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Descent And Distribution-Release Of Expectancy-Effect Nov 1932

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. …


Executors And Administrators-Right To Deduct Statute-Barred Debt From Legacy Or Distributive Share Nov 1932

Executors And Administrators-Right To Deduct Statute-Barred Debt From Legacy Or Distributive Share

Michigan Law Review

A contingent legatee made application for an order to compel the executor to pay to her a legacy. The executor claimed the right to deduct a debt due the estate upon which the statute of limitations had run. The court held, in In re Weidig' s Will, that there could be no deduction.


Federal Jurisdiction - Diversity Of Citizenship - Suit Under Death Act Jun 1932

Federal Jurisdiction - Diversity Of Citizenship - Suit Under Death Act

Michigan Law Review

The decedent, a citizen of Oklahoma, died as the result of injuries alleged to have been negligently inflicted by the respondents, citizens of Louisiana. An Oklahoma statute, creating a cause of action for death by wrongful act, requires that the administrator maintain the suit, the proceeds of which are to be divided between the widow and children and are not to be assets of the estate. Okla. Comp. Stat., 1921, secs. 822-825. The petitioner, a citizen of Louisiana, was duly appointed administrator for the obvious purpose of preventing removal of the cause to the federal court on the ground of …


Wills - Legacies On Impossible Or Illegal Conditions Precedent May 1932

Wills - Legacies On Impossible Or Illegal Conditions Precedent

Michigan Law Review

If a devise of realty be upon a condition subsequent which is impossible of performance or which is illegal as being malum prohibitum, it is generally held that the condition is void, but the devise is free and single. In this respect the law pertaining to legacies upon condition materially agrees with that upon devises of realty. But perhaps one of the most unusual distinctions drawn in the law of property is that which is drawn between an illegal or an impossible condition precedent to a legacy of personalty and an illegal or an impossible condition precedent to a …


Banks And Banking - Misappropriation Of Trust Funds - Liability Of Bank Apr 1932

Banks And Banking - Misappropriation Of Trust Funds - Liability Of Bank

Michigan Law Review

Committee for incompetent deposited checks payable to him as such committee in the defendant bank to the credit of his individual account. The committee's account was entirely dissipated, but, so far as the facts appear in the opinion, the defendant bank at no time had any knowledge of the use to which the money was put. The committee was removed and the substituted committee sued the defendant bank for aiding the original committee in the diversion of the funds. Held, that it was the duty of the defendant bank to inquire whether the committee had authority to deposit the …


Bills And Notes - Authority To Fill In Blanks - Effect Of Death Of Maker Apr 1932

Bills And Notes - Authority To Fill In Blanks - Effect Of Death Of Maker

Michigan Law Review

H gave W his note in blank with authority to fill it in at $50,000 when she wished, the note representing W's interest in their joint property. W filled in the blanks after H's death and sued H's estate on the note. Held, the authority to fill in was not revoked by H's death, for it was a power coupled with an interest. In re Ferrara (N. J. 19 3 l) 156 Atl. 265.


Trusts -- Self-Dealing Of The Trustee -- Right To Look Through The Corporate Entity Apr 1932

Trusts -- Self-Dealing Of The Trustee -- Right To Look Through The Corporate Entity

Michigan Law Review

One Northrop was appointed by the court as guardian, receiving $2,500 which he deposited in defendant bank of which he was the president, the general manager, and of which he was in complete control. Subsequently he exchanged this deposit for a mortgage owned by the bank. The bank became insolvent, and plaintiff, as substituted trustee, brought this action to have a preference adjudged out of the bank's assets in favor of the ward. Held, plaintiff could ignore the mortgage transaction but could only claim as a general creditor of the bank. Ottawa Banking and Trust Co. v. Crookston State …


Trusts - Tracing Of Assets - Preference Apr 1932

Trusts - Tracing Of Assets - Preference

Michigan Law Review

Public funds were unlawfully deposited in the insolvent bank. At the time the bank closed the cash in its own vault was less than the amount of public funds deposited but it did have, at the time of closing and at all times before, deposits in correspondent banks which, taken with the cash in its own vault, exceeded the amount of the public funds unlawfully deposited. Held, that the unlawful deposit of the public funds, the bank knowing them to be public funds, created a trust of those funds in the hands of the bank, which trust was impressed …


Wills -Validity Of Contracts To Suppress Mar 1932

Wills -Validity Of Contracts To Suppress

Michigan Law Review

Certain children entered into a contract during the lifetime of their parents, by the terms of which it was agreed that if the will of either parent should favor some of the children above others, the favored children would waive their rights under the will and share equally in the real and personal estate of the parents. The will of the father left the whole estate to the mother. Her will omitted any gift to one of the children, and this suit was brought by an assignee of that child to obtain specific performance of the agreement. Held, that …


Descent And Distribution - Issue Of Void Miscegenous Marriage As Heirs Under Legitimation Statute Mar 1932

Descent And Distribution - Issue Of Void Miscegenous Marriage As Heirs Under Legitimation Statute

Michigan Law Review

An Indian married a negress in Oklahoma. The proper forms were observed, the parties acted in good faith, and thereafter lived together as husband and wife. Children were born to them. The marriage was absolutely void under an Oklahoma statute prohibiting such miscegenation and making it a felony. On the father's death intestate, the guardian of the children petitioned for letters of administration. Held, that under Okla. Comp. Stat. 1921, sec. I 1303, reading, "The issue of all marriages null in law . . . are legitimate," the children of the void marriage took as heirs, and the petition …


Future Interests - Devise Of Life Estate With Superadded Power To Sell Fee Mar 1932

Future Interests - Devise Of Life Estate With Superadded Power To Sell Fee

Michigan Law Review

Testator gave his wife a life estate and added, "and I further empower her to sell any and all of either my personal real or mixed estate whenever she may think it to her interest to do so," with a limitation over to his son of whatever property remained of his estate at the time of the widow's death or remarriage. The widow conveyed the estate in fee to her daughter for valuable consideration. On the widow's death the son, as remainderman, brought ejectment against the daughter. Held, that the action did not lie since the widow had been …


Trusts-Duty Of The Trustee To Sell Stock In A Falling Market Mar 1932

Trusts-Duty Of The Trustee To Sell Stock In A Falling Market

Michigan Law Review

Securities were turned over to defendant as trustee, among which were issues of common stock in two sugar companies, under the direction that the trustees were authorized to continue all investments of the testator without any personal liability in doing so. In the executor's accounting the stocks were valued per share at $22 and $12.25 respectively. In the present accounting, instituted by the beneficiary on becoming entitled to the corpus of the trust estate, the stocks had fallen to $7 and $.50 respectively. The trust company was experienced in the handling of securities and its officers were advised not to …


Waste - Improvement Of Premises By Life Tenant Mar 1932

Waste - Improvement Of Premises By Life Tenant

Michigan Law Review

The possible difficulties of a life tenant and some of the rigid and anachronistic doctrines of the law of waste are suggested by the recent case of Brokaw v. Fairchild, 135 Mis. 70, 237 N. Y. S. 6 (1929); aff'd 231 App. Div. 704,245 N. Y. S. 402 (1930), Finch, J., dissenting; aff'd, 177 N. E. 186 (1931), without opinion.


Wills - Pretermitted Heirs Mar 1932

Wills - Pretermitted Heirs

Michigan Law Review

In an action based on section 1550 of the Compiled Laws of 1929 providing that a child omitted from the will of a parent shall share as in intestate succession unless it appears that such omission was intentional, the question arose as to whether this intent could be shown by extrinsic evidence. Held, such evidence is admissible. O'Neall v. Her, 254 Mich. 631, 236 N. W. 890 (1931).


Gifts Causa Mortis - Contemplation Of Suicide Feb 1932

Gifts Causa Mortis - Contemplation Of Suicide

Michigan Law Review

The testator, suffering from melancholia and contemplating suicide, purchased a certificate of stock in the name of his brother and caused it to be deposited in a bank by the latter. Over two months thereafter, the testator stated, in effect, that in the event of his death the certificate should become the brother's property. Held, in affirming the allowance of the final account of the executor, that the transfer of the certificate was a valid gift causa mortis. In re Van Wormer's Estate, 255 Mich. 399, 238 N.W. 210 (1931).


Trusts -Tracing Of Assets - Preference Jan 1932

Trusts -Tracing Of Assets - Preference

Michigan Law Review

In State ex rel Sorenson v. Farmers' State Bank of Polk (Lindquist, Intervenor) the beneficiary of a trust fund converted by the bank, subsequently becoming insolvent, was allowed to resort to equity and recover the trust fund as a preferred claim against the general assets of the bank. The beneficiary deposited a promissory note in the sum of $4,500 in the bank for a special purpose and the bank, without authority, indistinguishably mingled the proceeds of this note with the general mass of bank assets. The amount of actual cash on hand when the insolvent bank was taken over by …


Transfer Of Future Interests, W. Lewis Roberts Jan 1932

Transfer Of Future Interests, W. Lewis Roberts

Michigan Law Review

In considering to what extent future interests are transferable in this country it is proposed to limit the investigation to those future interests known as contingent remainders, executory devises, and defeasible vested remainders. It has not been deemed necessary to consider vested remainders as they have long been treated by the law in much the same way as present estates have been as far as alienation is concerned.


Equity - Power To Rescind Conveyance For Fraud - Survival Jan 1932

Equity - Power To Rescind Conveyance For Fraud - Survival

Michigan Law Review

When a party has been induced by fraud to make a conveyance of real estate, he has a choice of remedies against the defrauding grantee. He may seek restitution of the land or its proceeds in equity or at law on a theory of rescission, or he may affirm the transaction and bring an action for the recovery of damages for the deceit. The actions being logically inconsistent, the granter is not allowed to proceed in both, and must elect whether he will have his property returned to him in specie on his restitution of the price received from the …


Wills-Status Of Illegitimates Under Bequest To Children Jan 1932

Wills-Status Of Illegitimates Under Bequest To Children

Michigan Law Review

The testator devised $5,000 to "the children of my deceased sister B, to be divided equally among those living at my death, including the child or children of a deceased child by right of representation." B had one child who predeceased the testator, leaving two illegitimate children, the complainants. Held, the illegitimates can take, providing they can show that the testator knew that they were the only surviving offspring, at the time the will was made. In re Kauffer's will, (Wis. 1931) 234 N.W. 502.


Torts - Fraud - Spoliation Of Will Jan 1932

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.


Trusts - Statute Of Frauds - Part Performance Of Oral Trusts, Mark H. Harrington Dec 1931

Trusts - Statute Of Frauds - Part Performance Of Oral Trusts, Mark H. Harrington

Michigan Law Review

In some jurisdictions, where some equivalent to the seventh section of the English Statute of Frauds has not been enacted, an oral trust of land is enforceable. In others, it is held that the provisions requiring a writing in the case of conveyances of and contracts concerning interests in land forbid oral trusts of land. It is clear, however, that when the statute of frauds in force contains a provision requiring express trusts to be created or evidenced by writing, an oral agreement between grantor and grantee that the property conveyed should be held in trust can not be enforced …


Trusts - "Active" Trusts Dec 1931

Trusts - "Active" Trusts

Michigan Law Review

A will gave the residue of the testator's realty and personalty to his wife for life, with power to draw on so much of the principal for her support as she and Rubie Tracy should deem necessary. In a later clause, the testator recited his desire that his wife "have assistance in taking care of the property hereinabove bequeathed and devised to her," and appointed Rubie Tracy, testator's wife, and a third person to be trustees for the wife of whatever she received under the will. Held, an active trust. Bunker v. Bunker et al. (Me. 1931) 154 …


Wills - Executor's Right To Deduct From A Legacy A Debt Due The Estate But Barred By The Statute Of Limitations Nov 1931

Wills - Executor's Right To Deduct From A Legacy A Debt Due The Estate But Barred By The Statute Of Limitations

Michigan Law Review

The decedent left his estate, by will, equally to several persons, one of whom had owed to the testator a debt which was now barred by the statute of limitations so that the executor could not collect it by suit. The executor claimed a right to collect this debt by deducting it from the share of the personal property of the estate given the debtor. The court held that the debt, though barred by the statute of limitations, was still in fairness and good conscience due to the estate and that the executor might deduct it from the share given …


Bills And Notes-Negotiability Of Corporate Debentures Jun 1931

Bills And Notes-Negotiability Of Corporate Debentures

Michigan Law Review

Many corporate bonds and debentures contain some such reference provision as the following: "* * * all [bonds, debentures] issued under a certain Trust Agreement, dated as of June 15, 1926, executed by the Company to the National City Bank of New York, as Trustee, to which Trust Agreement reference is hereby made for a statement of the terms under which the said Debentures are issued and the rights and obligations of the Company, of the Trustee and of the respective holders of the said Debentures under said Trust Agreement. * * *." To this clause some of these securities …


Wills-Restoration Or Revival Of A Will Upon The Revocation Of A Subsequent Instrument Revoking The Prior Will Jun 1931

Wills-Restoration Or Revival Of A Will Upon The Revocation Of A Subsequent Instrument Revoking The Prior Will

Michigan Law Review

A recent Pennsylvania case, In re Ford's Estate, is an interesting example of a situation which has left the courts in decided conflict. The decedent had properly executed two wills. On his death bed he caused the later will, which contained the usual clause expressly revoking all prior instruments, to be torn. At the time he stated that he wished his son, his only heir at law and next kin, to have all his property. The evidence indicated that the decedent had entirely forgotten the existence of the prior will. The court, relying upon the expression of the decedent's …


The Business Trust As A Means Of Securing Limited Liability Jun 1931

The Business Trust As A Means Of Securing Limited Liability

Michigan Law Review

Small investors are unwilling to risk their entire personal fortunes in one business venture, and for this reason refuse to participate in an enterprise unless they are assured that they will be free from individual liability for the obligations of the business. Such freedom from liability may be obtained by incorporation. That is the method especially provided by law and the one which most businesses adopt, but it has its disadvantages. The organization of a corporation involves heavy expenses in the form of lawyers' fees, filing fees and organization taxes. Once formed the corporation is subject to many. special taxes, …


Taxation-Retrospective Succession Tax On Trust Remainder Jun 1931

Taxation-Retrospective Succession Tax On Trust Remainder

Michigan Law Review

The settlors voluntarily placed property in trust, the income from which was to be paid to them during their lives, the corpus to be divided upon the surviving settlors' death, among their sons, or if any son predeceased the survivor, among those persons entitled to take his intestate property. Subsequently the settlors assigned their life interest to the sons; this conveyance, however, in the case of Coolidge v. Loring, 235 Mass. 220, 126 N.E. 276, was held ineffectual to eliminate the possible effect of the contingency of any son predeceasing the surviving settlor. Between the execution of the deed …


Trusts-Accumulations-Possibility Of Remoteness Jun 1931

Trusts-Accumulations-Possibility Of Remoteness

Michigan Law Review

Testator left his realty in trust to apply the net income, after the payment of certain expenses, eighty per cent to the use of a charity and certain persons, the other twenty per cent to a sinking fund "to restore, replace or make major improvements or additions to the buildings and improvements" of that realty. The income from the accumulated fund was to be paid to the charity; the principal expended at such times as the trustees deemed necessary. It was claimed the provision for this fund constituted an unlawful direction to accumulate income. Held, that income applied to …


Trusts-Liability Of Trust Estate For Torts Of Trustee Jun 1931

Trusts-Liability Of Trust Estate For Torts Of Trustee

Michigan Law Review

Plaintiff, an employee of a laundry of which the legal title was held in trust, was injured by an unguarded machine. The trustee was sued in tort in his representative capacity. There was no evidence as to whether the trustee himself or some agent was directly responsible for the condition of the premises. Held, the judgment of the lower court, directing that the plaintiff be paid out of the assets of the trust estate, was correct. Where the trustee is charged with the duty of carrying on a business the trust estate may be held liable for the negligence …


Wills-Interpretation-Divide And Pay Over Rule-Legacies Chargeable On Land Jun 1931

Wills-Interpretation-Divide And Pay Over Rule-Legacies Chargeable On Land

Michigan Law Review

The testator devised his realty to his widow for life with remainder to his son subject to the conditions that within one year after the death of the life tenant the son pay the testator's two daughters (naming them) $2,000 each. One of the daughters predeceased the life tenant, dying intestate and unmarried. The life tenant assigned to the surviving daughter all that she had inherited from the deceased daughter. Held, the assignment did not pass the $2,000 legacy to the deceased daughter. In re Phearman's Estate (Iowa 1930) 232 N.W. 826.