O'DONNELL v. Wendell

331 Mich. 592 (1951)

50 N.W.2d 166

O'DONNELL v. WENDELL.

Docket No. 15, Calendar No. 44,651.

Supreme Court of Michigan.

Decided December 3, 1951.

*593 William J. McBrearty and Wilbur F. Campbell (Harry Cohen, of counsel), for plaintiff.

Kopietz & Burau, for defendant.

SHARPE, J.

This is an appeal from an order of the circuit court of Wayne county, in chancery, dismissing a bill of compliant wherein it was alleged that Leo M. Wendell died intestate July 10, 1945; that at the time of his death, he was a resident of and domiciled in Wayne county; that deceased and his widow jointly owned real estate at Grosse Pointe Park, a summer cottage in Canada and a winter home in Florida; that all 3 homes were adequately furnished; that defendant was appointed administratrix of her husband's estate and has refused to make an inventory of the furniture and household furnishings in the 3 houses owned with deceased; that defendant has refused to permit appraisers, duly appointed, to inventory and appraise the household furnishings in the Canadian summer home; that defendant has sold the home and furnishings in Florida and wrongfully converted the money received from such sale to her own use to defraud creditors; and that there are lawful claims against the estate of deceased in excess of $12,000. The bill of complaint asks that the household furnishings in the Canada and Florida homes at the date of the death of deceased be decreed to be assets of the estate.

Defendant filed a motion to dismiss the bill of complaint for the following reasons:

"1. The bill of complaint fails to state a cause of action.

"(a) The bill admits the properties were owned jointly by the defendant and her deceased husband.

"(b) The bill recites the statute to-wit: The absolute and selective rights in personalty, being CL *594 1948, § 702.93 (Stat Ann 1943 Rev § 27.3178 [163]), wherein the widow is allowed the household furniture of the deceased.

"2. That if a cause of action exists plaintiff has adequate remedy at law.

"3. Property subject matter of this suit is not within the jurisdiction of this court."

The trial court held that defendant as widow of Leo M. Wendell was entitled to the household furniture in all 3 homes. Plaintiff appeals and urges that the furniture and furnishings contained in the Florida and Canadian houses, or the proceeds thereof, are assets of the estate of Leo M. Wendell.

The present suit requires a construction of CL 1948, § 702.93 (Stat Ann 1943 Rev § 27.3178 [163]), which reads in part:

"1. The widow, if any, shall be allowed all her articles of apparel and ornaments, and all wearing apparel and ornaments of the deceased, and the household furniture of the deceased, and other personal property to be selected by her, not exceeding in value $200, and the allowance shall be made as well when the widow elects not to abide by the terms of the will of her husband as when he dies intestate."

The Michigan statute on widow's allowance has undergone several changes since the Revised Statutes of 1838. Since that date, whenever the legislature granted the widow household furniture there was no intent that it should be administered as an asset of the estate. See Bordwell v. Saginaw Circuit Judge, 119 Mich 421. Up to date we have had no occasion to construe the meaning of the words "the household furniture of the deceased."

In re Breen's Estate, 94 Kan 474 (146 P 1147, 4 ALR 238), it was said:

"Provisions for setting apart specific property to the widow on the death of her husband have been *595 held to be entitled to a liberal construction for her benefit, and to apply where there is a will as well as in the case of intestacy."

See, also, Phillips v. Phillips, 151 Ala 527 (44 So 391, 15 Ann Cas 157), and Estate of Bosse, 247 Wis 44 (18 NW2d 335, 158 ALR 311). Many other States have adopted a liberal policy in favor of the widow.

From an examination of the several changes since the Revised Statutes of 1838, pt 2, title 4, ch 2, § 1 and ch 3, § 4, it is apparent that our legislature has liberalized the benefits to be granted the widow.

In Estate of Bosse, supra, the Wisconsin court had under construction a statute similar to ours. In that case Mr. Bosse and wife lived in an hotel apartment partly furnished by themselves. They also had a summer home, used occasionally by Mr. Bosse. It was there held that the widow was entitled to the furniture in the summer home. The court said:

"The fact that Mrs. Bosse never resided in the summer home or cottage does not change the fact that the articles in question are articles of household furniture. * * * The statute does not make the right of the widow to the household furniture dependent on her use of the property."

We are not in accord with plaintiff's views that the statute granting the household furniture to the widow applies only to the home in Grosse Pointe. The statute makes no limitation upon the location of the household furniture. The statute clearly states, "and the household furniture of the deceased."

In our opinion the widow is entitled to all of the furniture in the 3 homes mentioned in this opinion. The order dismissing plaintiff's bill of complaint is affirmed, with costs to defendant.

REID, C.J., and BOYLES, NORTH, DETHMERS, BUTZEL, CARR, and BUSHNELL, JJ., concurred.