Clippinger v. Title Insurance & Trust Co.

SHINN, J.,

pro tem.

This is an appeal from a decree settling a trustees ’ final account and for distribution.

The testator, Edwin J. Kruce, by his will, left a portion of his estate in trust for the immediate benefit of his daughter, Edwina Janet Kruce; the residue of his estate he left to his wife, Lydia C. Kruce. The terms of the trust which we are called upon to interpret read as follows: “(d) If my said daughter, Edwina Janet Kruce, shall die before she attains the age of 41 years, leaving no issue her surviving, and my said wife, Lydia C. Kruce, is then still living, the income from said trust estate, created primarily for the benefit of my said daughter, shall be paid to my said wife, for and during the term of her natural life, and thereupon the moneys,

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property and securities then in said trust shall be transferred and paid to her heirs at law, then living, in accordance with the laws of the State of Michigan, then in force, governing the descent and distribution of property of persons dying intestate.”

Lydia C. Kruce predeceased her daughter Janet, and the latter died at the age bf 28 years without issue. The trial court so construed the quoted provision of the trust as to exclude appellants, heirs at law of Lydia C. Kruce, from any share in the principal of the trust estate and distributed the same to respondent, executor of the will of Lydia C. Kruce. The theory adopted by the trial court was that the will failed to make specific distribution of the

corpus

of the trust estate, and that the same therefore went to the estate of Lydia C. Kruce, under the residuary provision of the will. This ruling presents the first question for our consideration.

The bequest of the

corpus

of the trust estate to appellants was conditioned upon the death of Janet before attaining the age of 41 years, and without issue, and also upon the death of Lydia C. Kruce. Under a literal reading of the will the bequest of the remainder was also contingent upon Lydia’s surviving Janet. The word “thereupon” relates to and designates the events in which the remainder was to go to the heirs of Lydia, one of the stated events being that the wife should be living upon termination of the daughter’s estate. Appellants ask us to disregard the words “and my said wife Lydia C. Kruce is then still living” as surplusage, because without them the will would sufficiently provide for the payment of income to the wife during her lifetime. We would not be justified in doing this. A will should be interpreted so as to give effect to every expression therein unless to do so would interfere with or prevent the obvious wishes of the testator. It clearly appears that the will gave the principal of the trust estate to the heirs of Lydia C. Kruce in the event of her surviving her daughter, and it is equally clear that the testator did not specifically provide for the contingency that she might predecease her daughter, as she in fact did.