Estates and Trusts Commons^™

Trusts - Jurisdiction - Trustee And Trust Assets Outside Jurisdiction Of Forum, Richard J. Riordan

Michigan Law Review

The purpose of this comment is to examine these rationales and determine their validity--first as to testamentary trusts and then as to inter vivos trusts.

Wills - Construction - Conditional Wills, Richard Rosenthal

Michigan Law Review

Testator executed a holographic will immediately prior to departing on an intended journey abroad. The will, making a friend and creditor his sole beneficiary, provided, "This is my will if I should die on this my trip to India You are my sol heiress." Although the trip was postponed, it was never abandoned. Testator subsequently repaid a substantial part of his debt to the beneficiary. Soon thereafter, testator died without having made the journey. His will was contested by his widow and brother. On remand to the surrogate's court from the court of appeals, held, the will is conditional …

Wills - Execution - Attestation, Max H. Bergman

Michigan Law Review

Prospective witnesses to a will saw the testatrix standing in an adjoining room engaged in writing. Soon thereafter, the testatrix asked them to come in and sign a paper. Her name had already been written on the document, and she neither signed it in the witnesses' presence nor in any manner indicated the writing to be her will. The witnesses read enough of the document, however, to know it was a will, before subscribing it in the presence of the testatrix and one another. Three of the testatrix' sons objected to the probate of the will on the ground that …

Dispositions Of Property To Unincorporated Non-Profit Associations, Harold A.J. Ford

Michigan Law Review

It now becomes necessary to examine the cases in which the disposition could not be treated as one to the existing members. This treatment will disclose that some courts have been prepared to regard some dispositions to associations as being for the purposes of the association. The only way in which property may be devoted to a purpose without conferring beneficial interests on particular individuals is by a trust. Accordingly in many instances the disposition takes effect as a trust.

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.

Transfers Of Joint Property In Contemplation Of Death: A Call For Immediate Statutory Revision, L. Hart Wright

Michigan Law Review

For years the Tax Court sided with the government and the Court of Appeals for the Third Circuit in asserting that the contemplation-of-death provision of the estate tax act was sufficiently elastic to include the tax concept of ownership reflected in the joint-property provision of the same act. The alliance between those tribunals on this point was recently broken, however, when the Tax Court shifted to the competing view supported by taxpayers and the appellate court for the Ninth Circuit. It now believes that the two provisions mentioned above are complete strangers even though at one time these two were …

The Martial Deduction And Equalization Under The Federal Estate And Gift Taxes Between Common Law And Community Property States, Paul E. Anderson

Michigan Law Review

In 1948, as the culmination of much dissatisfaction with the treatment of community property under the federal estate and gift tax laws, Congress adopted a new formula for the treatment of gifts and bequests between spouses; this formula was known as the marital deduction. It has remained practically unchanged since its adoption and still stands as an integral part of our federal estate and gift tax structure.

The basic purpose of the deduction was to provide equalization in estate and gift tax treatment between spouses residing in community property states and those residing in common law property states. The plan …

Descent And Distribution - Effect Of Advancements, Debts And Releases When Expectant Distributee Predeceases Intestate, Eric E. Bergsten

Michigan Law Review

The law of advancements is part of the law of intestate succession. But the right of retainer, which allows an offset against a distributee's share of the estate for a debt owed by the distributee to the decedent, is merely a method of debt collection and historically has not been considered as a part of the law of inheritance. For this and other reasons, the law applicable to advancements in this situation is better treated separately from that concerning debts of predeceased expectant heirs. There are also sufficient differences between the treatment given a release and that of either an …

Conflict Of Laws--Effect Of Forum's Statute Of Frauds On Foreign Oral Contract To Bequeath Property, David D. Dowd, Jr. S.Ed.

Michigan Law Review

Plaintiff brought an action in New York for specific performance of an oral agreement allegedly made by testator in Florida not to change his will without plaintiff's consent. Defendant's motions for dismissal of the complaint and summary judgment were dismissed. The appellate division on reargument entered orders reversing the lower court. On plaintiff's appeal to the court of appeals, held, affirmed. The New York Personal Property Law, which states that oral contracts to bequeath property are void, is controlling, regardless of whether this section of the statute of frauds is procedural or substantive. If the section is procedural, the …

Future Interests-Powers-Legal Consequences Of A Life Estate With A Power Of Disposition Under The New York Type Powers Statute, Richard W. Young S.Ed.

Michigan Law Review

Testatrix devised certain property to her husband "to be used and enjoyed by him with the right to sell and dispose of same and use so much thereof, either principal or income, as he may desire during his lifetime.'' Any property or the proceeds thereof remaining at his death was to be distributed equally to named takers, children of the testatrix. Successors of the remaindermen brought an action for ejectment and to quiet title against persons claiming under conveyances from the life tenant, the plaintiffs contending that these conveyances were made without consideration and could not operate to cut off …

Trusts - Life Insurance Trusts - Contingent Unfunded Life Insurance Trust As Testamentary Disposition, Jerome K. Walsh Jr.

Michigan Law Review

Settlor named defendant bank beneficiary of eight insurance policies on his life. At the same time he entered into a trust agreement with the bank under which the bank was to hold the policies until the death of the settlor and, upon his death, collect the proceeds and distribute them according to one of two alternate methods of distribution. If his wife elected to reject the provisions made for her in his will and insisted on her statutory share of his estate, then the insurance proceeds were to be divided info four equal parts and paid to his four daughters. …

Determination Of Heirship, Paul E. Basye

Michigan Law Review

Nearly a hundred years have elapsed since the Supreme Court emphatically voiced its conviction as to the necessity of having some method for making a final determination concerning the devolution of the ownership of property upon the death of its owner.

Securities - Inter Vivos Gifts To Minors, Stephen C. Bransdorfer S.Ed.

Michigan Law Review

A statute recently enacted in twelve states and expected to be considered by seven other states this year, authorizes a new method for making gifts of securities to minors and for administering such gifts. The statute provides: (1) that irrevocable gifts of securities may be made to minors by use of statutory registration or deed of gift forms; (2) for the creation of a new type of fiduciary termed a custodian; (3) that the custodian shall have powers and duties over the minor's securities including authority to manage, sell, reinvest the proceeds from the sale and administer the securities for …

Rule Against Perpetuities - Recent Legislation In Massachusetts, Maine And Connecticut, David W. Swanson S.Ed.

Michigan Law Review

Three very significant statutes dealing with the rule against perpetuities and containing identical language in their important provisions have recently been passed in Massachusetts, Maine, and Connecticut. There are three basic provisions. (1) In applying the rule against perpetuities to an interest limited to take effect at or after the termination of one or more life estates in, or lives of, persons in being when the period of the rule begins to run, the validity of the interest shall be determined on the basis of the facts existing at the termination of the life estates or lives. (2) If any …

Future Interests - Trusts - Time For Ascertainment Of Heirs After Life Estate In Trust With Unexercised Power Of Appointment And No Gift In Default, Edward A. Manuel

Michigan Law Review

The testator set up a testamentary trust for the benefit of his wife for life and gave her a general testamentary power to appoint the remainder in fee. No gift in default was provided. The life beneficiary died without exercising the power. On petition by the trustee for directions for the final distribution- of the trust property, the trial court held that the property went to those who were the heirs of the testator at the time of his death. On appeal, held, reversed, two judges dissenting. The trustees took full title to the trust property and no interest …

The Wills Branch Of The Worthier Title Doctrine, Joseph W. Morris

Michigan Law Review

It is the purpose of this article to examine the history and origin of the wills branch of the worthier title doctrine, to ascertain the extent of its application and the manner of its application, to determine the legal consequences flowing therefrom, and to consider the desirability of its continued existence.

Simes: Public Policy And The Dead Hand, W. Barton Leach, John H.C. Morris

Michigan Law Review

A Review of PPublic Policy and the Dead Hand. The Thomas M. Cooley Lectures, Sixth Series. By Lewis M. Simes.

Descent And Distribution - Ancestral Property - Exclusion Of Next Of Kin Other Than Half Bloods, George F. Lynch

Michigan Law Review

The decedent died intestate owning land which he had inherited from his father. His only next of kin were four blood aunts and uncles on his mother's side, and three blood aunts and uncles on his father's side. The paternal aunts and uncles contended that the land descended to them alone by virtue of a section of the Alabama code, which provides: "There is no distinction made between the whole and the half blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift, from or of some one of his ancestors; in which …

Wills - Religious Conditions In Restraint Of Marriage - Validity At Common Law And Effect Of Shelley V. Kraemer, Jack G. Armstrong S.Ed.

Michigan Law Review

Testator devised and bequeathed his property to his children, but with a proviso that the gift to any child who should marry a person not born in the Hebrew faith should lapse. Subsequent to the testator's death, the defendant married a woman who had been born a Roman Catholic. The other beneficiaries brought a proceeding to declare that the defendant had lost his rights under the will by reason of his marriage. The probate court granted a decree substantially as sought by the plaintiffs. On appeal, held, affirmed. This partial restraint on marriage is not so unreasonable as to …

Taxation - Inheritance Tax - Transfers Subject To Take Effect At Or After Death, Harvey A. Howard S.Ed.

Michigan Law Review

Decedent was a participant in a company profit-sharing savings and retirement trust. Under the terms of the plan, the company made deposits with a trustee on an annual basis and relinquished the right to recapture or impair the fund for its own use or benefit. The contributions were to be held for ten years with accrued interest, and then were to be distributed to the employees in three annual instalments. Should an employee leave the company, he was entitled to his share in three instalments; in the event of retirement or illness he was to receive his entire share in …

Constitutional Law - Freedom Of Religion - Judicial Intervention In Disputes Within Independent Church Bodies, Julius B. Poppinga S.Ed.

Michigan Law Review

It is the purpose of this comment to set forth the several principles applied by courts in determining controversies in independent church groups and to consider the constitutional implications of judicial intervention.

Wills - Ademption - Sale Of Property By Guardian Of Physically Incompetent Testator, David W. Swanson S.Ed.

Michigan Law Review

By a will executed in 1950, testator devised his undivided one-half interest in his home to his wife in fee simple. A year · later and with his consent, the probate court appointed a guardian for him on the ground of physical incompetency. In 1952 the guardian sold the devised property under court order, at which proceeding the testator was properly before the court, was consulted, and agreed to the sale. A small portion of the proceeds was used for the support of the testator but $7271 remained at his death five months later and was turned over to his …

Trusts - Spendthrift Trusts - Reduction In Income As Justification For Termination In Favor Of Beneficiary, Norman A. Zilber S.Ed.

Michigan Law Review

Testatrix died in 1913 leaving a will which established a $20,000 spendthrift trust. The income from this trust was to be paid to her son for life with the remainder, in default of issue and the exercise of a general testamentary power of appointment, to go to the other descendants of the testatrix then living. The stated purpose of the trust was to assure her son of "a support throughout his . . . whole life, under any circumstances.'' The son, 65 years old and without issue, sought to terminate the trust on the ground that he was about to …

Real Property - Elimination Of The Straw Man In The Creation Of Joint Estates In Michigan, Edward H. Hoenicke S.Ed.

Michigan Law Review

That joint ownership is a popular form of holding title to real property is undeniable. A husband and wife are especially likely to consider this form of ownership as "natural" and desirable because it emphasizes the concept of marriage as a partnership and gives both partners control over and ownership in the family property. In addition to these factors, joint ownership is popular because of the right of survivorship which is incident to it. In this feature the layman sees, or thinks he sees, the opportunity to avoid a probate proceeding, the estate tax, and the lawyer's fee. It is …

Wills - Revocation By Change In Circumstances - Effect Of A Separation And Property Settlement Agreement, Paul R. Haerle

Michigan Law Review

Testator's will, executed in 1944, named his wife executrix and sole devisee. One month before his death in 1952 he entered into a detailed separation and property settlement agreement with her in which, though not referring directly to the will, the wife released any present, future or after-acquired interest in the same realty as was devised in the will. The widow's offering of the will for probate was contested by the heirs. The lower court directed a verdict for the contestants on the ground that the agreement operated to revoke the will. On appeal, held, reversed. Since neither a …

Taxation - Federal Income Taxation - Problems Created By The Complex Trust Provisions Of The 1954 Code, Harvey A. Howard S.Ed.

Michigan Law Review

This comment will not be expository of all of the trust provisions but rather will attempt to deal with some of the more important interpretative difficulties likely to be encountered in the new law involving the taxation of the income of those trusts which may accumulate income, distribute corpus, or pay or set aside amounts for charitable purposes. It will be assumed that the reader is familiar with the basic statutory pattern of the trust sections of the new code.

Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: Ii, Bertel M. Sparks

Michigan Law Review

After there has been a contract to make a will it is often said that the promisor is a trustee of the property for the use of the promisee. This statement is usually offered as a reason for or an explanation of the relief granted in a particular case, without any indication as to how such a premise was arrived at and without any consideration of other possible results that might How from the designation of the relationship as a trust.

Legal Effect Of Contracts To Devise Or Bequeath Prior To The Death Of The Promisor: I, Bertel M. Sparks

Michigan Law Review

Questions involving the rights, duties, powers, privileges, and immunities of parties to contracts to devise or bequeath are frequently raised prior to the death of the party promising to make the devise or bequest. In essence the problem is one of analyzing the legal relationships existing prior to the date set for performance. An analysis of these relationships is undertaken in this article. Vital questions concerning the formation of such contracts and their enforcement after the promisor's death are considered only when they appear essential to the development of the main theme which concerns the contract's effect prior to the …

Descent And Distribution - Distribution To A Nonresident Alien Prevented By State Staute, Eugene Alkema S.Ed.

Michigan Law Review

Decedent's sole heirs were residents of Poland. By virtue of a power of attorney executed and authenticated in Poland, the Polish consul general intervened to receive their distributive shares. A Massachusetts statute provided that a court may order the distributive share to be deposited for the benefit of nonresidents when it appears that they "may not receive or have opportunity to obtain" such money. Held, the distributive shares must be kept in Massachusetts as it is uncertain that residents of Poland presently could have full benefit of the funds if transmitted. Petition of Mazurowski, (Mass. 1954) 116 N.E. …

Creation Of Joint Rights Between Husband And Wife In Personal Property: Ii, R. Bruce Townsend

Michigan Law Review

The net effect of the general legislation pertaining to the creation of joint tenancy has been to make lawyers sensitive to language expressing an intent to create joint tenancy, tenancy by the entireties and other types of survivorship rights which may or may not fall within the foregoing concepts. And so the law has busied itself with the task of giving technical meanings to words used by members of the public in their efforts to create joint rights in property-a task that has not been fully appreciated by people who acquire personal property from bankers, brokers, clerks and the like …