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Eberts v. Eberts, 42 Mich. 404, 4 N.W. 172

Facts

Phillis Eberts executed a will devising property to the 'surviving children' of her deceased brothers, Robert M. Eberts, Joseph Eberts, and Richard Eberts. At the time of the will's execution, some of the brothers' children were alive, but several died before the testatrix's death. The dispute arose over whether the term 'surviving children' included those who died after the will was made but before the testatrix passed away.

At the date of the will the brothers of the testatrix had been dead many years, but a son of Richard, and several children of each of the other two, were living.

Issue

Did the term 'surviving children' in the will refer only to those children alive at the time of the testatrix's death, excluding the issue of children who died after the will was executed?

It is conceded by counsel for defendant Joseph M. Eberts that the general rule of construction of wills requires the words 'surviving children' to be interpreted as intending only those who were surviving at the death of the testator.

Rule

The general rule of construction for wills is that the term 'surviving children' is interpreted to mean those who were alive at the time of the testator's death, unless clear evidence suggests a different intent.

The statute, (Comp.Laws, § 4349,) on which some reliance is placed, cannot help this defendant.

Analysis

The court analyzed the will's language and the surrounding circumstances, concluding that the testatrix intended for the term 'surviving children' to refer to those alive at her death. The evidence presented did not provide sufficient clarity to support a different interpretation, and the court emphasized that the will must be construed based on the testatrix's intent at the time of her death.

The testatrix is mentally discriminating the objects of her bounty, and apportioning among them the bounty itself.

Conclusion

The court affirmed that only the children of the brothers who were alive at the time of the testatrix's death were entitled to the property, rejecting claims from the issue of those who had died after the will was executed.

The result follows as a necessary one.

Who won?

The prevailing party was the surviving children of the testatrix's brothers, as the court ruled in their favor based on the interpretation of the will.

The decree must be modified to conform to this view.

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