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estate, and that the agreement made April 24, hereinbefore set out, be canceled and held for naught because plaintiffs have neglected to abide by the terms thereof. The plaintiffs answered the cross-bill. The cause came on to be heard in open court, testimony was offered and received, from which, and from the pleadings, it appears that when the will was drawn the testator owned 160 acres of land, one forty of which he sold in his lifetime for $1,625, which sum appeared to be a part of his personal estate when he died. With respect to the making of the will, the testimony of the lawyer who drew it is to the effect that the testator brought a penciled memorandum to his office, asking him to prepare a will as indicated in the memorandum. It was prepared when he returned to the office and testator read it, called attention to the division of the land as provided for in the draft of the will and made objection to it. Upon this subject, the lawyer further testified:

"Q. What did he say about it?

"A. He wanted to know how it could be remedied without destroying the entire will and write an entire new one. He did not have time to wait. I thought a minute and I thought after getting his explanation of what he wanted of that land, I told him I thought it could be corrected by adding another clause expressing his intentions. At that time the fifth clause was not there at all, when he came back.

"Q. What statement did he make to you?

"A. He wanted it changed. He stated this: 'I don't intend for it to cover the entire one-third of that land. I want her to have the home with the buildings,' he says, 'I want to be governed according to the valuation. That forty is worth nearly or quite half as much as the entire balance of the land, had all of the buildings on and I want her to have that for a home.' Then I suggested that there be added the fifth clause to state his intention, what he meant that it should be, one-third value in real estate. I did

206-Mich.-19.

not describe any land value whatever he died seized. Same way with the personal property. My memory was at that time he had one hundred sixty acres. After I suggested that, he says, 'that is what I want, that is what I intend, what I want.' So I wrote it and he looked it over, read it carefully. He said 'Yes, that is all right.' I wrote that, then I called in a witness that was passing by, or rather just coming into the office. He witnessed the will, put it away in my office safe. I kept it there until after he was dead. "Cross-examination, by Mr. Locke:

"I presume that the east 40 acres without the buildings is equal in value to either of the other forty acres. At the time the will was drafted there was 160 acres, I think.

"That is all.

"By the court:

"Q. What did you understand the law to be at that time with reference to the widow's right in real estate if no will had been made?

"A. Make selection of her dower. I understand the law to be, statute very plain for a great many years on it, if she made selection of her dower, had it set off to her, it was to be set off to her according to value. "Q. I know, but what share would she own? "A. One-third.

"Q. Would she have it as dower or heir?

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'A. She would have it as dower.

"Q. You understand the law to be that way? "A. Then if she selected it.

"Q. Didn't you know the law had been changed so that the wife inherited actually one-third of all the real estate a man died seized of if there is children, and if there is no children, she could get one-half? "A. I wasn't aware of that fact.

"Q. If you had not made any will at all she would be just as well off in reference to real estate, as you now claim she would be by this will?

"A. If that is the law now.

"The Court: I asked the question for the purpose of ascertaining why he deemed it necessary to put anything about the buildings at all in, if the husband did not intend she would take any more than the value. His expression in this will don't make it any better

for the widow as to real estate than as though there had been no will made."

The decree, from which both parties appeal, construes the will as meaning that the widow was devised an undivided one-third in value of the real estate including the buildings, holding that she is entitled to select any one-third of the real estate after the same is divided into thirds of equal value. The decree further provides:

"That said Nelson David Hansbarger is bequeathed the sum of $1,000, the payment of which is made a charge upon the remaining two-thirds of said real estate and buildings after the said Ada R. Hansbarger has selected her one-third of said real estate and buildings according to value; that the executor of said last will and testament is authorized to sell said remaining two-thirds of said real estate after said Ada R. Hansbarger has made her selection as aforesaid for the purpose of paying the said bequest to the said Nelson David Hansbarger, that the remainder of the said two-thirds of the said real estate after the payment of the said $1,000 to the said Nelson David Hansbarger, is devised in equal shares to the said Harley Hansbarger, William Hansbarger, Plenie Hansbarger, Arthur Hansbarger, and David Nelson Hansbarger, share and share alike in fee simple,"

-and that the contract of April 24th has been forfeited by the plaintiffs and is canceled and the parties thereto relieved from all liability thereunder. Provision is made for filing a petition in this cause for a supplemental decree ordering a partition of the real estate according to the construction of the will indicated by the decree. It is recited in the decree that the testimony of the scrivener relative to conversation had by him with the testator relative to the making and execution of the will is stricken from the record.

OSTRANDER, J. (after stating the facts). It is the rule in this State that persons having such an interest

in an estate as entitles them to contest a will may make agreements to forbear or prevent contests. Bean v. Bean, 144 Mich. 599; Hull v. Hull, 149 Mich. 500; Garvin v. Stone, 152 Mich. 594; Conklin v. Conklin, 165 Mich. 571; Layer v. Layer, 184 Mich. 663; Sellers v. Perry, 191 Mich. 619. We are of opinion that the agreement in this case is, plainly, not to contest the probating of the will. The agreement was executed when the will was, without contest, admitted to probate. No appeal was taken and the widow paid the legacy to Nelson David Hansbarger, releasing the real estate and the proceeds of it from any lien in his favor. The will, however, was still an instrument, the meaning of which was to be determined. Admitting it to probate necessarily submitted it to the probate court for construction, if construction was required, and to interpretation. None of the parties agreed to submit to any assignment of the estate which the probate court might make. And when the widow indicated by her election that she gave to the will a meaning different from the one claimed for it by the other persons in interest, the power of the chancery court to settle the dispute was clear. Judicial construction of this instrument under the circumstances does not involve a contest of the probating of the will. The agreement expressly recites that the estate shall be administered "according to the terms of said will except as herein provided." The question presented to the court is one of the meaning of the terms of the will. It is true the preamble to the agreement expresses as an inducement for making it the avoidance of all litigation and the expense of the same and a desire to reach an amicable settlement of the estate. If, construing the entire agreement, there seems to be any difference in meaning between these or any of these preliminary statements and the agreement proper, the operative part, being clear and un

ambiguous in meaning, must be given effect. This is the general rule. 24 Am. & Eng. Enc. Law (2d Ed.), p. 59. See, also, Black v. Herring, 79 Md. 146 (28 Atl. 1063); Chase v. Dickey, 212 Mass. 555 (99 N. E. 410); Chew's Appeal, 45 Pa. St. 228; Rood on Wills, § 622; Page on Wills, § 683.

. The circuit court has determined that the widow was wrong in her construction of the will and was claiming too much-has decided that by the terms of the will she cannot have what she claims. This construction preserves to the widow a right of selection, which the will gives to her, does no violence to any language contained in the will. Testator might have devised to her a particular portion, bounding it or describing it. It is not clear, we think, that the fifth clause of the will is entirely meaningless; certainly it does not cast doubt upon the proposition that the testator devised one-third of his real estate, in value, to his wife.

We affirm the decree in respect to the construction of the will and reverse it in so far as it adjudges the agreement of the parties to be forfeited and canceled. Plaintiffs will recover costs of this appeal.

BIRD, C. J., and MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.

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