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Home > Journals > Michigan Law Review > MLR > Volume 41 > Issue 4 (1943)

 

Abstract

By the second and third clauses of his will Lester Evans bequeathed to his son and daughter $35 each. The fourth clause disposed of "all the rest, residue, and remainder of my estate" to seven named persons of no relation to the testator or among themselves. One of the named persons was his bride-to-be, and she was included for the purpose of carrying out the antenuptial contract to leave her one-seventh of his estate if he were to predecease her. The clause concluded, "each person shall take an equal undivided one-seventh (1/7) share, absolutely and forever." The fifth clause explained the testator's intention regarding his children as "I give nothing, except the two legacies above provided for, to the immediate members of my family because in the separation from my wife [the first] I paid a large sum which I feel is all they are entitled to out of my estate." At some date subsequent to the execution of the will, the testator erased one of the names and crossed out two others of the residuary legatees. Also, the wife named in the will died before the testator, with a resulting lapse of her share. The son and daughter, as next of kin, claim four-sevenths of the property as intestate property. The three remaining residuary legatees claim that as members of a class they are entitled to divide the entire estate into thirds, because the intent of the testator was to die testate as to all his property. Held, the fourth clause naming seven unrelated persons to take equal one-sevenths of the residuary estate did not create a class gift, and the subsequent obliterating of three of the names and lapse by law of a fourth created a partial intestacy as to four-sevenths of the testator's property, which the son and daughter take as next of kin. Cattell v. Evans, 301 Mich. 708, 4 N. W. (2d) 67 (1942).

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