¶1(dissenting). While I concede that the testator did not intend that the title to the $30,000 mentioned in the first paragraph of the will should immediately vest in his widow, but instead designed that the unexpended balance of such sum should be disposed of as directed in the sixth paragraph, I do not concur in the conclusion that the remainder, after setting apart the $30,000 .and the payment of the legacies provided for in the second and third paragraphs, becomes, upon the death of complainant, subject to the provisions of paragraph 6. The instrument should receive such a construction as will give effect to each and all of its provisions. The fifth paragraph gives to the widow the residue remaining after the segregation of the $30,000 and the payment' of the other legacies, and, it seems to me, contemplates the assignment of that residue to the widow. The instrument nowhere provides that such residue shall remain in the hands of the executors. The sixth paragraph applies to the unexpended balance of the $30,000. The language of that clause refers to the remainder of unpaid legacies, or to such legacies as shall not have been paid over. The latter part of clause 4 simply expresses a preference. The instrument contemplates a fund set apart for the use of the widow, which, in the event of her death, may not be exhausted. Concerning this fund, the testator was solic*259itous. He prefers it to the legacies to strangers, and intended that it should be set apart, subject to investment and control by the executors, and not to any contingencies that might attend its payment over to the widow. A provision for the payment to the widow of a fixed annuity, and such further sums as were necessary, during her natural life, and for distribution at her death of the residue, would have been very simple; but the conclusion arrived at by the majority gives that effect to the instrument, treats.the setting apart of the 130,000 as without purpose, and eliminates from the instrument, and renders entirely superfluous, the fifth paragraph, which is clear and explicit.
102 Mich. 248
Barnes v. Marshall
Decided September 27, 1894
Michigan Supreme Court · decided 1894-09-27
<p>Will — Construction—Vested estate — Remainder.</p> <p>The question involved in this case is whether the will, to construe which the bill. is filed, gives to the wife of the testator the property therein mentioned absolutely or for life. And it is held that the wife did not take an absolute vested estate, but that it was the intention of the testator to place the funds in the hands of his executors, to be paid over to his wife from time to time, and at her death, if anything remained, such remainder to be divided among the other legatees as mentioned in the will. ,</p>
Good law ✅— No negative treatment on recordhow we know
Decree reversed, and one entered In this Court in… · Decided 1894-09-27
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Cited by 10 later decisions — most recently April 1920
10 state decisions
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