Family Law Commons^™

Fiduciary Administration-Power Of Court To Authorize Inter Vivos Distribution From Incompetent's Estate, Robert C. Bonges

Michigan Law Review

The guardians of an eighty-six-year-old incompetent multi-millionaire petitioned for authorization to give a portion of the ward's assets to his children and grandchildren. It was not suggested that the proposed beneficiaries were currently in need of funds, but rather the sole purpose of the inter vivas distribution was to minimize the impact of federal estate taxes on the ward's estate at his death. It was alleged and proved, however, that the proposed distribution would follow a plan which accorded substantially with the terms of the ward's will, and which the ward presumably would have followed himself, had he remained competent …

International Law-Treaties-Inheritance Rights Of Residents Of Yugoslavia, Charles F. Niemeth

Michigan Law Review

All the heirs at law of a Pennsylvania resident who died intestate resided in Yugoslavia. The Orphans' Court found that the distributees would not have the actual benefit, use, enjoyment or control of their intestate shares. In accordance with a state statute providing for such contingency,1 the funds were ordered paid, without escheat, into the state treasury. On appeal, held, affirmed, one judge dissenting. Because the statute is custodial rather than confiscatory, it is not repugnant to the most-favored-nation clause of the treaty between the United States and Yugoslavia which provides for reciprocal rights of inheritance between citizens of …

Child Custody In A Federal System, Leonard G. Ratner

Michigan Law Review

Among the most difficult of judicial functions is the determination of a child's custody after its parents have separated. The difficulties are acute enough when all the parties remain in the same place; when the parties are in different states, an additional perplexing problem arises as to which state should have authority to make the custody decision. This broad question can be resolved into three distinct though interrelated issues: (1) what state may initially determine custody; (2) what state may later modify that determination; (3) to what extent is such a determination binding on other states.

Wills--Sequestration--Acceleration Of Life Interest Upon Renunciation Of Prior Interest, Daniel R. Elliott Jr.

Michigan Law Review

Testator made an inter vivos agreement in which he promised to bequeath to his son a certain portion of his estate. Upon testator's failure to comply with this agreement, the bequest actually given, a life interest in sixty percent of the estate, was renounced by the son, who instead elected to receive one million dollars from the estate in settlement of his claim. The will gave a remainder interest for life to the son of the renouncing legatee, testator's grandson. The ultimate remaindermen of the corpus of this part of the estate were two hospitals. In regard to the remaining …

Taxation-Federal Income Tax-Divocrce Property Settlement As A Taxable Event, Martin B. Dickinson Jr., S.Ed.

Michigan Law Review

Respondent taxpayer transferred stock to his former wife pursuant to a voluntary property settlement agreement incorporated in their divorce decree. As consideration for the securities conveyed, his wife released her rights to alimony, dower, and intestate succession under Delaware law. The Commissioner of Internal Revenue assessed as taxable gain the difference between the taxpayer's basis for the stock and its market value at the time of the transfer, but the Court of Claims ruled that the taxpayer realized no taxable gain from the transfer. On certiorari, held, reversed. The exchange was a taxable event in which the taxpayer received …

Property-Joint Bank Accounts-The Donee's Inter Vivos Interest, David K. Kroll S.Ed.

Michigan Law Review

The use of joint bank accounts has become widespread throughout the United States in recent years and has been the source of considerable litigation and comment. The predominant importance of this type of account is that it allows funds remaining at the death of a co-depositor to pass to the survivor without the necessity of a will. This aspect of the account, causing it to be known sometimes as a "Poor Man's Will," has been the focal point of the attention given to the transaction; and today, after more than half a century of uneven treatment by the courts, all …

Wills - Probate - "Fraudulent" Destruction Notwithstanding Testator's Knowledge, Alan Rothenberg

Michigan Law Review

Decedent executed a will in which he exercised a general testamentary power of appointment making plaintiff beneficiary of a trust. The will was delivered for safekeeping to a notary in Germany and subsequently destroyed in a bombing raid. Decedent, having learned of the destruction of his will, died ten months later without executing a new will in the interim. The Surrogate admitted the will for probate as one "fraudulently destroyed" under New York law. The Appellate Division reversed. On appeal to the New York Court of Appeals, held, reversed, three judges dissenting. The will was "fraudulently destroyed" within the meaning …

Negligence - Interspousal Tort Immunity - Action By Wife Against Deceased Husband's Estate, Charles E. Voltz

Michigan Law Review

When the automobile driven by plaintiff's husband collided with another vehicle, plaintiff's husband was killed and she was seriously injured and rendered mentally incompetent. Plaintiff's guardian brought a negligence action for her injuries against the other driver, who impleaded the administrator of her husband's estate as a third-party defendant. The trial court denied administrator's pre-trial motion for summary judgment, and subsequently entered judgment against the administrator. On certification, held, affirmed. The doctrine of tort immunity between spouses is based on a policy of preserving domestic peace and harmony and preventing fraudulent collusion against insurance companies, and does not apply …

Macdonald: Fraud On The Widow's Share, Max Rheinstein

Michigan Law Review

A Review of FRAUD ON THE WIDOW'S SHARE. By William D. Macdonald

Chancery Practice On The American Frontier: A Study Of The Records Of The Supreme Court Of Michigan Territory, 1805-1836, William Wirt Blume

Michigan Law Review

The act of Congress of January 11, 1805, which created Michigan Territory out of Indiana Territory, provided that the new territory should have a government "in all respects similar" to that provided for the Northwest Territory by the Ordinance of 1787. The Ordinance had provided for the appointment of a court to consist of three judges who should have "a common law jurisdiction. "

Real Property - Tenancy By The Entireties - Alienabilry Of Right Of Survivorship, Robert Brooks

Michigan Law Review

At an execution sale to satisfy a judgment against her, plaintiff's interest in certain lots which she and her husband held as tenants by the entireties was conveyed to A by sheriff's deed. Subsequently, plaintiff's husband joined A and his wife in a deed of their interest to B, who later conveyed to defendants. After the death of her husband, plaintiff instituted an action as surviving spouse for possession of these lots. The trial court entered a summary judgment for plaintiff, holding that the sheriff's deed conveyed only a severable one-half interest in use and profits of the land …

Fraud On The Widow’S Share, W. D. Macdonald

Michigan Legal Studies Series

This study seeks the answer to a troublesome question: What should be done about gratuitous inter vivos transfers in alleged "evasion" of the widow's statutory share? My thesis is that the statutory share should be replaced by the type of decedent's family maintenance legislation found in the British Commonwealth, and that this legislation should be buttressed with anti-evasion provisions. Inter vivos "evasions" seem to be a permanent and increasingly serious concomitant of our forced share system. Part I, dealing with matters of policy, explores the chief aggravating factors. These factors include the high rate of remarriage, which induces transfers to …

Conflict Of Laws - Custody Decrees - Jurisdiction To Modify And Effect In Sister States, Donald R. Jolliffe S.Ed.

Michigan Law Review

Husband and wife were divorced in Wisconsin in 1956 by a judgment which awarded alimony, custody of the children, and support money to W. The custody decree provided that W be permitted to remove the children to California but that they be allowed to visit H each summer. While H was visiting California in October 1957, he was served in an action commenced by W seeking absolute custody. H returned to Wisconsin and on November 5 asked the Wisconsin court to modify its divorce judgment by awarding custody of the children to him. That court set a hearing and …

Constitutional Law - Due Process- Residence Substituted For Domicile As Basis For Divorce Jurisdiction, Paul Gerding S.Ed.

Michigan Law Review

Plaintiff husband brought a divorce action under an Arkansas statute, which granted state courts divorce jurisdiction on the basis of residence of one of the parties within Arkansas for three months, to terminate a marriage performed in another jurisdiction. Defendant wife, domiciled in California, filed a cross complaint for separate maintenance and attacked the court's jurisdiction to grant the divorce. The lower court held the act unconstitutional in eliminating domicile of one of the parties as a jurisdictional requirement in a divorce action, and, finding that the plaintiff was not domiciled in Arkansas, dismissed the suit. On appeal, held, …

Wills - Contract To Devise - Rights Of Subsequent Spouse With Notice Of Prior Contract At Time Of Marriage, Glenn O. Fuller

Michigan Law Review

Decedent and his first wife executed reciprocal wills pursuant to a contract appearing on the face of the instruments. Each gave the other a life estate, with remainders to substantially identical beneficiaries. After his first wife's death, decedent remarried and in an antenuptial contract agreed to bequeath a sum of money to his second wife in lieu of all her claims against his estate. The second wife had actual notice of the prior agreement at the time of their marriage. Decedent then executed a new will which expressly revoked all prior wills, confirmed the terms of the antenuptial contract, and …

Conflict Of Laws - Tort - Lex Loci Or Lex Domicilii To Determine Interspousal Capacity To Sue?, E. Roger Frisch S.Ed.

Michigan Law Review

Husband and wife, Wisconsin domiciliaries, were involved in an automobile accident in Illinois. W brought suit in Wisconsin against H's insurer for alleged injuries resulting from the accident. The trial court dismissed the complaint on the ground that Illinois law was applicable and did not give one spouse a cause of action against the other for tort. On appeal to the Supreme Court of Wisconsin, held, reversed, one judge dissenting. The Illinois Married Women's Act should be strictly construed as destroying only the remedy in the Illinois courts, but not the substantive right to relief; hence, the Wisconsin …

Personal Property - Gifts - Delivery To Third Party, Thomas A. Dieterich S.Ed.

Michigan Law Review

A husband changed the beneficiary of his life insurance policy from his wife to his mother during a temporary separation and failed to restore his wife as beneficiary after reconciliation. Subsequent to his death the mother, in the presence· of the wife, signed a memorandum "waiving" her policy rights "to" the wife and handed the writing to the insurer's district manager. Before payment of the proceeds the mother discovered that the wife was the beneficiary of another policy and attempted to revoke the memorandum. In insurer's interpleader action, a gift to the wife was recognized. On appeal, held, affirmed. …

Conflict Of Laws - Status Of Foreign Statute - Non-Recognition Of Support Obligation, David C. Berg S.Ed.

Michigan Law Review

The State of California, Department of Mental Hygiene, brought suit in Texas against defendant, a California resident until his removal to Texas in 1954, to recover money expended by the state in support of defendant's mother, an incompetent inmate of a California state institution since 1944. California law requires an adult son to contribute to his parents' support while a similar provision of the Texas law imposes such an obligation on a parent but not on a child. In accordance with the applicable California statute of limitations, the state sued for the monthly payments which had accrued during the four-year …

Descent And Distribution - Joint Ownership - Imposition Of Constructive Trust On Murderer Of Co-Tenant, John B. Schwemm S.Ed.

Michigan Law Review

A husband, owning land with his wife as tenants by the entireties, killed her and immediately thereafter committed suicide. In an action to determine ownership of the realty, both the probate and appellate courts declared that since a relevant disinheritance statute was inapplicable, full title vested in the husband and, upon his death, descended to his heirs. On appeal, held, reversed. Despite the common law nature of such tenancies, equity will impose on the husband a constructive trust in one-half the property for the benefit of the victim's estate. National City Bank of Evansville v. Bledsoe, (Ind. 1957) …

The Conflict Of Laws: A Comparative Study, Second Edition. Volume One. Introduction: Family Law, Ernst Rabel

Michigan Legal Studies Series

This volume, the first in Ernst Rabel's monumental comparative treatise on the conflict of laws, was initially published in 1945. Since then three additional volumes have been added, completing the survey of the systems of conflicts law as originally contemplated. Meanwhile, the first edition of the first two volumes has been exhausted for some time, and the literature of conflicts law has substantially increased, reflecting the new developments that have taken place since 1945. Accordingly, plans for a new edition of the first two volumes were discussed with the author before his death on September 7, I955, and were approved …

Real Property - Adverse Possession - Title Acquired By Husband And Wife, Richard S. Rosenthal, George F. Lynch S.Ed.

Michigan Law Review

John and Maltie Preston moved onto a parcel of land in 1910 where they lived until 1950 when John died intestate. Maltie died intestate in 1954. Title to the land had been perfected by twenty years adverse possession. Evidence showed that the adverse possession was intended to inure to their joint benefit. Complainants, collateral heirs of John, sued in ejectment claiming that John took the whole title by exclusive adverse possession. Defendants, collateral heirs of Maltie, claimed a tenancy by the entirety had been created, with the survivor, Maltie, becoming the sole owner. The court of appeals ruled that the …

Torts - Recent Legislation - Parental Liability Statutes, Joseph T. De Nicola, William J. Wise, Robert C. Casad S.Ed.

Michigan Law Review

Fourteen states now have statutes imposing vicarious liability upon parents for tortious acts of their children. These statutes, with one exception, all have been enacted within the past six years, and they present the most significant attempt to date by legislatures to control the incidence and remedy the effects of juvenile vandalism. The parental liability laws vary with respect to the ages of the children covered, and they place different pecuniary limits on the extent of the parent's liability. Coverage may extend to personal injuries as well as to property damage. All except the Louisiana statute, however, apply only to …

Future Interests - Construction - Implied Condition Of Survivorship, Herbert A. Bernhard S.Ed.

Michigan Law Review

Decedent's will gave the income from his estate to his widow for life. After her death the estate was to be held for an additional ten years, during which time the income was to be equally divided among his named daughters, Jennie, Bertha, Ida and Martha. At the end of the ten-year period, the estate was to be divided among the four daughters in equal shares, with the children of a daughter not surviving the ten-year period to take her share. Martha died three years after decedent's widow died. Plaintiff, as administrator of Martha's estate, objected to the payment by …

Husband And Wife - Right Of Wife To Sue For Loss Of Consortium Due To Negligent Injury To Husband, James M. Porter S.Ed.

Michigan Law Review

Plaintiff brought an action for loss of consortium with her husband, allegedly due to defendant's negligent injury of the husband. In a prior suit the husband's cause of action against the defendant had been settled and dismissed with prejudice. The trial court dismissed the present suit for failure to state a cause of action. On appeal, held, reversed. The wife has a valuable property right of consortium. Iowa statutes pertaining to the rights of married women clearly indicate the intent of the legislature to remove the common law bar of coverture that prevented a wife from maintaining an action …

Torts - Parent And Child-Doctrine Of Parental Immunity, Julian J. Linde S.Ed.

Michigan Law Review

Plaintiff, a minor, sustained injuries in a collision which occurred while he was riding in a car owned and driven by defendant, his father. The complaint alleged that defendant was guilty of willful and wanton misconduct, consisting of speeding on a wet road on a foggy night and of running a stop light. A motion to dismiss on the ground that the suit was contrary to public policy was sustained. On appeal, held, reversed. The doctrine of parental immunity is inapplicable to cases of willful and wanton misconduct. Nudd v Matsoukas, (III. 1956) 131 N.E. (2d) 525.

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 …

Torts - Parent - Child Action By Child For Indirect Interference With Family Relationship, William R. Jentes S.Ed.

Michigan Law Review

Five minor children sued for the loss of their mother's support, care and affection which resulted from the defendant's negligent injury of the mother in an auto accident. Defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. Held, motion denied. A minor child has a cause of action for damages resulting from an indirect, negligent interference with his rights in the family relationship. Scruggs v. Meredith, (D.C. Hawaii 1955) 134 F. Supp. 86.8.

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

Michigan Law Review

Joint ownership of personal property in recent years has become a common practice--one to which husband and wife are especially addicted. The topic is worthy of more than academic concern as demonstrated by the public use of joint titles in the acquisition of all kinds of personal assets, particularly investment securities. A casual conversation with almost any banker would disclose that a very high percentage of accounts owned by married people are held jointly with their spouses. The current popularity of dual ownership, for example, is reflected in the marketing policy of the United States Treasury in the sale of …

Family Responsibilty Under The American Poor Laws: Ii, Daniel R. Mandelker

Michigan Law Review

No substantive statutory provision fulfills the purpose for which it was enacted unless fair and efficient procedures are provided for its enforcement. Under the Elizabethan family responsibility law, enforcement was confined to the parish justices of the peace, who at that time exercised both administrative and judicial functions. The blending of administrative and judicial functions no longer being the rule in American local government, practically all of the American family responsibility statutes provide for some judicial procedure by which the support duty may be enforced. The basic issue with which the courts have been concerned in applying these statutory remedies …

Family Responsibilty Under The American Poor Laws: I, Daniel R. Mandelker

Michigan Law Review

Ever since the enactment of the statute quoted above, first passed in 1597 as part of the original Elizabethan Poor Law, the concept of family responsibility has been linked with the public relief of the poor. Today, more than three-and-a-half centuries later, the basic, residual program of poor relief has survived in the statutes of every American jurisdiction, and practically all the states still have family responsibility provisions based on the English model. Although some jurisdictions have abandoned the family responsibility requirement, the tendency in recent years seems to be toward strengthening the law where it exists.

In spite of …