which the provision was made. Thus, an estate was liable for care, nursing and medical aid of a daughter, who died a minor, where the will of the testatrix made provisions for support of the daughter27, but the obligations to support children, who are legatees under the will, is suspended, when they leave the household of the devisee28, and where the education is left to the devisee and it was very meagre which the children received, an accounting cannot be had on those grounds29. The circuit court has jurisdiction to provide for the support and education of children, who are are in destitute circumstances, when legacies to minor children are contingent upon the legatees arriving of age30, and the necessities of the family, for which provision must first be made, must be given heed before the legacies, which must yield to them31. $268. Transactions Between Devisees or Legatees. In general it may be said that it is entirely competent for legatees to agree to any division of special legacies bequeathed to them, they may see fit to make, and no heir or residuary legatee can complain32. An agreement between the legatees is valid in the absence of undue influence, for the legatees are not deprived of any rights given under the will33. In a case where a testatrix made bequests, among others, to the children of several of her deceased brothers and sisters and the legatee under the 27. Plant v. Weeks, 39 Mich. 117. 28. Forbes v. Darling, 94 Mich. 621, 54 N. W. 385. 29. Forbes v. Darling, 94 Mich. 621, 54 N. W. 385. 30. Knorr v. Millard, 57 Mich. 205, 23 N. W. 807. 31. Roehm v. Clark's Estate, 104 Mich. 1, 94 N. W. 882; See Cole v. Cole's Estate, 125 Mich. 655, 85 N. W. 113. 32. Wilkins V. Hukill, 115 Mich. 594. 73 N. W. 898. 33. Hull v. Hull, 149 Mich. 500, 112 N. W. 1126. will entered into an agreement by which the property was divided and the children were described as heirs of the deceased brother and sister, the word was merely descriptive and therefore did not convey any rights to the parties as heirs at law of the testatrix34. The settlement of the family relations was adjusted, in the absence of fraud, where certain heirs and devisees entered into an agreement to distribute the estate in full upon certain terms35. It may be said that an agreement made by residuary legatees under a will is void for want of consideration, in the absence of fraud or mistake in making a settlement, where the proceeds derived from an insurance policy-not disposed of by will-should be paid to the mother of the legatees, who was the widow of the testator, and the agreement was made after a complete settlement in which the rights of all the parties to the estate were fixed without affecting their rights to the policy. On the other hand the agreement was supported by a sufficient consideration where made by way of adjustment of frauds or mistake in settlement37. It is entirely competent for mother and son who are both executors and legatees to will the mortgage as a legacy instead of including it in the assets, and their possible liability to be called on to contribute as legatees in the event of failure of assets would not prevent their lawful retention of the note and mortgage to where a mortgage was given by will to the widow of the testator for life and the remainder over to his son, and the two were appointed execu 34. Wilkins V. Hukill, Mich. 594, 73 N. W. 898. 115 35. Sheley V. Brooks, 114 Mich. 11, 72 N. W. 37. 36. Sheley V. Brooks, 114 Mich. 11, 72 N. W. 37. 37. Sheley V. Brooks, 114 Mich. 11, 72 N. W. 37. tors38. Where a will was conditioned on the payment of the debt of the testator by two legatees and one of them agreed with the other to pay his share according to the amount of the indebtedness as found by the probate judge the party so agreeing could not charge the other with a payment which he had made before such finding if he had never filed a claim for its amount against the estate for allowance; and the finding of the probate court would be conclusive under the agreement, as to the amount due from each39. The life estate merges in the fee where a devise to a widow of a life estate becomes vested in the owners of the fee40. $269. Bequests to Creditors. The acceptance of benefits under a will cancels the claim of the devisee or legatee11. §270. Rights of Creditors of Devisees and Legatees. It is consonant with the principles of equity that where a legatee was heavily indebted to the estate of the testator and his estate was also heavily in debt, the proofs showing apparently insolvency, and a bill having been filed to subject the interest of a judgment debtor as a legatee under a will of the testator, the bill should be retained until final settlement of the estate, to the end that, if it shall appear on such settlement that there is anything due the legatee, 38. Proctor V. Robinson, 35 Mich. 284. 39. Dennis v. Sharer, 56 Mich. 224, 22 N. W. 879. 40. Ryder V. Flanders, 30 Mich. 336. See following cases relating to the general subject; 126 the creditor may be in position to move for the proper decree42. In a case where a testator devised lands as follows: "Unto the heirs of my son that his wife has by him, or may have by him hereafter;" with a further provision that "my son shall have his support and living out of the estate that I have hereby given to his children so long as he shall live," a life estate was not created for the son, but the land vested in his children, and the crops grown thereon were not subject to the son's debts43. §271. Actions by Devisees or Legatees. An action of ejectment may be brought before probate of the will by a devisee for real property devised to him11, where an executor was entrusted with the duty of keeping a legacy for a minor heir until she was of age and paid it over during her minority to her guardian, the legatee ought to have brought action against the executor and not against the guardian upon his bond for the same, for the executor still remained liable, and the guardian had no business with the money45. 42. Morgan v. Kingman, 123 Mich. 197, 871 N. W. 1089. 43. Rose v. Eaton, 77 Mich. 247, 43 N. W. 972. 44. Richards V. Pierce, 44 Mich. 444, 7 N. W. 54. 45. Hinckley V. Washtenaw Probate Judge, 45 Mich. 345, 7 N. W. 907. CHAPTER XVI. CONSTRUCTION. $273. Interpretation and Construction. $276. Intention of the Testator. $277. How the Intention is Ascertained. $278. How the Intention is Ascertained From the Words of the Will. $279. How Intention to be Ascertained From Situation and Circum stances. $280. How to Ascertain General or Particular Intention. $281. Effect Given to Intention. $282. Language of Instrument. $283. Construction in Favor of Instrument. $284. Time From Which the Will Speaks. $285. The Rule in Shelley's Case Abolished. $286. Restraints Upon Alienation. $287. Construction as to Time When Estate Vests. $288. General Rule as to Construction of Legacies. $289. Bequests on Condition. $290. General Residuary Bequests. $291. Repugnant and Contradictory Clauses. $292. Construction as to Partial Invalidity. $293. What Law Governs. The preliminary questions associated with every last will and testament are: First, was the testator at the time of making the will of full age? Second, was he of sound mind and memory? Third, was he under no restraint? Fourth, was the will executed with all the formalities re quired by law? Fifth, was it subsequently revoked? Sixth, was it properly admitted to probate? |