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Articles 1 - 28 of 28
Full-Text Articles in Estates and Trusts
Fraud On The Widow’S Share, W. D. Macdonald
Fraud On The Widow’S Share, W. D. Macdonald
Michigan Legal Studies Series
This study seeks the answer to a troublesome question: What should be done about gratuitous inter vivos transfers in alleged "evasion" of the widow's statutory share? My thesis is that the statutory share should be replaced by the type of decedent's family maintenance legislation found in the British Commonwealth, and that this legislation should be buttressed with anti-evasion provisions. Inter vivos "evasions" seem to be a permanent and increasingly serious concomitant of our forced share system. Part I, dealing with matters of policy, explores the chief aggravating factors. These factors include the high rate of remarriage, which induces transfers to …
Conflicts Of Law - Extended Application Of Res Judicata In Administration Of Decedents' Estates, Norman A. Zilber S.Ed.
Conflicts Of Law - Extended Application Of Res Judicata In Administration Of Decedents' Estates, Norman A. Zilber S.Ed.
Michigan Law Review
The purpose of this comment is to examine the existing law and its rationale, and to see in which situations res judicata could beneficially be applied.
Wills-Interference With Revocation-Constructive Trust, John S. Yates
Wills-Interference With Revocation-Constructive Trust, John S. Yates
Michigan Law Review
The complaint alleged that testatrix who had executed a will leaving her whole estate to defendants attempted to make a new will containing legacies to plaintiffs, but that by means of misrepresentations, undue influence, force, and murder, testatrix was prevented by defendants from signing the new will. On appeal from dismissal of the complaint for insufficiency, held, reversed. If the allegations of the complaint be taken as true, plaintiffs are entitled to a judicial declaration that defendants hold the property under a constructive trust for plaintiffs. Latham v. Father Divine, 299 N.Y. 22, 85 N.E. (2d) 168 (1949).
Specific Performance-Oral Promise To Devise In Consideration Of Personal Services, C. J. Rice
Specific Performance-Oral Promise To Devise In Consideration Of Personal Services, C. J. Rice
Michigan Law Review
Decedent orally agreed that if plaintiff would render services as housekeeper, practical muse and general business associate, he would devise and bequeath one-half of his estate to her. Decedent died without having made a will, and plaintiff sought specific performance of the agreement. Held, performance of these services did not take the oral contract out of the operation of the statute of frauds because the services were capable of measurement in money, and recovery on a quantum meriut basis was adequate. Snyder v. Warde, 151 Ohio St. 426, 86 N.E. (2d) 489 (1949).
Descent And Distribution - Widow's Statutory Share - Widow Allowed To Elect Against Husband's Inter Vivos Trust Of Promise Under Seal, David H. Armstrong S. Ed.
Descent And Distribution - Widow's Statutory Share - Widow Allowed To Elect Against Husband's Inter Vivos Trust Of Promise Under Seal, David H. Armstrong S. Ed.
Michigan Law Review
Eleven years before his death, H executed his bond under seal for $20,000 payable one year after his death. He delivered the bond to a trustee to hold upon an irrevocable trust to collect and pay the proceeds to named beneficiaries. Upon H's death with a personal estate approximately equal to the amount of the bond, his widow elected to claim her statutory share in the estate, alleging that the bond was invalid. The trustee filed a bill alleging that the trust was sufficient to bar the widow, and the widow demurred. The demurrer was overruled by the trial …
Wills-Validity Of Condition Against Contest-Contest By Minor, Roland E. Ginsberg
Wills-Validity Of Condition Against Contest-Contest By Minor, Roland E. Ginsberg
Michigan Law Review
Defendant, a minor, contested his mother's will which provided that if a beneficiary should make any effort to invalidate or alter the will, the provisions made for such person should be void. Defendant's father, who had been appointed guardian ad litem, filed notice of contest and petitioned the probate court that the general guardian be compelled to contest the will. After hearing, it was so ordered, and a will contest was held in the circuit court, in which mental incompetency and undue influence were alleged. The contest being unsuccessful, the will was admitted to probate. Plaintiff, as executrix and …
Wills-Constructive Trust Imposed On All Heirs Where Some Interfered With Execution Of Will, Herhert E. Phillipson, Jr.
Wills-Constructive Trust Imposed On All Heirs Where Some Interfered With Execution Of Will, Herhert E. Phillipson, Jr.
Michigan Law Review
Two heirs at law, by physical force or by creating a disturbance, prevented decedent from executing a will devising her property to plaintiff. Shortly thereafter, decedent lapsed into a semi-comatose condition from which she never recovered. Plaintiff asked the court to impose a constructive trust on the distributive shares of all heirs, six of whom were not parties to the fraud. The district court gave judgment for the plaintiff; the Court of Civil Appeals partially reversed, allowing the innocent heirs to take free of any trust. On appeal, held, judgment of district court affirmed. Since all heirs at law …
Wills-Validity Of Attestation On Separate Sheet Of Paper Not Physically Attached To Will, Myron J. Nadler
Wills-Validity Of Attestation On Separate Sheet Of Paper Not Physically Attached To Will, Myron J. Nadler
Michigan Law Review
Testatrix drew an instrument consisting of a single sheet of paper, intending it as her will. In the presence of a notary public, three witnesses observed the instrument with testatrix' signature thereon and her acknowledgment of it as her will, but did not sign it. The document was then placed in an envelope. A separate instrument of attestation which referred to the will was prepared by the notary and signed by the testatrix and the attesting witnesses. This instrument and the envelope containing the will were both placed in another folder which was then deposited with the proper officials. Probate …
Trusts--Constructive Trusts--Effect Of Inter-Vivos Transfer Of Land On Oral Trust To Reconvey To Transferor, Ira M. Price, Ii S.Ed.
Trusts--Constructive Trusts--Effect Of Inter-Vivos Transfer Of Land On Oral Trust To Reconvey To Transferor, Ira M. Price, Ii S.Ed.
Michigan Law Review
Plaintiff, who had courted defendant for six years and had proposed marriage, conveyed a lot and house to defendant after various discussions and immediately upon the written suggestion of defendant. Later their romance terminated when she went abroad and plaintiff turned his attention to another woman. In a suit to cancel deed to the premises, held, that because of the confidential relationship which had existed between the parties and in order to prevent defendant from "completing her fraud," defendant held title as constructive trustee for plaintiff. Kausky v. Koten, (Wash. 1947) 179 P. (2d) 950.
The Present Status Of "Illusory" Trusts-The Doctrine On Newman V. Dore Brought Down To Date, Edward A. Smith
The Present Status Of "Illusory" Trusts-The Doctrine On Newman V. Dore Brought Down To Date, Edward A. Smith
Michigan Law Review
It has long been the policy of the law to provide for a widow by setting aside some portion of her deceased husband's estate for her future support. Such a policy, it has been said, dates back to the laws of Hammurabi and later evidences of it may. be found in the Justinian Code of the Roman Law, and in English law from the earliest times; its final manifestation being in the well-known common law dower. It is not with dower, however, that we are here concerned, for that institution is sufficiently well understood to require no discussion in this …
Wills-Testator's Mistake As To Legal Effect, Robert M. Barton
Wills-Testator's Mistake As To Legal Effect, Robert M. Barton
Michigan Law Review
Testator left the residue of his estate in trust for the benefit of his son, payments to be made in the trustee's discretion. No express provision was made for the disposition of the corpus of the trust in case of the son's death. The contestant, who was one of the testator's heirs, claimed the testator never would have executed such a will had his lawyer informed him that the contestant might be excluded from the remainder interest on the son's death under the rule laid down in Clyde v. Lake. Held: The will stands. There was no showing …
Wills-Interpretation Of Wills Statute Requiring Witness To Sign "In The Presence Of" The Testator, Allen C. Holmes
Wills-Interpretation Of Wills Statute Requiring Witness To Sign "In The Presence Of" The Testator, Allen C. Holmes
Michigan Law Review
Decedent died leaving a purported will dated October 30, 1930, by the terms of which all her property, real and personal, was devised to her daughter, the appellant herein. The decedent's husband was made executor. The document was perfectly regular upon its face. It was witnessed by two persons and the attestation clause recited "that we [the subscribing witnesses] were present and saw Susie Raby Alexander [the deceased] sign the above instrument." When the will was offered for probate one of the witnesses was dead. The one who did testify stated that the will had been signed by the decedent …
Wills - Interpretation Of "Existence" As Used In Statutes Providing For Probate Of Lost Or Destroyed Wills, Edward P. Dwyer, Jr.
Wills - Interpretation Of "Existence" As Used In Statutes Providing For Probate Of Lost Or Destroyed Wills, Edward P. Dwyer, Jr.
Michigan Law Review
Testator, about to undergo a serious operation, executed a will leaving $5,000 to his fiancée and the balance of his estate to his brother Louis. Three days later, after the operation had been performed and when testator was apparently on the road to recovery, he informed a lawyer that he desired to give his fiancée a check for $5,000 at once in lieu of the bequest to her in the will, and desired the rest of his estate to go to Louis. Testator mistakenly told the lawyer he had no other relatives. The lawyer then advised him to have the …
The Impact Of The Law Of Powers Upon Our Internal Revenue Laws, Montgomery B. Angell
The Impact Of The Law Of Powers Upon Our Internal Revenue Laws, Montgomery B. Angell
Michigan Law Review
An interesting difference in view has arisen recently in the halls of the Harvard Law School on the use of powers of appointment under the federal estate tax act. One view is that the chief efficacy today of the power of appointment lies in its capacity for use in tax evasion, which should be corrected. The other view is that there is a salutary tendency toward using sensible and flexible powers of appointment, which should be encouraged in meeting changing and difficult family situations, but which would be checked were the former view accepted. Thus we find here the age-old …
Public Policies Underlying The Law Of Mental Incompetency, Milton D. Green
Public Policies Underlying The Law Of Mental Incompetency, Milton D. Green
Michigan Law Review
Mental incompetency, or legal insanity, has usually been studied in the patchquilt fashion. It appears as a sub-heading of incidental interest in such widely diversified subjects as crimes, contracts, domestic relations, torts and wills. It can, however, be conceived of as a single strand in the seamless web. So viewed, it may appear to wind in and out of the various artificial subdivisions of the law, cutting across each at one particular place or another. And so conceived, it can be studied according to the second and less orthodox method of analysis. Few are the isolated areas in the law …
Trusts - Spendthrift Trusts - Beneficial Interest Held Not Attachable To Make Good Liability As Trustee, W. Wallace Kent
Trusts - Spendthrift Trusts - Beneficial Interest Held Not Attachable To Make Good Liability As Trustee, W. Wallace Kent
Michigan Law Review
Janet Jones was an inactive trustee and one of the beneficiaries of a spendthrift trust. Because of lack of good judgment on the part of her co-trustee, and without any moral fault on her part, Janet was charged with liability for a large sum. Her surety, who paid the succeeding trustee, took an assignment of the rights of the trust estate against Janet Jones and demanded that the trustee pay to it all the income, past, present and future, which the trust instrument gave to such beneficiary. The trustee brought this action for instructions. Held, as the trust estate …
Executors And Administrators - Comparison Of Nonclaim Statutes And The General Statutes Of Limitations, Dan K. Cook
Executors And Administrators - Comparison Of Nonclaim Statutes And The General Statutes Of Limitations, Dan K. Cook
Michigan Law Review
An overwhelming majority of the states possess nonclaim statutes, which, in one form or another, purport to bar all claims against decedent's estates not presented to the decedent's personal representative within a stipulated period. It is the purpose of this comment to compare such statutes with the general statutes of limitations, giving particular regard to those situations where the operation of the two types of statute upon one cause of action may appear to conflict.
Wills - Right Of Assignee Of An Expectancy To Contest The Probate Of A Will, Ralph Winkler
Wills - Right Of Assignee Of An Expectancy To Contest The Probate Of A Will, Ralph Winkler
Michigan Law Review
The plaintiff filed a bill in equity to set aside the probate of a will which disinherited the testator's heir apparent. The plaintiff alleged that the will was void because of undue influence and the testator's incompetency and that his right to contest was based on an assignment by the heir apparent of his interest in his living ancestor's estate as security for a loan. Held, the plaintiff received no interest in the testator's estate by the assignment and therefore is not a proper contestant within the statute. Burk v. Morain, (Iowa, 1937) 272 N. W. 441.
Specific Performance - Contract To Make A Will - Right To Specific Relief For Breach Where Promisee Predeceases Promisor, Elbridge D. Phelps
Specific Performance - Contract To Make A Will - Right To Specific Relief For Breach Where Promisee Predeceases Promisor, Elbridge D. Phelps
Michigan Law Review
In September, 1930, Cornelius Powell died testate, leaving certain personalty absolutely to his wife, Elizabeth Powell, and devising certain realty to her for life, with a remainder over to his son, Clifford S. Powell. Subsequently, Elizabeth and Clifford entered into a written agreement whereby, in consideration that Clifford would convey all his interest in said realty to her, Elizabeth agreed to execute a will giving to Clifford "at her death all of the property then owned by her, whether real, personal, or mixed." Pursuant to this agreement, the requisite instruments were duly executed. On October 31, 1932, Clifford S. Powell …
Trusts - Constructive Trusts - Breach Of Fiduciary Relation Between Husband And Wife With Respect To Oral Agreement Concerning Land
Michigan Law Review
In her last illness, Mrs. Jackson desired to transfer realty to her married daughter, plaintiff herein. To prevent creditors of the daughter's husband from reaching the property, Mrs. Jackson conveyed the land to her husband, Mr. Jackson, with the parol understanding that "he would see that Cora got it." Jackson failed to transfer the land and upon his death it passed under an ante-nuptial settlement to defendant, his second wife. In an action to recover the land, the court stated that defendant was in the position of a bona fide purchaser for value, and held that the statute of frauds …
Gifi's Causa Mortis - Validity Of Gift Of Entire Estate
Gifi's Causa Mortis - Validity Of Gift Of Entire Estate
Michigan Law Review
A donor, being in extremis, told by a doctor that he was dying, and having no near relatives, gave three bunches of keys to a donee with whose family he had lived for ten years, with the statement, "'If I am going to die, everything I have belongs to this woman." This was held to be a valid gift causa mortis of so much of decedent's property as was thereby made available. In re Elliott's Estate, 312 Pa. 493, 167 Atl. 289 (1933).
Wills And Administration - Jurisdiction Over The Probate Of Lost Or Destroyed Wills
Wills And Administration - Jurisdiction Over The Probate Of Lost Or Destroyed Wills
Michigan Law Review
Under Mich. Comp. Laws (1929), sec. 15547, a will lost, suppressed or destroyed may be admitted to probate upon its being established in a prescribed manner in the probate court. And under sec. 15543 no will is effectual to pass title to property unless probated as required by law. Plaintiff coal company, apparently under the direction of its manager, King, filed a bill of interpleader for a judicial determination as to whether it should pay rent as lessee of certain property to the administrator of the estate of the deceased lessor, or to King, who claimed as devisee of the …
Certain Problems Confronting Creditors When A Revocable Trust Accomplishes Testamentary Succession, Ray Leslie Alexander
Certain Problems Confronting Creditors When A Revocable Trust Accomplishes Testamentary Succession, Ray Leslie Alexander
Michigan Law Review
Under the overwhelming weight of authority the reservation by the settlor of the income from trust property, or of other benefits, during his lifetime, and of the power to revoke the trust and so recover all or any part of the principal does not invalidate the trust; nor does the trust fail because the trust instrument is not executed in accordance with the Statute of Wills. Upon the death of the settlor the corpus of such a trust is distributable by the trustee in accordance with the terms of the trust instrument and does not pass to the executor or …
Torts - Fraud - Spoliation Of Will
Torts - Fraud - Spoliation Of Will
Michigan Law Review
In a suit in tort for damages, plaintiff alleged that defendant, heir-at-law of the decedent, suppressed a genuine will under which the plaintiff was devisee, and forged and fraudulently probated a will which did not contain the devise to the plaintiff who remained in ignorance of both the fraud and the existence of the genuine will for more than twenty years. The defendant demurred. Held, that the plaintiff has a cause of action in tort. Morton v. Pettit, 38 Ohio App. 348, 176 N.E. 494 (1930), aff'd., (Ohio 1931) 177 N.E. 591.
Estates-Tenancy By Entireties--Ability Of Judgment Creditor To Reach Tenant's Interest
Estates-Tenancy By Entireties--Ability Of Judgment Creditor To Reach Tenant's Interest
Michigan Law Review
Shortly after the plaintiff's judgment had been docketted and a fruitless attempt made to have it satisfied, the defendant and his wife became devisees of some land, holding it as tenants by entireties. Knowing his wife to be in poor health and fearing he might survive her, the defendant persuaded her to join in a conveyance to their granddaughter for only a nominal consideration. Both women were unaware of the defendant's real motive, but the defendant himself understood the effect of what he was doing and was anxious to place the land beyond the plaintiff's reach. Held, that the …
Trusts-Resulting-Conveyance To Voluntary Grantee To Defraud Creditors
Trusts-Resulting-Conveyance To Voluntary Grantee To Defraud Creditors
Michigan Law Review
The plaintiff and the defendant, husband and wife, were tenants by the entireties in certain real estate. Fearing an action by a supposed creditor against the husband, they conveyed without consideration to a third person who subsequently conveyed to the wife. This was done on the advice of counsel. There was an oral understanding between the plaintiff and the defendant at the time of this conveyance that the husband's interest should be reconveyed in the same roundabout manner after any danger of suit had passed. Due to wise investments on the part of the wife this property became very valuable. …
Trusts - Cancellation - Beneficiaries As Necessary Parties
Trusts - Cancellation - Beneficiaries As Necessary Parties
Michigan Law Review
The plaintiff deeded property to the defendants in trust, for herself for life and on her death to certain named persons. Plaintiff sued the defendants alone for revocation on the ground of fraud and duress. Held, the issue of fraud could not be tried in the absence of the living cestuis. McKnight v. Bank of N. Y. & Trust Co., 254 N. Y. 417, 173 N.E. 568.
Recent Important Decisions
Michigan Law Review
A collection of recent important court decisions.