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Michigan Law Review

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Full-Text Articles in Estates and Trusts

Trusts-Revocation-Tentative Trusts, Wendell B. Will S.Ed. May 1952

Trusts-Revocation-Tentative Trusts, Wendell B. Will S.Ed.

Michigan Law Review

Deceased deposited money in a saving account entitled, ''Deceased in trust for Plaintiff," and made several deposits and withdrawals. Shortly after the initial deposit she informed the plaintiff of the existence of the account. By a subsequent will deceased left her entire estate to the defendant under circumstances evidencing an intention that the funds in the account not go to the plaintiff. On appeal, held, reversed for defendant. A deposit in such form creates a tentative trust which is not made irrevocable by notice to the beneficiary and which may be revoked by a subsequent will. Brucks v. Home …

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Restraints On Alienation Of Legal Interests In Michigan Property: Ii, William F. Fratcher Apr 1952

Restraints On Alienation Of Legal Interests In Michigan Property: Ii, William F. Fratcher

Michigan Law Review

"Estate for life" is a generic term embracing interests in land of several types. The duration of such an estate may be measured by the life of the tenant himself, by the life of some other person, by the joint lives of a group of persons (i.e., the life of the member of the group who first dies), or by the life of the survivor of a group of persons. In the last two cases the tenant himself may or may not be a member of the group. When the duration of the estate is measured by the life of …

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Wills-Integration, Robert L. Sandblom S.Ed. Apr 1952

Wills-Integration, Robert L. Sandblom S.Ed.

Michigan Law Review

The requirement of formal attestation in the English Statute of Frauds of 1678 and the Statute of Wills of 1837 gave rise for the first time to the necessity of placing all testamentary dispositions in a single document. Prior to these statutes, all that had been necessary was that wills be in writing and exhibit the testamentary intent of the author. Therefore, plural writings, however inconsistent or fragmentary they might have been, were necessarily parts of the will to be given effect. No rules for integration were needed under such loose requirements of execution. Attestation under the Statute of Frauds …

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Fiduciary Administration-Executors And Administrators-Death Of Widow As Affecting Amount Of Her Allowance, Warren K. Urbom Apr 1952

Fiduciary Administration-Executors And Administrators-Death Of Widow As Affecting Amount Of Her Allowance, Warren K. Urbom

Michigan Law Review

A widow survived her husband by three months and thirteen days. Subsequent to the death of both, appraisers of the husband's estate set off to his widow $750 as her year's allowance. Executrix of the widow's estate filed an exception to the allowance and made application to increase the amount on the ground that the sum given would have been insufficient if the widow had lived the full year. Granting the application, the probate court found that a reasonable allowance based on twelve months would be $5000, The court of appeals reversed, holding that the allowance should be based on …

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Trusts-Illusory Transfer-Rights Of Surviving Spouse, Carl S. Krueger Mar 1952

Trusts-Illusory Transfer-Rights Of Surviving Spouse, Carl S. Krueger

Michigan Law Review

ln 1939 Henry Halpern drafted a will naming his wife executrix and sole beneficiary of his estate. In 1946, about the time he and his wife separated, Halpern opened four savings accounts in his own name in trust for his infant granddaughter. While Halpern made subsequent deposits in two of them, he made no withdrawals; nor did he in any other manner revoke the trusts. Although evidence did not establish them as irrevocable trusts, it did show that Halpern on occasion indicated he meant the bank books to go to his granddaughter. Subsequently his wife, as executrix, instituted proceedings to …

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Wills-Undue Influence, Wendell B. Will S.Ed. Mar 1952

Wills-Undue Influence, Wendell B. Will S.Ed.

Michigan Law Review

The right to dispose of one's property at death is one of the more important rights attaching to the ownership of property. Undoubtedly the philosophy behind will statutes is that the presumptive heirs of a man have no claims upon his property and that a testator may do with his property as he pleases within other rules of law. There is more to protecting this right than merely giving effect to a paper presented as the testator's will. The courts must carefully scrutinize this paper to be sure that it actually represents the will of this testator. One of the …

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Civil Procedure-Judgments-Res Judicata Effect Of Dismissal With Prejudice, David F. Ulmer S.Ed. Feb 1952

Civil Procedure-Judgments-Res Judicata Effect Of Dismissal With Prejudice, David F. Ulmer S.Ed.

Michigan Law Review

Plaintiff brought an action in the circuit court against Crane for breach of an alleged trust agreement. When Crane died, his estate, which was substituted as defendant, moved to dismiss the action, alleging that plaintiff's cause of action was barred by laches and by a previous divorce settlement. Plaintiff having failed to file counter affidavits, the court dismissed the complaint and allowed plaintiff twenty days to file an amended complaint. When he failed to do so, the court dismissed the action "with prejudice." Plaintiff's later claim, filed in the probate court, but based on the same trust agreement, was allowed. …

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Wills-Assertion Of Rights Under Mortmain Statute As Violation Of No-Contest Clause, William K. Davenport Feb 1952

Wills-Assertion Of Rights Under Mortmain Statute As Violation Of No-Contest Clause, William K. Davenport

Michigan Law Review

An action was brought by an executor for construction of a will, made five months before testator's death, which attempted to make bequests to various charities. The bequests were "invalid" under the terms of the Ohio mortmain statute because the will was executed less than a year before death. A no-contest clause in the will declared that any person attacking it in any way would be barred from any beneficial interest, but there was no gift over in the event of such a contest. The charitable gifts were in the residuary clause, and there was no substitutionary gift in the …

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Wills-Execution And Revocation Of Duplicate Wills, Richard F. Hooker Feb 1952

Wills-Execution And Revocation Of Duplicate Wills, Richard F. Hooker

Michigan Law Review

Testatrix executed three identical copies of her will. Counsel advised her that in the event she should desire to make a new will she must destroy "both copies of the will in her possession and he would 'definitely destroy the copy' which he retained.'' Thereafter, testatrix destroyed one of the two copies retained by her and struck out an objectionable devise in the other copy. Testatrix made no attempt to alter or destroy the third copy, although she was in temporary possession of it at a later date. The legatee (plaintiff) was successful in setting aside the decree of final …

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Civil Procedure-Judgments-Collateral Attack On Decree Of Distribution Of A Probate Court, David W. Rowlinson Jan 1952

Civil Procedure-Judgments-Collateral Attack On Decree Of Distribution Of A Probate Court, David W. Rowlinson

Michigan Law Review

Testator's will devised a tract of land to his three nieces and directed that the nieces should not sell or dispose of the land for twenty years after his death. This provision was incorporated in the decree of the probate court distributing the land to the three nieces. After the decree of distribution had become final, one of the nieces brought the present action for partition. Over the objection that the decree was conclusive and forbade this type of alienation, the trial court ordered partition. On appeal, held, affirmed. The condition restraining alienation for twenty years is forbidden by …

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Trusts And Estates - Relationship By Affinity-Meaning Of The Word "Stepchild" In A Tax Statute, Harold S. Lentz S. Ed. Dec 1951

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 …

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Contracts-Rights Of Third Party Beneficiary-Effect Of Michigan Beneficiary Contract Statute, Gordon W. Hueschen S. Ed. Dec 1951

Contracts-Rights Of Third Party Beneficiary-Effect Of Michigan Beneficiary Contract Statute, Gordon W. Hueschen S. Ed.

Michigan Law Review

On agreement to make mutual wills, Stephen and his two sisters entered into an agreement whereby the sisters agreed to will to Stephen, or in event Stephen predeceased them, to his wife, all property which they should receive from their father. Stephen did predecease the sisters, whereupon they executed new wills with no provision for Stephen's widow. Upon death of the last sister, the widow's bill for specific performance of the agreement was dismissed by the circuit court. In affirming on appeal, the Michigan Supreme Court held that the agreement as to Stephen and all other persons except the sisters …

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Fiduciary Administration-Fraud In Securing Probate-Constructive Trust Imposed On Devisee, Patrick J. Ledwidge S. Ed. Dec 1951

Fiduciary Administration-Fraud In Securing Probate-Constructive Trust Imposed On Devisee, Patrick J. Ledwidge S. Ed.

Michigan Law Review

Plaintiff's complaint contained the following allegations: that plaintiff was the daughter and defendant the son of the decedent; that defendant had fraudulently destroyed written acknowledgements of the decedent that plaintiff was his daughter; that defendant had falsely secured the probate of decedent's purported will, in which the plaintiff was in no way mentioned. The complaint sought the recovery of the value of a one-half interest in the estate. The trial court sustained a demurrer to the complaint. On appeal, held, reversed. The complaint stated a cause of action entitling plaintiff to the imposition of a constructive trust on the …

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Probate Proceedings-Administration Of Decedents' Estates- The Mullane Case And Due Process Of Law, Nolan W. Carson S.Ed. Nov 1951

Probate Proceedings-Administration Of Decedents' Estates- The Mullane Case And Due Process Of Law, Nolan W. Carson S.Ed.

Michigan Law Review

In a recent decision by the United States Supreme Court, a new chapter has been added to the law on the requisites of notice under the due process clause of the Constitution. This case held that publication of notice prior to a judicial settlement of accounts by the corporate trustee of a common trust fund does not afford due process of law to those beneficiaries with present interests whose addresses are known to the trustee. The court refused to classify the action as in rem or in personam but held that whatever its technical definition, the published notice was not …

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Testamentary Disposition To The Trustee Of An Inter Vivos Trust, George E. Palmer Nov 1951

Testamentary Disposition To The Trustee Of An Inter Vivos Trust, George E. Palmer

Michigan Law Review

The problem of this paper is narrow but important in connection with testamentary dispositions. A man establishes an inter vivos trust, in writing, and later attempts by will to add to the corpus of the trust without repeating in the will the terms of the trust. In some instances he thereafter amends the trust with the expectation that the property bequeathed to the trustee will be held in accordance with the amended terms. This is a simple and convenient method of disposing of property at death and most people probably would take for granted that the disposition is effective. Yet …

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Wills-Construction-Meaning Of Word 'Widow" When Used By Testator, Walter L. Dean S. Ed. Jun 1951

Wills-Construction-Meaning Of Word 'Widow" When Used By Testator, Walter L. Dean S. Ed.

Michigan Law Review

Testatrix set up a testamentary trust which was to continue "until the death of the last survivor of such of my children, grandchildren and any widow of my son, surviving him as shall be living at my decease." Upon the death of any child the trustee was directed to pay to "the husband or widow" of such child a part of the principal or an annuity from the income of the trust. Testatrix' son remarried after her death and on his death the trustee brought this action to determine whether the second wife who was living at testatrix' death, was …

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Wills-Construction-Use Of Extrinsic Evidence, John A. Hellstrom S. Ed. Jun 1951

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

Michigan Law Review

A suit was brought for construction of a will bequeathing a sum of money "To the Home for the Aged located at 2007 N. Capitol Avenue, Indianapolis, Indiana." A home for the aged was conducted at that address by Altenheim of Indianapolis, while Indianapolis Home for the Aged, Inc. was located at 1731 N. Capitol Avenue. The probate court resolved the contest in favor of Altenheim of Indianapolis, holding the bequest to be unambiguous. On appeal, held, reversed. Upon attempted application the bequest was ambiguous and extrinsic evidence was admissible to interpret the language employed. One judge dissented on …

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Future Interests-Suspension Of Power Of Alienation-Effect Of Trustee's Power To Sell And Reinvest, Douglas L. Mann S. Ed. Jun 1951

Future Interests-Suspension Of Power Of Alienation-Effect Of Trustee's Power To Sell And Reinvest, Douglas L. Mann S. Ed.

Michigan Law Review

Testatrix' will provided that the residue of her estate was to be held in trust for the benefit of her great-nephews and great-nieces. The income from the trust estate was to be paid to them each year and, when the youngest attained the age of fifty, the corpus was to be divided equally among them. Testatrix left two nephews surviving her. Held, the disposition was valid. There was an implied power in the trustee to sell and reinvest the trust corpus, and therefore, the trust did not violate the statutory prohibition against suspension of the absolute power of alienation. …

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Trusts-Construction-Whether Devise Of "Any Undisbursed Income" After Life Tenant's Death Includes Income Which Accrued Before Life Tenant's Death, Jean Engstrom S. Ed. Jun 1951

Trusts-Construction-Whether Devise Of "Any Undisbursed Income" After Life Tenant's Death Includes Income Which Accrued Before Life Tenant's Death, Jean Engstrom S. Ed.

Michigan Law Review

Testator's residuary estate was put in trust to pay income, dividends and profits to the testator's wife "so long as she shall live." In the same paragraph the will provided that at her death the "trustee shall stand seized and possessed of said residuary estate including any undisbursed income in trust." In a sub-paragraph the trustee was directed to "pay over the balance of said residuary estate to St. Joseph's Hospital." During her widowhood, testator's wife was in Switzerland where wartime exchange controls precluded payment of income to her under the terms of the trust. Both her administrator and the …

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Wills-Construction-Use Of Extrinsic Evidence, John A. Hellstrom S. Ed. Jun 1951

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 …

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Descent And Distribution--The 'Worthier Title" Doctrine In Iowa--A Limitation Established, Lewis R. Williams, Jr. S.Ed. May 1951

Descent And Distribution--The 'Worthier Title" Doctrine In Iowa--A Limitation Established, Lewis R. Williams, Jr. S.Ed.

Michigan Law Review

Testator left his entire estate of less than $7,500 to his wife who had predeceased him. Defendants claimed the estate through operation of the anti-lapse statute, as heirs of the wife. As the distribution statute gave the widow of an intestate the first $7,500 of the estate, plaintiffs, heirs at law of the testator, claimed title on a basis of the "worthier title" doctrine, arguing that the widow, had she lived, would have taken by descent and not by purchase, and therefore the anti-lapse statute did not apply. On appeal from a denial of defendants' motion to transfer the proceeding …

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Wills-Discovery Of Will Following Adjudication Of Intestacy-Rights Of Intervening Purchasers, Patrick J. Ledwidge May 1951

Wills-Discovery Of Will Following Adjudication Of Intestacy-Rights Of Intervening Purchasers, Patrick J. Ledwidge

Michigan Law Review

At the time of his death in 1945, decedent was the owner of the real estate in question. His estate was administered in the belief that he had died intestate, and the administrator was discharged in August 1946. Thereafter, the property was conveyed by decedent's heirs to buyer, and by buyer in February 1947, to the defendant, a bona fide purchaser. Subsequently, decedent's will was discovered and admitted to probate in December 1947. By the terms of the will, the plaintiff was entitled to a one-half interest in the land. Plaintiff's complaint, asking partition of the land, was dismissed by …

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Wills-Statute Requiring Wills To Be Signed At The End Thereof-Facts Constituting Compliance, Roger D. Anderson Apr 1951

Wills-Statute Requiring Wills To Be Signed At The End Thereof-Facts Constituting Compliance, Roger D. Anderson

Michigan Law Review

Testator had properly executed his will in all respects except that following his and witnesses' signatures there appeared a clause appointing executors. New York statute law provided that to be valid a will must be signed at the end by the testator. Surrogate Court had denied probate. On appeal, held, affirmed. The statute was not complied with, for the end of a will is not found until the last word of all the provisions is reached. In re Winter's Will, 98 N.Y.S. (2d) 312 (1950).

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Wills-Statute Requiring Wills To Be Signed At The End Thereof-Facts Constituting Compliance, Roger D. Anderson Apr 1951

Wills-Statute Requiring Wills To Be Signed At The End Thereof-Facts Constituting Compliance, Roger D. Anderson

Michigan Law Review

Testator had properly executed his will in all respects except that following his and witnesses' signatures there appeared a clause appointing executors. New York statute law provided that to be valid a will must be signed at the end by the testator. Surrogate Court had denied probate. On appeal, held, affirmed. The statute was not complied with, for the end of a will is not found until the last word of all the provisions is reached. In re Winter's Will, 98 N.Y.S. (2d) 312 (1950).

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Agency-Termination-Power Coupled With An Interest, John A. Hellstrom S. Ed. Mar 1951

Agency-Termination-Power Coupled With An Interest, John A. Hellstrom S. Ed.

Michigan Law Review

Martin Gough died intestate leaving three brothers and an alleged wife as survivors. Since there was some doubt whether the woman was his widow and entitled to share in the estate as such, the three brothers agreed that one of their number, Luke, should negotiate a settlement for them with the woman. When this was done James refused to sign and revoked the power, whereupon Luke signed for him. A bill for specific performance of the agreement, brought by intestate's alleged wife, Margaret, and two brothers, Luke and Frank, against James, was dismissed by the lower court. On appeal, held …

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Trusts And Estates-Legacies Of Corporate Shares-Right Of Selection, William O. Allen Mar 1951

Trusts And Estates-Legacies Of Corporate Shares-Right Of Selection, William O. Allen

Michigan Law Review

Testator by holographic will bequeathed twenty-five shares of certain stock to legatee, a minor unrelated to the testator. At his death, testator owned twenty-one shares of preferred and fifty-three shares of common stock of the specified type, the preferred stock being the more valuable. Held, legatee had the right to select the most valuable combination of shares possible, or twenty-one shares of preferred and four shares of common stock. In re Connolly's Estate, (Pa. Super. 1950) 71 A. (2d) 856.

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Gifts For The Benefit Of Minors, Austin Fleming Feb 1951

Gifts For The Benefit Of Minors, Austin Fleming

Michigan Law Review

Primarily because of tax incentives, lifetime gifts have become increasingly popular in recent years among persons of wealth. Until the Revenue Act of 1948, such gifts were frequently made between spouses. But the tax advantages of interspousal gifts were greatly lessened by the split-income privilege and the marital deduction, and a new inducement was given to gifts to third persons by the establishment of the right to treat such gifts as being one half from each spouse. As a result, gifts to children and grandchildren have taken on new prominence.

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Constitutional Law-Power Of State To Discriminate Against Federal Government By Testamentary Transfer Statute, Gordon W. Hueschen Feb 1951

Constitutional Law-Power Of State To Discriminate Against Federal Government By Testamentary Transfer Statute, Gordon W. Hueschen

Michigan Law Review

Decedent, domiciled in California, made a testamentary gift to the United States. By an interpretation of the state probate code, the California Supreme Court held the gift invalid and directed distribution to decedent's heirs. The United States asserted unconstitutional interference with the federal government's power to receive gifts. On appeal to the United States Supreme Court, held, affirmed. The California Probate Code did not violate the supremacy clause of the Constitution, and no unconstitutional discrimination was effected against the federal government thereby, even though the statute allows testamentary gifts by state domiciliaries to the state and prohibits testamentary gifts …

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Future Interests-Rule Against Perpetuities-Vesting Of Residuary Estate In Trustee For Charity Subject To A Condition Precedent, Edward W. Rothe S.Ed. Dec 1950

Future Interests-Rule Against Perpetuities-Vesting Of Residuary Estate In Trustee For Charity Subject To A Condition Precedent, Edward W. Rothe S.Ed.

Michigan Law Review

The will of testatrix provided: after the payment of debts and legacies, "I give, devise and bequeath" the residue of my estate to a charitable foundation. Held, the provision for payment of debts and legacies refers only to the quantum of estate the trustee will take and not to the time when his title vests in interest; it constitutes no condition precedent to the vesting of title in the trustee for charity. Therefore, the rule against perpetuities, which applies only to remoteness of vesting and not to postponement of possession and enjoyment, has no application. The fact that debts …

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Future Interests-Inter Vivos Application Of Worthier Title Doctrine- Destruction Of The Doctor V. Hughes Rule, Daniel A. Isaacson S.Ed. Nov 1950

Future Interests-Inter Vivos Application Of Worthier Title Doctrine- Destruction Of The Doctor V. Hughes Rule, Daniel A. Isaacson S.Ed.

Michigan Law Review

In one case, settlor executed an instrument whereby certain property was conveyed to trustees to pay the income therefrom to settlor during her life and upon her death to convey the principal of the trust estate to such persons as she should appoint in her will, or, in default of appointment, to her next of kin as in intestacy. In addition, settlor reserved to herself the right and power to approve and join in the execution of any conveyance or mortgage of the property. After the settlor died without having exercised the power of appointment, her four children applied as …

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