In re Estate of Alice J. Raymond, Deceased, _____ Mich _____ (2009), #134461, 4/2/09
Return to Probate Review MenuIn this case the Michigan Supreme Court affirms the Court of Appeals and holds that the probate court correctly construed the will in Petitioner's favor. Three Justices joined in the opinion. One Justice concurred in the result only. Two Justices dissented. One Justice did not participate in the decision.
Decedent and her husband, Claude C. Raymond (Raymond) prepared mirror image wills in January 1979. Decedent died on February 27, 2005. Decedent and Raymond did not have any children. Raymond predeceased decedent. Decedent's will stated that the residue and remainder of her estate should be divided as follows:
a. Fifty (50%) per cent [sic] thereof to my brother [sic] and sisters that survive me share and share alike or to the survivor or survivors thereof.Decedent had five brothers and three sisters. When she died, only two of her brothers were still living. Raymond had six sisters and two brothers. When decedent died, only two brothers and one sister were still living. The estate had assets of approximately $800,000.b. Fifty (50%) per cent [sic] thereof to the brothers and sisters of my husband that survive me, share and share alike or to the survivor or survivors thereof.
Morse, brother of decedent, petitioned the court to construe paragraph A of the residuary clause to mean that brothers of decedent who survived her should receive 50 percent of the residue, with no share going to the descendants of decedent's predeceased brothers and sisters. Morse similarly requested that the probate court construed paragraph B the residuary clause to mean that the brothers and sister of Raymond who survived decedent should receive 50 percent of the residue, with no share going to the descendants of Raymond's predeceased sisters. Morse asserted that there was no ambiguity in the residuary clause and claimed that decedent's use of survivorship language demonstrated an intent to avoid the antilapse statute. Respondents argued that the descendants of the deceased siblings could take their deceased ancestor's share by representation. Respondents asserted that a patent ambiguity resulted from the combination of phrases “that survive me” and “or to the survivor or survivors thereof.” The probate court construed the will as requested by Morse and respondents appealed.
The Court of Appeals affirmed the probate court with one judge dissenting. They analyzed two important clauses of the residuary clause: (1) “To my brother[s] and sisters that survive me share and share alike,” and (2) “or to the survivor or survivors thereof.” As to the first clause, they opined that the phrase “that survive me” clearly limits the class of devisees to the siblings still alive at decedent's death. They then examined the phrase “share and share alike.” They held that such a phrase indicates the decedent's intent to create an equal division among members of the class, usually whose members are related to the decedent in equal degrees, using a “per capita” division. Therefore, they held that decedent, by stating that she wished the residue of her estate to pass to the siblings that survived her “share and share alike,” she indicated that she desired a per capita distribution, under which the court must distribute the devise among the surviving heads on the generational line thereby shutting out any claims by descendants of any predeceased siblings.
As to the second clause, “or to the survivor or survivors thereof,” respondents argued that the clause must be given effect whereby they are also entitled to take a portion of the residue since they are “survivors.” The Court of Appeals rejected this argument that survivors includes descendant. They held that in a legal context, “survivor” is defined as “one who outlives another,” as, for example, when one person out of two or more remain alive after another dies. Under the plain language of the will, respondents are not entitled to inherit because they are not the “survivors thereof,” where “thereof” refers to the surviving siblings. The Court next rejected respondents' argument that the phrase “brothers and sisters that survive me,” and the phrase “to the survivor or survivors thereof” are redundant under the probate interpretation and the Court should give meaning to each word of the will. The Court held that it would be nonsensical to conclude that the will drafter intentionally constructed the residuary clause in such a way as to indicate contradictory intents within a single sentence. They held that the better course was to read the clauses together as reinforcing decedent's intent to equally divide the residue among the surviving siblings. Finally, the Court rejected respondents' argument that the court's interpretation would violate the decedent's intent that each side of the family receive an equal one-half share of the estate. This could happen if there were no brothers or sisters on one side at decedent's death. The Court held that because there were surviving sibling on each side of the family at the time of decedent's death, they would decline to engage in speculative application of the rule of intestacy avoidance.
Under our current antilapse statute, “words of survivorship, such as in a devise to an individual 'if he survives me' or in a devise to 'my surviving children, ' are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.” However, the Court concluded that the language of the residuary clause taken as a whole--especially taking into account the use of the three separate statements: “that survive me,” “share and share alike “ and “the survivor or survivors thereof”--expresses an intent to make a provision for the death of the beneficiaries contrary to that provided for in the antilapse statute.
The Court of Appeals therefore concluded that the probate court correctly construed decedent's will to mean that her surviving sibling receive 50 percent of the residue and Raymond's surviving siblings receive 50 percent, and the descendants of their predeceased siblings receive nothing.
The Michigan Supreme Court, in affirming the lower court decisions, agreed with the probate court's ruling that the identified group who takes under the terms of the residuary clause is comprised of the brothers and sisters of Alice and Claude Raymond. However, that group does not include all siblings, but is limited by the phrase “that survive me.” The inclusion of this express limitation necessarily precludes those siblings who predeceased Alice Raymond from taking a portion of the testator's estate under the residuary clause. They further agreed with the probate court that the remaining clause “or to the survivor or survivors thereof” necessarily references the group described earlier in the disjunctive phrase -- the surviving brothers and sisters. The three Justices went on to point out that the construction advanced by the Court of Appeals' dissent would permit a gift to the predeceased siblings of the testator, a group that was specifically excluded by the plain language of the will.
I do not believe we can take much away from this plurality opinion. As I state in my earlier review of the Court of Appeals case, it may have been more helpful to have found ambiguity and to have held a hearing to better determine decedent's intent. I also would not recommend using this language in wills because it has the apparent blessing of our highest court since only three Justices are of that opinion. I would recommend that when drafting a will, the drafter try to avoid taking short cuts by using “magic” words. This situation and litigation could have been avoided by using a little more time and ink to spell out exactly what the testator intended.
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