
    PARRISH v. VAN DOMELEN.
    1. Wills — Legacies to Subscribing Witnesses.
    Devises, legacies and gifts in a will to subscribing witnesses are wholly void unless there are 2 other competent subscribing witnesses to the will (OL 1948, § 702.7).
    2. Same — -Presumptions—Intent to Dispose of Entire Estate— Construction — Rebuttal.
    A testator is presumed to have intended to dispose of Ms entire estate and not to die intestate as to any part thereof and a will should be so construed unless the presumption is clearly rebutted by provisions of the will or by evidence to the contrary.
    3. Same — Intent.
    The court must take into consideration the provisions of the will and the circumstances existing at the time the will was executed in considering the intent of the testator.
    4. Same — Specific Bequest — Partially Yoid Bequest in Residue —Class Gift.
    Brother of testatrix who was bequeathed $1,000 was not entitled to share in residue which had been bequeathed to her late husband’s brother and wife, subscribing witnesses to the will and their 4 named children, where it appiears from the will and circumstances surrounding execution of will that testatrix and her brother were somewhat unfriendly and that she lived with and was eared for by her brother-in-law and his wife and family, intended to leave them the entire residue as a class, and that the void bequest to the subscribing witnesses went to the 4 children rather than descend to brother as intestate property, there being nothing to indicate he should participate in the distribution of the estate except for the specific bequest (CL 1948, § 702.7).
    
      References for Points in Headnotes
    [1]57 Am Jur, Wills '§§ 327, 328.
    
       Proof, or possibility of proof, of will without testimony of attesting witness as affecting application of statute relating to invalidation of will, or of devise or legacy, where attesting Witness is beneficiary under will. 133 ALR 1286.
    
       57 Am Jur, Wills §§ 1158, 1159.
    
       57 Am Jur, Wills § 1144.
    
       57 Am Jur, Wills § 1447 et seq.
    
    
       Effect of restrictive words or reference to specific property in residuary clause to limit scope of clause as regards lapsed or ineffectual legacies and devises. 10 ALR 1522.
    
      Appeal from Oceana; Pugsley (Earl O.), J.
    Submitted June 5, 1952.
    (Docket No. 34, Calendar No. 45,479.)
    Decided October 6, 1952.
    Bill by George Parrish against Henry Yan Domelen, administrator of the estate of Sadie Plnmhoff, deceased, and others to construe the will of' Sadie Plumhoff so as to have a portion of estate-go to plaintiff as heir-at-law. Decree for defendants. Plaintiff appeals.
    Affirmed.
    
      Marcus, Kelman, Loria, McCroskey & Finucan {Jerry 8. McCroskey, of counsel), for plaintiff.
    
      J. Donald Murphy and Harold Van Domelen, for defendants.
   Reid, J.

Plaintiff filed the bill for the construction of the will of his deceased sister, Sadie Plumhoff, Prom a decree for defendants, plaintiff appeals.

Sadie Plumhoff died February 25, 1950, leaving a will which had been made August 18, 1948, and was duly admitted to probate June 7, 1950, which will is as follows:

“Last will and testament of Sadie Plumhoff.
“Being in my right mind and of my own free will I give and bequeath the following residue:
“To my brother, George Leonard Parrish the sum of $1,000.
“Bonds, notes and mortgages to be kept Until maturity and all other residue to be divided equally between
“Prank & Myrtle Plumhoff
Burton Plumhoff
Natalie Plumhoff Grantz
Ruth E. Plumhoff
Dorothy Mae Plumhoff
“Sadie Plumhoee
“Witness:
Prank Plumhoee
Myrtle Plumhoee”

The 2 witnesses to the will, Prank Plumhoff and Myrtle Plumhoff, are the same 2 persons mentioned in the will. It is conceded by all parties to this •case, that the provision in the will for the 2 witnesses is void under CL 1948, § 702.7 (Stat Ann 1943 Rev § 27.3178 [77]), which, so far as pertinent, is as follows:

“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be 2 other competent subscribing witnesses to the same.”

Plaintiff claims that the share of the residue which, under the void bequest, was attempted to be bequeathed to the defendants Prank Plumhoff and Myrtle Plumhoff, should be construed to be intestate estate, and therefore under our statute should go to plaintiff as sole heir-at-law of deceased.

Defendants claim that the bequest of the entire residue of the estate to the defendants Prank and Myrtle Plumhoff and their children, Burton Plumhoff, Natalie Plumhoff Grantz, Ruth E. Plumhoff, and Dorothy Mae Plumhoff, should be construed as being a class bequest, and that the portion of the residue which, under the void bequest, was attempted to be bequeathed to the defendants Prank and Myrtle Plumhoff, remains in the residue as part of the testate estate, and that the 4 named sole children of Prank and Myrtle Plnmhoff should take the entire residue of the estate under the last paragraph of the will.

Deceased, Sadie Plumhoff, was the widow of Carl Plumhoff, a brother of defendant Prank Plumhoff. Carl died October 31, 1946.- Carl and Sadie for about 3 years before his death lived at 417 State street, Shelby, Michigan, a house and lot owned by them by the entireties. In the year following Carl’s death, Sadie sold the house and furniture and lived thereafter until her death, with defendants Prank and Myrtle Plumhoff, in a very friendly relationship, without paying nor being expected to pay board or rent. Sadie was also in a very friendly relationship with the 4 children of Prank and Myrtle Plumhoff, Burton, Natalie, Ruth and Dorothy'Mae named in the will.

Por a considerable period before making her will, deceased was in an unfriendly relationship with her brother and sole heir-at-law, George Parrish, the plaintiff. She resented his excessive use of liquor, disliked his women companions, and further resented plaintiff’s assertions that she, Sadie, beat plaintiff out of $1,000 respecting property formerly the residence of their parents in Kent City, Michigan. There is testimony that deceased Said her brother, plaintiff, would not receive any part of her estate; and that she afterwards changed her mind and said that she would leave him the thousand dollars that he claimed she had beaten him out of.

' It is clear and undisputed by the parties to this suit that unless the residuary clause of the will is construed as making a gift to a class, the provision for Prank and Myrtle Plumhoff would be void, should be treated as intestate estate, and awarded to plaintiff accordingly.

It is unnecessary to make a resume of the various ■cases in which dispute has arisen as to whether a ■certain bequest should be construed as a gift to .a class or otherwise. Two cases prominently discussed in the briefs in the instant case are In re Ives’ Estate, 182 Mich 699, and In re Brown’s Estate, 324 Mich 264, which cases with the cases cited therein, indicate sufficiently the law of Michigan on the point involved.

In the Ives Case, we say (syllabus 4):

“Where the testatrix disposed of her property by •certain bequests and added a residuary clause stating that she gave all the rest, residue and remainder ■of her estate, both real and personal, and wherever .situated to her 3 brothers and sisters, an undivided third to each, and. 1 of them later died, to whom the testatrix gave $10,000 by a codicil to the will, .and who was mentioned in the original draft of the instrument in a clause which stated that she was sufficiently provided for, and where family history unci undisputed circumstances pointed in’ the same direction, the adopted daughter was not entitled to .any share of the residue of the property.”

We further say, page 706:

“We are of the opinion that, in the disposition •of the residue of her property, the testatrix was ■dealing with a class, under which the survivors take the share of the 1 who died without issue.”

In the Ives Case, we further say, page 704:

“The presumption is that a testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof, and the will should be so construed, unless the presumption 'is clearly rebutted by the provisions of the will or ;by the evidence to the contrary.”

In the instant case, the plaintiff contends for a construction of the will which would result in a part of the residue being intestate property.

In the Brown Case, supra, there was cited no provision in the will of Brown which by direct statement or necessary implication, forbade the result brought about by our decision. In the instant case, the result contended for by plaintiff is against the plain implication of the bequest limiting his share of the estate to $1,000, on which latter point, note our reasoning in the Ives Case, similar to our reasoning in this opinion.

In the instant case, the trial judge found:

“The devisees, Frank and Myrtle Plumhoff, Burton Plumhoff, Natalie Plumhoff G-rantz, Buth E. Plumhoff and Dorothy Mae Plumhoff were no doubt intended as members of the same family in the relation of parents and children to be included collectively as a class, who should receive the entire residue of the estate after payment of the specific legacy of $1,000 to the plaintiff.”

We would suppose that a bequest to the parents would inure to the benefit of the children and a bequest to the children would benefit the parents interested in their children’s welfare.

Our decision in the Brown Case, supra, clearly states that the construction should be in accordance with the actual intent of the testatrix. At page 268, in the Brown Case, we say:

“In considering the intention of the testator, we take into consideration the provisions of the will and the circumstances existing at the time the will was executed.”

From Mrs. Plumhoff’s will and the circumstances existing at' the time of its execution, it is clear that she intended that the Plumhoff family should receive ,the entire residue of the estate as a class and that her brother the plaintiff, should not receive any part of the residue after payment of the legacy of $1,000.

We affirm the decree appealed from. Costs to defendants.

Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.

The late Chief Justice North did not sit.  