Estates and Trusts Commons^™

Construction Of Private Instruments Where Adopted Children Are Concerned: Ii, J. Wesley Oler

Michigan Law Review

Thus far in the discussion the attempt has been to consider a number of common terms of general designation, such as "children," "issue," and "heirs," detached from other language with which they may be found and disassociated from the circumstances under which they may be used, with a view to estimating their intrinsic significance in resolving questions as to the effect of adoption upon the identification of persons designated by them. The examination from this point: of view could lead to the deduction that in themselves the particular terms of designation furnished varying degrees of assistance to the interpreter of …

Future Interests-Worthier Title Doctrine Applied To Remainder To Next Of Kin Where The Subject Matter Is Personalty, Margaret Groefsema S.Ed.

Michigan Law Review

The trustee bank petitioned for instructions as to the proper disposition of the remainder of a trust of personal property, the principal of which amounted to some $29,000 upon the life beneficiary's death in 1942. The donor had provided for a life estate in the income, the principal to go to the settler's statutory next of kin under the laws of intestacy of the state of Massachusetts in default of the exercise by the settler of a reserved power of appointment. The court, having held that a will which Nicolls, the settler, had executed in favor of various friends of …

Abstracts, Katharine Loomis

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

The Administration Of A Decedent's Estate As A Proceeding In Rem, Lewis M. Simes

Michigan Law Review

For over a century American courts and text writers have referred to the administration of a decedent's estate as a proceeding in rem. Indeed, it has recently been asserted that a probate proceeding is "universally recognized as a proceeding in rem." But more cautious persons have been content to suggest that it is at least "quasi in rem," or have carefully skirted the fog which is wont to envelop this area of the law and given it silent treatment. Thus, the American Law Institute Restatement of the Law of Judgments ( which purports to include the law of probate decrees) …

Construction Of Private Instrument's Where Adopted Children Are Concerned: I, J. Wesley Oler

Michigan Law Review

The institution of adoption is of ancient tradition, knowing primitive origin and tracing its history through many civilizations. Today its universality still bespeaks the human needs from which it springs.

Recent growth of statutory reforms, procedural and substantive, in our adoption system reflects the increasing social interest of the state in this field. Procedurally, extensive strides have been made to safeguard those directly concerned in adoption, and through them to protect the public in general. Substantively the lagging but nonetheless noticeable trend is toward complete legal equivalence between relationship by adoption and relationship by blood. At present, however, such equivalence …

Trusts-Statute Of Frauds-Oral Trust Of Land And Proceeds, Margaret Groefsema S.Ed.

Michigan Law Review

A conveyance was made of real property impressed with an oral trust unenforceable because of the statute of frauds requiring trusts of interests in land to be in writing. The land was later sold and the plaintiff as beneficiary of the parol trust sought to reach the proceeds of the sale. Held, the statute of frauds does not apply to personal property. Therefore the oral trust may be impressed upon the proceeds even though it could not have been enforced while the trust res remained realty. Simpson v. Clark, (Mass. 1944) 55 N.E. (2d) 10.

Wills-Necessity Of Signature-Statutory Requirements Satisfied By Typewritten Name, Craig E. Davids S.Ed.

Michigan Law Review

Testatrix, having predeceased her husband by three hours, was believed to have died intestate, and her property passed to her husband's estate. Appellee, mother of testatrix, filed a claim against the estate for money owed by her daughter and son-in-law. A year after her claim had been settled by appellants, appellee filed for probate testatrix's will, in which appellee was named the sole legatee. The signature affixed to the instrument was not in the handwriting of testatrix but consisted only of her typewritten name, which testatrix had acknowledged as her signature before two witnesses on separate occasions. The lower court …

Revocation Of Wills-Dependent Relative Revocation, L. M. S.

Michigan Law Review

Testator, after providing in his will for the payment of debts and expenses of administration, devised and bequeathed the residue of his estate "to my wife, Alice B. Houghton, if she is living at the time of my death; and if she is not living at the time of my death, then . . . to my brother-in-law, Stephen M. Stuart, of Fort Myers, Florida," The will was duly-executed in this form, but thereafter the words "my brother-in-law, Stephen M. Stuart, of Fort Myers, Florida," were lined out and the testator inserted the following: "Give to Louisa Paquin the shop …

The Venue Of Probate And Administration Proceedings, Paul E. Basye

Michigan Law Review

With the division of each state into counties or districts and the creation in each such subdivision of some court for the probate of wills and the administration of estates, it became necessary to designate which of such courts should undertake these functions in a particular estate. It is not the purpose of this study to consider problems arising out of conflicts of jurisdiction as between states insofar as independent determinations of domicile of a decedent may be made. That a decedent died a resident of the state undertaking an administration upon his estate will be assumed; or, if he …

Wills - Soldiers And Sailors - Intent Necessary For Validity, Robert M. Barton S. Ed.

Michigan Law Review

In December of 1941 decedent was a fireman aboard an oil tanker bound for the Dutch West Indies. While discussing the dangers brought about by the war to merchant shipping, he told a shipmate, "Well, if I get lost or anything--I want Mr. Knight and his people to have what I got, insurance and everything." He repeated this desire to his fellow seaman on several other occasions during the course of the voyage. The vessel reached port safely, but several trips later the decedent was drowned when his ship was torpedoed. Knight claimed the estate, alleging that the statement was …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

The Organization Of The Probate Court In America: Ii, Lewis M. Simes, Paul E. Basye

Michigan Law Review

It is the purpose of the discussion which follows to consider how far the court organization in typical jurisdictions is adapted to a differentiation between contentious and noncontentious business. The sharp differentiation in English law will first be pointed out. Then the probate judicial organizations of various typical states will be considered in connection with the questions: How far have they retained the distinction between contentious and noncontentious business emphasized in the English system which served as their model? How far have they developed a basis of differentiation unlike the English model? The answer to these questions will involve some …

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 …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Preparation Of A Model Probate Code, Rufford G. Patton

Michigan Law Review

At the 1940 meeting of the American Bar Association held in Philadelphia, the Section of Real Property, Probate and Trust Law included in its program a discussion of the proposal of a Model Probate Code. The section had previously had committees to consider the subjects of uniformity in probate codes and improvement in probate practice, and its programs had included not only reports of these committees but addresses outlining the increasing importance of probate law and the need for statutes which would create adequate standards of practice and administration. During the year 1940 the Journal of the American Judicature Society …

The Organization Of The Probate Court In America: I, Lewis M. Simes, Paul E. Basye

Michigan Law Review

This is a study of contemporary American legislation concerning probate courts, with particular reference to their jurisdiction over the probate of wills and the administration of estates of deceased persons.

By the term "probate courts" is meant all judicial tribunals which exercise such jurisdiction. As will subsequently appear, they are otherwise variously designated as surrogates' courts, orphans' courts, prerogative courts, courts of ordinary and county courts. In one state all the functions of probate and administration are exercised by courts of chancery. In other states, chancery has concurrent jurisdiction over many of these functions. Sometimes the register of probate exercises …

Wills-Revocation By Marriage Where Will Makes Nominal Bequest To Each Heir Not Mentioned, Elizabeth Durfee

Michigan Law Review

Testatrix provided in her will that she intentionally omitted all of her heirs not specifically mentioned, "intending thereby to disinherit them," and provided further that "any such persons, or heirs, or any devisees or legatees" contesting the will should receive $1.00. She married after making the will, and this is a petition by the surviving husband to determine heirship. He claims an intestate share of the estate by virtue of a statutory provision that marriage revokes a will as to the surviving spouse "unless provision has been made for the spouse by marriage contract, or unless the spouse is provided …

Abstracts, Mary Jane Plumer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Future Interests--Powers Of Appointment--May Creditor-Appointee Of Testator Recover Damages For Breach Of Contract To Appoint In Any Future Will, Allen C. Holmes

Michigan Law Review

Plaintiff made a contract with the donee of a power of appointment granted in these words: "I give and bequeath the principal of said trust fund unto such person or persons and in such estates, interests and proportions as the said Clarence C. Appleton shall in and by his Last Will and Testament in that behalf appoint. I give the said Clarence C. Appleton this power of disposition in order to enable him to make such legacies as he may desire, to his heirs, relatives, friends, or for charity." The donee agreed to execute and did execute a will in …

Future Interests-Acceleration Of Vested Remainders Subject To Complete Defeasance, Allen C. Holmes

Michigan Law Review

In 1938 the defendant, grantor, executed a deed by which she purported to vest a remainder in her son, the plaintiff herein, subject to a life estate in herself and. in her husband should he survive her. The deed further provided that should her son die before the survivor of her husband and herself, then the property was to pass share and share alike to the son's then living heirs. The grantor survived her husband. Shortly after his death she conveyed her life estate to her son for the express purpose of destroying it through merger with the remainder vested …

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 …

Trusts-Participation By Banks In Diversion Of Trust Funds

Michigan Law Review

That fiduciaries who misappropriate or divert trust funds from their proper purpose are bound to make good is familiar doctrine. It is equally clear that those who guiltily participate in such. diversions by faithless fiduciaries are also liable. The point of chief difficulty is the determination of what participations are properly classified as guilty, for innocent participators clearly are not bound to make good. For example, a fiduciary with power to sell things held in trust may wish to turn the subject matter into cash preliminary to a misappropriation. A bona fide purchaser who provides the cash no doubt stands …

Abstracts, Benjamin M. Quigg, Jr.

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Resulting Trust-Statute Of Frauds-Advance Of Purchase Money In Exchange For Transferee's Promise To Furnish A Life Home For The Payor, Craig E. Davids S. Ed.

Michigan Law Review

Plaintiff, an illiterate sharecropper, advanced money to purchase an eighty acre farm, record title being taken in the name of defendant and wife with whom plaintiff had been living for more than a year pursuant to an agreement that defendant was to furnish plaintiff with a home for life. The arrangement worked satisfactorily for more than thirty years, during which time the premises were improved and a mortgage discharged by plaintiff. Defendant then remarried and the friction which followed was climaxed by defendant ordering plaintiff off the premises. Suit was filed in equity, under an Oklahoma statute to have defendant …

The Development Of The Massachusetts Probate System, Thomas E. Atkinson

Michigan Law Review

American lawyers and laymen alike take for granted a system of probate of wills and administration of decedents' estates under the supervision of a single tribunal usually called a probate court. We are familiar with the setting up of the will, appointment of the personal representative, filing of bond and inventory by the latter, granting of allowances for support of the family, notice to creditors to present their claims, and settlement of accounts of the administration, all accomplished by this court's orders or under its scrutiny. While real property is deemed to pass directly to the heirs or devisees, it …

Soldiers And Sailors-Civil Relief Act Of 1940-Application To Decedents' Estates, Secured Obligations, Installment Contracts, Insurance, Taxes, And Assessments

Michigan Law Review

On October 17, 1940, the Soldiers' and Sailors' Civil Relief Act became effective. The discussions which follow, written by different authors, do not cover the entire act, but only the parts indicated by the various headings.

Abstracts Of Recent Decisions, Benjamin M. Quigg, Jr.

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Abstracts, Katherine Kempfer

Michigan Law Review

The abstracts consist merely of summaries of the facts and holdings of recent cases and are distinguished from the notes by the absence of discussion.

Future Interests - Charities - Validity Of Accumulation For Charity When Impracticable To Accumulate Desired Amount, Hobart Taylor, Jr.

Michigan Law Review

An executor petitioned for instructions under a will which devised the residuary estate to trustees to be accumulated in trust until sufficient to purchase a farm upon which a home for the aged and indigent would be established. The trustees waived all interest in the fund, which amounted to less than two hundred dollars. Held, there is no reasonable prospect of the accumulation becoming sufficient to establish the charity, or to maintain it if it should be established. The contingencies are thus so remote that the trust fails for impracticality. Green v. Parker, (N.H. 1943) 32 A. (2d) …

Future Interests - Taxation - Evidence - Presumption As To The Possibility Of A Woman Bearing Children, Hobart Taylor, Jr.

Michigan Law Review

Testatrix, a resident of Massachusetts, set up a trust of her residuary estate for her two daughters, the principal to be paid to their issue, but if either should die without issue, her share to be paid to certain named charities. On probate, the remainder to charity was held to be void. The income tax law of Massachusetts imposed a three per cent levy on income accumulated for contingent future interests, but exempted from taxation certain interests of nonresidents, including vested remainders not subject to being divested. The daughters, nonresidents, contended that their interests should not be taxed as contingent …