Law Commons^™

The Probate Definition Of Family: A Proposal For Guided Discretion In Intestacy, Susan N. Gary

University of Michigan Journal of Law Reform

Intestacy statutes may not match the wishes of many people who die intestate. Changes to the Uniform Probate Code (UPC) include or exclude potential takers, as the drafters attempt to bring the UPC provisions closer to the intent of more intestate decedents. As the UPC tries to fine-tune the intestacy statutes, however, family circumstances continue to get more and more complicated. Families headed by unmarried couples, blended families with children from multiple marriages, and families in which adults raise children who are not legally theirs, have become commonplace. For some decedents, non-family friends and caregivers may be more important than …

Toward Equality: Nonmarital Children And The Uniform Probate Code, Paula A. Monopoli

University of Michigan Journal of Law Reform

This Article traces the evolution of the Uniform Probate Code's (UPC) broad equality framework for inheritance by nonmarital children in the context of the wider movement for legal equality for such children in society. It concludes that the UPC is to be lauded for its efforts to provide equal treatment to all nonmarital children. The UPC's commitment to such equality serves an expressive function for state legislatures and courts to follow its lead. The UPC has fulfilled its promise that all children regardless of marital status shall be equal for purposes of inheritance from or through parents, with one exception: …

Children Of Assisted Reproduction, Kristine S. Knaplund

University of Michigan Journal of Law Reform

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is …

The Twentieth-Century Revolution In Family Wealth Transmission, John H. Langbein

Michigan Law Review

The main purpose of this article is to sound a pair of themes about the ways in which these great changes in the nature of wealth have become associated with changes of perhaps comparable magnitude in the timing and in the character of family wealth transmission. My first theme, developed in Part II, concerns human capital. Whereas of old, wealth transmission from parents to children tended to center upon major items of patrimony such as the family farm or the family firm, today for the broad middle classes, wealth transmission centers on a radically different kind of asset: the investment …

Uniform Probate Code--Illegitimacy--Inheritance And The Illegitimate: A Model For Probate Reform, Michigan Law Review

Michigan Law Review

The Uniform Probate Code (Code), which was approved by the American Bar Association in August 1969, deals with the problem of inheritance by illegitimates both with regard to intestate succession-section 2-109-and also with regard to the construction of a bequest to "children" by will-section 2-611. This Note will examine the issue whether the Code, which presents a comprehensive model for probate reform, deals with the problem of inheritance by illegitimates in an appropriate, desirable, and constitutional manner. The Code provisions concerning illegitimacy relate to many other provisions of the Code in which childhood status is relevant; therefore, it will be …

Through A Test Tube Darkly: Artificial Insemination And The Law, George P. Smith Ii

Michigan Law Review

A surge of interest and direct involvement with artificial insemination has interposed complicated and presently unsolved legal, social, cultural, religious, emotional, and psychological problems. It is not the purpose of this Article to undertake an exegesis of these interrelated areas or their ramifications. Central consideration, instead, is given to the special legal problems of adultery, illegitimacy, and support and inheritance manifest in any discussion of artificial insemination.

Trusts - Validity And Effect Of Assignment Of Beneficial Interest In Trust For Support - Claims Of Beneficiary's Divorced Wife And Children, William E. Parmenter Jr.

Michigan Law Review

A testamentary trust required the trustee to apply income in such amounts as might be necessary for the education, support and maintenance of H until he attained the age of 35 years; then to hand over the corpus and accrued interest. Contingent interests were created for children of H who might survive his death before the age of 35. After the death of testatrix, H married W and had two children. In an agreement subsequently incorporated in a California decree of divorce obtained by W, H promised to make monthly payments to W for her own support and for the …

Trusts And Estates - Relationship By Affinity-Meaning Of The Word "Stepchild" In A Tax Statute, Harold S. Lentz S. Ed.

Michigan Law Review

A widower with two children married Sarah Bordeaux and predeceased her. A child of the marriage died in infancy. The two children were raised by Sarah as if she had been their natural mother. A strong filial relationship developed, and at the death of Sarah in 1949, the bulk of her property passed to the two children by will. The inheritance tax division of the tax commission contended that the relationship by affinity had been terminated and that the children, no longer being "stepchildren," were not entitled to the lower tax rates under Class A of the inheritance tax statute …

Wills-Construction-Use Of Extrinsic Evidence, John A. Hellstrom S. Ed.

Michigan Law Review

An action for a declaratory judgment was brought by William C. Borah, Jr. against the Lincoln Hospital Association and William H. H. Moore. In July 1912, Robert E. Moore made a will bequeathing $10,000 each to his nieces, Gertrude and Julia Byerly. Gertrude had been married but her husband and only child died in 1908. Julia was married and had a son, the plaintiff. In June 1916, testator visited the nieces and the plaintiff and in December 1916, he added a codicil to his will reducing the bequests to the nieces to life estates with remainder to "the child of …

Taxation-Estate Tax-Reservation Of Power To Amend Trust, Samuel N. Greenspoon S.Ed.

Michigan Law Review

Settlor executed a trust indenture in 1915 whereby a trust was established for the benefit of his three minor children. Income was to be accumulated for the benefit of the three children until they respectively attained majority, and provision was made for the death of any child under 21 without surviving issue. The settlor then reserved "the power from time to time by an instrument in writing signed by me to amend this trust instrument so that it will more clearly express my actual intentions if I shall consider such amendments advisable, as to which I shall be the sole …

Future Interests-Parties-Unborn Persons-Virtual Representation, A. E. Anderson S.Ed.

Michigan Law Review

Testator devised land to his six children for life with provision for a division into six equal parcels, and with remainder over to each life tenant's surviving issue. Subsequently, four of the life tenants brought an action against the other two life tenants and the three children of the life tenant then living, and obtained a decree ordering a sale of the land, and requiring each life tenant to file a bond conditioned that he safely keep such portion of his share of the proceeds as would be necessary to, protect the interests of any after-born child. The vendee gave …

Real Property-Tenancy By Entireties-Estate Created By Parol Gift Followed By A Voluntary Settlement, Ralph J. Isackson

Michigan Law Review

Prior to his death in 1892, X made a parol gift of 60 acres in a 360 acre tract to his daughter, W, or to W and her husband, H, and put them into actual possession but gave them no deed to the land. No evidence was shown to indicate that either W or H had paid the taxes or made any improvements on the land during X's lifetime. X died intestate and left surviving him five children, including W. All the heirs, except W, conveyed the 60 acre tract to W and H in …

Future Interests--Effect On Contingent Remainders Of Widow-Life Tenant's Election To Take Against A Will, Niel Mckay S.Ed.

Michigan Law Review

Testator devised one half of the income from an undivided one-third interest in certain real estate to the defendant, his wife, and provided that on her death the undivided one-third interest was to go to his brother and sister, plaintiffs here, if living, otherwise to his children in a certain named order if living. The defendant, testator's widow, elected to take her statutory share against the will, and the county court decreed her a one-half interest in the undivided one third, the other one-half interest going to the plaintiffs. Plaintiffs, also having title to the other two thirds of the …

Trusts - Division Of Proceeds From United States Savings Bonds Between Life Tenant And Remainderman, William H. Shipley

Michigan Law Review

Testator devised the residue of his estate in trust to pay the income to his wife for life and on her death to distribute the corpus to the children of the testator. The trustee bought ten-year bonds of the United· States Government known as United States Savings Bonds. The bonds did not bear interest payable at stated intervals, but were sold at a price sufficiently below their maturity value to yield a return equal to 2.9 per cent per annum, compounded semi-annually, it the bonds were held for the full ten years. The holder of such bonds may present them …

Taxation - Gift Tax - Each Beneficiary Of Trust As Donee For Purpose Of Exemption Provision, Alfred I. Rothman

Michigan Law Review

In 1935, the donor created a trust for the benefit of seven children. The donor in her gift tax return, pursuant to section 504b of the Gift Tax Act, excluded from the taxable amount $5,000 for each child. The commissioner's action in treating the trustee as the donee and in allowing a single deduction of $5,000 was sustained by the Board of Tax Appeals. The circuit court of appeals reversed. Held, that the taxpayer was entitled to seven deductions, one for each beneficiary under the trust. Helvering v. Hutchings, (U.S. 1941) 61 S. Ct. 653.

Contracts - Consideration - Moral Obligation To Pay For Services Rendered In Past, Michigan Law Review

Michigan Law Review

After decedent's wife died, claimants, her mother and sister, at the request of the decedent, broke up their home and came to live with him, to keep house for him and to care for his children. These services continued for ten years, at which time the decedent gave claimants his promissory notes aggregating $2,000. They entered these notes as claims against his estate. Held, the claimants' services, even if rendered gratuitously, were performed at the decedent's request and raised a moral obligation which was sufficient consideration for the notes. In re Schoenkerman's Estate, (Wis. 1940) 294 N. W. …

Deeds - Construction - Executory Interests - Destructibility Rule, Michigan Law Review

Michigan Law Review

In 1883, the grantor conveyed by warranty deed to A for life, remainder to the heirs of B. A died in 1931; B died in 1935, leaving two children and one grandchild as his heirs-at-law. Claiming an undivided one-third through the grandchild, plaintiff started partition proceedings against B's children. Held, that the intent of the grantor must control, and he did not intend to create a contingent remainder in the heirs of B. The deed was a bargain and sale, adapted to a conveyance to uses. On the death of the life tenant, the fee was …

Trusts - Termination By Consent Of Beneficiaries - Who Are Beneficiaries - Acceleration Of Equitable Remainders, Richard S. Brawerman

Michigan Law Review

It is the purpose of this comment to consider the destructibility of trusts for successive beneficiaries where the settlor has not expressed his intention with respect to the matter. It will appear that two questions are involved: First, what is the settlor's purpose for the trust? Second, who are beneficiaries?

Wills - Construction - Meaning Of "Issue" In Testamentary Gifts, Daniel Hodgman

Michigan Law Review

Two recent cases illustrate a trend in the judicial construction of the word "issue" in wills which seems to be divergent from the view expressed in the older cases.

In Re Thompson's Estate there was a bequest to A and B for their lives and at the death of the survivor "one half thereof to the living issue of each daughter, if there then be such issue of each, whether of the first or succeeding generations." At the death of the survivor there were six children of A and two grandchildren, issue of living children, and there were two children …

Taxation-Income Tax-Discretionary Application Of Income Of Irrevocable Trust To Maintenance Of Settlor's Children-Taxability To Settlor, Benjamin H. Dewey

Michigan Law Review

Settlors, husband and wife, established certain irrevocable trusts with themselves and another as trustees, and the children of the settlors as beneficiaries. The income from the trust property was to be accumulated, and a certain percentage of the corpus and accumulated income was to be distributed to the beneficiaries as they respectively reached certain specified ages. The trust agreement further provided that the trustees should have the power to expend from the corpus or income such sums as they should deem necessary and advisable for the maintenance, education and support of the beneficiaries, or to defray expenses arising from sickness, …

Taxation - Validity Of Retroactive Inheritance Tax On Contingent Trust Remainders, Francis T. Goheen

Michigan Law Review

In 1877 the settlor created an irrevocable trust with reservation of the income for life. Under the terms of the trust deed, on the death of the settlor, the income was to be paid for twenty years after the settlor's death "to and among such of" settlor's children as may be living at the time of the payment. The living issue of deceased's children were to take by right of representation. On the death of the settlor in 1931 the state of Massachusetts by statute enacted in 1907 taxed the remainder as property passing by deed "intending to take effect …

Trusts - Restraints On Alienation - Ability Of A Divorced Wife To Reach The Corpus Of A Spendthrift Trust For Alimony Claim

Michigan Law Review

Testator placed the residue of his estate in trust, and, after making provision as to one-third of the principal and income for his widow, left the remaining two-thirds to his children, or their children by right of representation, the net annual income to be paid to them in convenient installments for twenty years after his death, the principal share of each to be transferred in four as nearly equal installments as possible at five-year intervals. By a codicil, executed after plaintiff, the wife of one of testator's sons, had announced her intention of securing a divorce, it was provided that …

Future Interests - Rule In Shelley's Case - Where Remainder To Heirs Is "Contingent"

Michigan Law Review

A grantor conveyed premises to his daughter and her husband "For and during their lifetime, then to the heirs of the body of our daughter, Henrietta Ann Briegel, and if she leaves no child or children surviving her, then to her heirs according to law." Henrietta died without ever having had children and devised all her property to her husband, defendant herein. Plaintiff as heir at law of Henrietta brought suit for partition. Held, the remainders created were contingent with a double aspect. The rule in Shelley's case does not apply where the remainder in the heirs is contingent. …

The Meaning Of "Heirs" In Willsa Suggestion In Legal Method, Lewis M. Simes, Lorentz B. Knouff, George E. Leonard Jr.:

Michigan Law Review

A major task of the lawyer is the prediction of judicial action. No less than a quarter of a century ago Justice Holmes referred to the law as a body of "systematized prediction." Today legal scholars are not content to base their predictions solely upon the body of rules announced in judicial opinions. By means of elaborate fact studies they have sought to ascertain how rules of law actually function in society. Not only have these studies dealt with problems of procedure and the administration of courts, they have also invaded the fields of commercial and property law. Among such …

Descent And Distribution-Release Of Expectancy-Effect

Michigan Law Review

The testator owned an undivided interest in two sections of land. Upon his death the heirs made an agreement whereby five of the children (the plaintiffs) and the widow quitclaimed their interest in the one section to the remaining two children (the defendants) who in return quitclaimed their interest in the other section to the plaintiffs and widow. It was further agreed that, upon her death, the defendants were not to share in the distribution of her interest in the land. In disregard of this agreement, however, the defendants claimed a proportionate interest. It was held, in Heinrich v. …

Perpetuities-Exercise Of General Testamentary Power Of Appointment Creating Perpetuity-Effect On Prior Gift Of Failure Of Gift Over

Michigan Law Review

A, by a will which created a trust of realty and personalty, gave B a life interest with a general power to appoint by will. B exercised this power in her will, appointing to her children for life with other remainders to B's grandchildren. Held, remainder to the grandchildren is void for remoteness, since the period allowed by the rule against perpetuities is calculated as though B's appointment were incorporated in A's will. Interests of B's children are uneffected by the failure of the gift to the grandchildren. Equitable Trust Co. v. Snader (Del. Ch. 1930) 151 Atl. 712.

Wills-Gifts To Named Beneficiaries And To A Class-Per Stirpes Or Per Capita

Michigan Law Review

Action by an executor for the construction of a will in which the testator had given a gift to certain of his children, naming them, and to two sets of grandchildren one of which was the offspring of a child, deceased at the time of the execution of the will. The gift provided that they were to participate "share and share alike." In two subsequent clauses of the will the testator provided for trustees to take care of the "portion" left to the grandchildren. The court held, that a sufficient intent was shown so as to justify a distribution …

Taxation-Transfer Tax On Death Of Settlor Of Trust Wherin Income Was Reserved

Michigan Law Review

Section 401, Revenue Act of 1918 provided that in order to determine the transfer tax, there should be included in the gross estate "any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death * * *." The decedent transferred to her husband and others, as trustees, securities in trust to collect the income and pay the balance after discharging expenses to the husband for life, after …