
    Lizzie Clark Roehm v. The Estate of David C. Clark, Deceased.
    
      Will — Payment of legacy — Support of family of testator,
    1. A testator appointed his widow sole executrix of his will and guardian of' his minor children, and directed that during their minority, from the income of his entire estate, which was placed under her control, she should maintain a home for herself and said children, provide for their proper education, pay certain legacies, and add the remainder of the income, if any, to the estate. And it is held that the legacies must yield to the necessities of the family, which, must first be provided for.
    2. The fact that the executrix fails to reduce expenses, as her altered circumstances would seem to require,'is unimportant, so long as the income from the estate is not extravagantly used.
    Error to Wayne. (Hosmer, J.)
    Argued January 9, 1895.
    Decided January 22, 1895.
    Appeal from an order of the probate court granting the petition of a legatee for the payment of a legacy or the removal of the executrix. Petitioner brings error from an order of the circuit court reversing the order of the probate court.
    Affirmed.
    The facts are stated in the opinion.
    
      James O. Smith, Jr. (Hoyt Post, of counsel), for appellant.
    
      
      .Edwin F. Gonely and Orla B. ■ Taylor, for the estate.
   Hooker, J.

David O. Clark, late of Detroit, who died •June 3, 1888, left a widow, Marcella Clark, and six children, -of whom petitioner is one. Of these children, one died .May 15, 1891, and three others were minors, aged, respectively, 14, 10, and 8 years. The first clause of Mr. Clark’s •will appointed his wife, Marcella Clark, executrix of the will and testamentary guardian of the minor children, and •.requested that no bond be required from her in either ■capacity. The second clause directed that unsecured debts be paid promptly out of his personal estate. The third clause directed that a mortgage to the Detroit Savings Bank, of $18,000, be paid out of the testator’s share in the common stock of the partnership of Clark, Vinton & <Co. It advised his wife to pay from the proceeds of his life insurance (which, by its terms, belonged to her) at least ■410,000 upon the principal of this mortgage, and provided for her repayment, in case of her compliance, by a con•ditional bequest of a sufficient -sum from said partnership property to reimburse her. The fourth, fifth, and sixth •clauses of the will were as follows:

“Fourth. Subject to the bequest to my wife, above, and ■•■subsequent directions of this will, I give, devise, and bequeath to each of my children, Nettie M. Clark, Lizzie A. ■Clark, D. Charles Clark, Mary Clark, Hazel K. Clark, and Harold Shaw Clark, an equal, undivided share of my real ■and personal estate, to them and to their heirs and1, assigns iorever; but the right of possession of the shares so given to them shall not become operative until the youngest child who shall survive to reach majority shall become of .age. The foregoing devise and bequest to my children shall also be subject to the condition that if any one of my children shall die under age, and without issue, the .share of such child I give, devise, and bequeath, in equal parts, to the remaining children. But the shares of each, under the foregoing devise and bequest, shall be deemed do be vested thereby, so that any one or more of my said ■children dying before the youngest becomes of age, having reached majority, or leaving issue, the share of such child ■shall go to such '‘issue, or in accordance with a lawful will made by such child after becoming of legal age.
“Fifth. Before distribution shall be made of my undivided estate to my children, as provided above, provision shall be made for my wife; and, to that end, I give, devise, ■and bequeath to my wife, Marcella Clark, for her natural life, the use of one-third of my personal and real estate, less the amount of insurance upon my life she may have received, and after her death the estate so set off to her ■shall become the property of' my said children, in all respects, as the remainder of the estate according to the provisions of the fourth paragraph of this will. I also give to my wife all our household furniture of every kind.
“Sixth. Pending the minority of the youngest of my said children who shall live to be 21 years of age, I direct my executrix to collect my personal estate, and invest the same, as far as practicable, in good, interest-bearing security, and collect the entire income thereof; also, to take and retain possession and control of my real estate, to collect the rents, to keep the property in good repair, and to pay the taxes and insurance upon the same. For the purpose of ■such control, I authorize her to make leases for such periods as she may deem best, not extending more than 3 years beyond the time when the youngest child will reach majority. From the income of the entire estate so to be•collected by my wife, as executrix, I direct her to maintain a home for herself and all our children, and to provide for their proper education; and if anything can be ■saved from the. income, after proper and comfortable provision for the family, and the payments here following, I direct that it. be added to the capital of the estate. .From the annual income, I direct my executrix also to pay to each of my daughters, Nettie M. and Lizzie A. ■Clark, and to my daughters Mary and Hazel K., when they become 21 years of age, respectively, the sum ■of $125 each year, so long as they remain at home, and, in ease they cease to live at home with my family, then to give them each the sum of $300, annually, payable •quarterly; such payments to begin at the end of one year from the time this will be proved. I recommend my •executrix to give to my son D. Charles similar payments .after he becomes of legal age.”

Mrs. Clark has managed the estate, with the aid of Mr» Bissell, her counsel, and possibly her daughter, the petitioner. In March, 1892, a petition was filed in the probate’ court by Mrs. Roehm, the daughter of Mr. and Mrs. Clark, asking that the latter be required to pay the petitioner the-legacy provided by the sixth clause of the will, or, in default thereof, that she be removed from her office as executrix;, and, being carried to the circuit court, the prayer of petitioner was denied, from which decision she has appealed: to this Court.

The sixth clause of the will directs the maintenance of a home for the widow and all the children, and the education of the latter, from the income of the entire estate, which is subjected to this burden and the payment of the legacies mentioned. We understand, from the argument, that it is not disputed that the legacies must yield to the-necessities of the family, as, in our opinion, the language’ of the will implies, and that, therefore, the case resolves-itself into the question of the sufficiency of the fund for these purposes. It appears that Mrs. Clark advanced $13,000 of her own insurance money to pay on the mortgage, and the Clark, Vinton & Co. property was sold. At. the close of the first year, the estate consisted of ^the following property:

1. Second avenue block (four houses and lots), at. $25,000
2. Brainard street house and lot.................. 6,500
3. Bagg street house and lot...................... 11,000
4. High street house and lot.................. 2,800
5. Half interest in Otsego, county lands........... 720 •
6. Henry street houses and lots................ 12,500
Total....................................J — - $58,520

The Bagg street house was, and still is, the homestead, and appears to have consisted of a valuable piece of land, upon which was a 'reasonably good house.

It is contended on behalf of the petitioner that Mrs» Clark has been extravagant (1) in her expenditures for the family; (2) in remaining in the Bagg street house, instead •of taking one of the less valuable places; (3) in building a $3,000 vault.

In support of the first of these propositions, it is said that she paid for the family the following sums:

For the first 13J months........................ $4,136 35
For the second year............................ 3,097 18
For the third year.............................. 3,612 36

These items appear in accounts which seem to have been «drawn by Bissell, signed by Mrs. Clark, and filed in the probate court. The accounts show that for the year ending July 15, 1890, the gross receipts from the estate amounted to $3,412.92; disbursements, in the nature of expenses incident to the estate, $2,088.96; leaving a balance, subject to use for the support of the family and payment of the legacies, of $1,323.96.

The next account (July 15, 1890, to August 1, 1891) shows:

Gross receipts....................................$3,563 92
Expenses of the estate.......................'____ 2,717 78
Balance......................................$ 846 14

■ The year ending August 1, 1892, makes a better showing:

• Total receipts....................................$3,430 92 ■
Expenses (which included the funeral of the child
who died).................................... 2,025 99
Leaving a balance of........................$1,404 93

The fact remains that the actual expenses of supporting the family are shown to have been much more. Perhaps there is room for saying that Mrs.-Clark has not succeeded •in reducing expenses as her altered circumstances seem to Require, but that fact is unimportant, so long as the income from the estate, which is chargeable with this burden, has not been extravagantly used. We are of the opinion that the circuit court reached a just conclusion-when it determined that the petitioner was not entitled to relief, and. dismissed the petition without prejudice to-another application when altered circumstances may show that it is warranted.

His judgment will therefore be affirmed, with costs.

The other Justices concurred.  