOANNE CARTER, and
MARILYN RIGEL,
Respondents-Appellants.
WEAVER, J. (concurring in the result only).
Leave to appeal was not granted in this case. Rather, oral argument on
respondents’ application for this Court to grant leave to appeal was heard in this
case in order to determine whether this Court should grant leave to appeal, deny
leave to appeal, or take other peremptory action. Having heard oral argument, I
would deny leave to appeal because I am not persuaded that this Court should take
any further action in this unique, fact-specific case that should have no
precedential value.
Elizabeth A. Weaver
2
STATE OF MICHIGAN
SUPREME COURT
In re Estate of ALICE J. RAYMOND,
Deceased.
___________________________________
CLAIR MORSE,
Petitioner-Appellee,
v
No. 134461
VALERIE SHARKEY, GAIL THOMAS,
GARY ZEIGLER, DEANNA CONANT,
CARYN NUZHET, JAY CURRY, MARY
JEAN MANDELA, JOHN PACKARD,
FRANK PACKARD, LISA MORSE,
ELLIOTT GUILLORY, ROBERT
McCLELLAND, BEVERLY CLEMENT,
DAVID MORSE, JUDITH FROELICK,
PHILLIP MORSE, JOAN SUMMERS,
JANICE FALKEY, DONALD MORSE,
MARVIN STULL, ERIC STULL, FRANK
BRIGGS, JOANNE CARTER, and
MARILYN RIGEL,
Respondents-Appellants.
MARKMAN, J. (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 administrative and funeral costs and taxes related to
testator’s death be paid out of her estate, and then gives the “rest, residue and
remainder of [testator’s] property and estate” (“residuary estate”) to her husband,
Claude Raymond (“Claude”).
The will provides, however, that if Claude
predeceases testator (or if Claude and testator die simultaneously), the residuary
estate should be divided pursuant to paragraphs A and B.1 Paragraphs A and B
allocate testator’s residuary estate as follows:
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
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.
2
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.
2
testator’s death, two of her brothers were alive, and Claude’s two brothers and one
of his sisters were alive.3
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 of predeceased brothers and/or sisters” of
either testator or Claude.
Petitioner further asked the court to find that the
antilapse statute, MCL 700.2603, did not apply on the basis of the alternative
devise created by the language “or to the survivor or survivors thereof.”
Respondents, children and grandchildren of testator’s and Claude’s
predeceased siblings,4 objected to the petition and argued that the will should be
construed to allow the “descendants of a deceased devisee” to “take their deceased
ancestor’s share by representation.”5 Respondents alternatively argued that the
shares testator’s predeceased siblings would have recovered had they survived
testator should be distributed to the descendants of those predeceased siblings
pursuant to the antilapse statute.
3
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.
4
“Predeceased siblings” refers to either testator’s or Claude’s siblings who
passed away before testator died.
5
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.
3
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 A and B, and descendants of predeceased
siblings were entitled to nothing. The dissenting judge noted that interpreting
“survivor or survivors thereof” to designate siblings who survived testator was
“redundant” and instead interpreted this phrase to designate survivors of testator’s
and Claude’s siblings who predeceased testator. Thus, the “estate would be shared
by surviving siblings and the surviving descendants of the siblings who had
predeceased the testator.” In re Raymond Estate, 276 Mich App at 40 (Murphy, J.,
dissenting).
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
4
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.6
In re Bem Estate, 247 Mich App 427, 433; 637 NW2d 506 (2001); see
also Oakland Co Bd of Co Rd Comm’rs v Michigan Prop & Cas Guaranty Ass’n,
456 Mich 590, 610; 575 NW2d 751 (1998) (holding that questions of law are
reviewed de novo).
III. Will Interpretation
Our cases are longstanding and uniform in pronouncing that the Court’s
responsibility in interpreting a will is to enforce the testator’s intent. See, e.g.,
Palms v Palms, 68 Mich 355, 378; 36 NW 419 (1888) (“In construing wills, it is
well settled that the intent of the testator must be ascertained and carried into
effect so far as it legally can be done.”); In re Scheyer’s Estate, 336 Mich 645,
648; 59 NW2d 33 (1953) (“[T]he primary consideration is to determine, if
possible, the intent of the maker.”); In re Churchill’s Estate, 230 Mich 148, 155;
203 NW 118 (1925) (“In the construction of wills the cardinal canon, the guiding
6
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).
5
polar star, is that the intent of the testator must govern . . . .”). This responsibility
is a function of a testator’s right to freely dispose of property belonging to the
testator as he or she sees fit. In re Sprenger’s Estate, 337 Mich 514, 521-522; 60
NW2d 436 (1953).7
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 Chapple’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; 120 NW2d
752 (1963) (citation and quotation marks omitted). “Having so ascertained [the
testator’s] intention, it is the duty of the court to give that intention effect if that be
legally possible.” In re Schreyer’s Estate, 336 Mich at 649.
7
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).
6
IV. Analysis
A. Division of Residuary Estate
Paragraph SECOND 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 disagree with the plurality that testator intended both clauses to refer to
“the surviving brothers and sisters.” Ante at 5-6.
7
1. 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.8
In order to
“survive,” one must “remain alive, as after the death of another or the occurrence
of some event.” Random House Webster’s College Dictionary (2001). The will
provides that the sibling must survive “me,” identifying testator as the one her
sibling must outlive to qualify for the class. Thus, the class entitled to recover
under the first clause is interpreted to consist of testator’s two brothers who were
living at the time of her death.
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
8
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.”
8
Brandt, 168 Mich 642, 650; 134 NW 1018 (1912) (citation and quotation marks
omitted). A distribution “per capita” is a division of the estate “according to the
number of individuals . . . by which an equal share is given to each of a number of
persons, all of whom stand in equal degree to the decedent.”
Black’s Law
Dictionary (5th ed). In the instant case, “share and share alike” provides that the
50 percent portion under paragraph A should be divided into equal shares among
individuals who are equally within the class defined by paragraph A.
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
9
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” to separate the two clauses in paragraph A. This
term communicates an intent to set forth alternative classes of beneficiaries in
these clauses. The classes defined in these clauses, therefore, must be distinct,
rather than redundant, in order that testator’s will be given effect. The instant
interpretation of “survivor or survivors thereof” achieves this with the first class
comprised of brothers and sisters who survive testator and the second class
comprised of descendants of brothers and sisters who did not survive testator.
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
10
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
survivors” should receive the share. See In re Horrie Estate, 365 Mich 448, 453454; 113 NW2d 793 (1962).
Under Michigan’s inheritance scheme, the
predeceased sibling’s descendants take by representation.9 MCL 700.2103(a).
MCL 700.2106(1) provides the framework by which the predeceased sibling’s
share should be divided among the sibling’s descendants by representation:
[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.10 The
9
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.”
10
If none of the sibling’s children is alive, then the sibling’s share is
divided among the sibling’s grandchildren.
11
children who survived the sibling are each entitled to one share. For the children
who predeceased the sibling, their shares are combined and divided in the same
manner among the predeceased children’s surviving descendants (the predeceased
sibling’s grandchildren).
The descendants of the surviving children are not
included in this division, nor are they entitled to any share.
The potential for survivors to be entitled to distribution by representation
explains testator’s placement of “share and share alike” after the class defined in
the first clause, “brother[s] and sisters that survive me.” Had testator placed
“share and share alike” after the second clause, “survivor or survivors thereof,” the
specified division would have been more reasonably interpreted as being among
testator’s siblings and testator’s predeceased siblings’ descendants. Because the
predeceased sibling’s descendants, who are substitute beneficiaries for the
predeceased siblings, could include the living children and grandchildren of any
predeceased sibling, to include those descendants in calculating the initial division
of the 50 percent portion of the estate would possibly create a division of shares
among a large number of people. Such a division would diminish the property to
which each living sibling would be entitled, apparently arbitrarily and quite
possibly in a manner not intended by testator, and allow persons standing in
different degrees of relation to testator to recover an equivalent amount. This
result is avoided by testator’s placement of “share and share alike” after the first
clause, where it is reasonably interpreted to apply to a division among the
preceding class.
12
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 6-7. 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 sibling to recover under the will. That
is, each of testator’s siblings is allocated a share of 50 percent of the estate under
paragraph A. If the sibling was alive at the time of testator’s death, then that
sibling takes his or her respective share. If the sibling has predeceased testator,
then the share allocated for that sibling, rather than going to the sibling, goes to the
sibling’s descendants.
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
13
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 whole residuary estate is divided 50-50 between
paragraph A and paragraph B.
Under paragraph A, 50 percent of the total
residuary estate should be divided into equal shares based on testator’s number of
siblings. Each brother and sister who survived testator should receive his or her
respective share. Each share allocated to a brother or sister who predeceased
testator should in turn be distributed according to MCL 700.2106(1). Paragraph B
distributes the other 50 percent of the whole estate in a similar manner by dividing
it into equal shares based on Claude’s number of siblings. Each of Claude’s
siblings who survived testator should receive his or her respective share. Each
share allocated to a sibling of Claude’s who predeceased testator should go to the
surviving descendants of that sibling pursuant to MCL 700.2106(1).
The distribution under paragraphs A and B completely disposes of
testator’s property and does not leave any remaining portion of the estate
14
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.11
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, which evidences an obvious understanding between testator
and Claude that, without regard to which among them died first, once both had
died, their combined estates would be divided equally between their families. By
taking measures to implement an equal division under any circumstances, testator
demonstrated the importance she placed on having each family receive an equal
portion.12 After the whole estate is divided 50-50 between testator’s and Claude’s
families, each portion remains in the respective family because the existence of the
substitute beneficiaries ensures that the 50 percent devise does not lapse.
11
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.
12
Because paragraphs A and B each distributes 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.
15
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 who were still living at the time of testator’s death. If a sibling was still
living at the time of testator’s death, the sibling will always be a “survivor,”
because the only way by which a sibling cannot be a survivor is if he or she
predeceased testator. The sibling’s death would also mean that the sibling did not
“survive [testator].” Thus, under this interpretation, a sibling alive after testator’s
death will always be in the first and second groups, and a predeceased sibling will
never be in either of the groups. This interpretation, therefore, creates the same
class with the different language in each clause, even though testator clearly
16
intended for the second clause to provide alternative beneficiaries for the first
clause through her use of the word “or.”
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 6, 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.13
13
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 had predeceased the
testator. This interpretation created an alternative to the distribution to all three
daughters, which appropriately gave effect to the testator’s express language
(specifically her use of “or”). Yet, this interpretation cannot be reasonably
transferred to “to the survivor or survivors thereof,” because the group in the first
clause of the instant will consists of brothers and sisters who survived testator.
Testator’s use of the word “or” must be given effect, and Burruss cannot be read
to support ignoring testator’s express language.
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
17
Under the plurality’s interpretation, the distribution under paragraph A
would be subject to the antilapse statute, which would create a distribution through
paragraph A different from the distribution through paragraph B, contrary to
testator’s manifest intent that the distribution through each paragraph be the
same.14 On the other hand, the interpretation set forth in this dissent results in an
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 “brother[s] and sisters that survive me.”
Additionally, the testator’s use of “and” does not denote an alternative like the
word “or” does.
14
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(1)(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(1)(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(1)(d).
Thus, unless testator provided an alternative devise, substitute devises would be
created for paragraph A, because testator’s predeceased siblings are descendants
of testator’s grandparents.
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]
18
identical distribution under paragraphs A and B, which is not altered by the
antilapse statute, thereby enforcing testator’s use of the same language in each of
those paragraphs. 15
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 “brother[s] 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 6 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(1)(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(1)(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
antilapse statute, whereas the descendants of Claude’s siblings who predeceased
testator would not be entitled to any shares.
15
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
19
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.16
See In re Raymond Estate, 276 Mich App at 40-41 (Murphy, J.,
dissenting). If no sibling could recover under paragraph B, the 50 percent portion
set aside for Claude’s family would be distributed under the state’s intestacy
statutes, which only distribute a testator’s estate to the testator’s heirs at law, who
do not include any of Claude’s family.17 In re Martz’s Estate, 318 Mich 293, 301;
28 NW2d 108 (1947). In such a situation, Claude’s family would receive no
distribution, in contravention of testator’s intent that each family receive an equal
50 percent portion of the residuary estate under all circumstances, and “all” of the
estate would not be distributed through paragraphs A and B, in direct opposition to
testator’s intent.18
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(1)(d).
16
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 be 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.
17
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.
18
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
20
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).
Stephen J. Markman
Michael F. Cavanagh
Hathaway, J., did not participate in the decision of this case in order to
avoid unnecessary delay to the parties in a case considered by the Court before she
assumed office by following the practice of previous justices in transition and
participating only in those cases for which her vote would be result-determinative.
her estate through the will would have been futile, because the will would have no
bearing on the distribution under those circumstances.
21
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