Opinion
Docket No. 67640.
Decided March 26, 1984.
Garrett J. Troff Associates, P.C. (by Gerald H. Moffat), for petitioner.
Lilly, Domeny Durant, P.C. (by Terrence J. Lilly and Randall L. Brown), for respondents.
The probate court granted petitioner's motion for summary judgment, ruling that under the terms of Beth Marie Elwen's will the respondents were not entitled to a life estate in certain property of the deceased.
The deceased died on January 11, 1982, survived by her son Joseph Lee Elwen and her daughter Carol Dieterman. The fourth paragraph of the deceased's will read as follows:
"FOURTH: If at my death, I am the owner of my home at 3011 Nellbert Street, Kalamazoo, Michigan, or any other home, I give said property to my son, JOSEPH LEE ELWEN and my daughter, CAROL DIETERMAN, share and share alike. In the event only one person survives me, I give said property to the survivor subject however to the right of FLOYD EDWARD SWADLING and EMMA LOUIS [sic] SWADLING or in the event only one survives, to live at said property until their death with a life estate in said property except that in the event FLOYD EDWARD SWADLING and/or EMMA LOIS SWADLING move away from the premises or cease to live at the premises for any reason, then their right to live at the premises shall terminate."
The probate court granted petitioner's motion for summary judgment, ruling that respondents were not entitled to a jury trial in a will construction action because such an action is traditionally an equitable matter. The court found that a life estate would have been created in favor of the Swadlings only if one of decedent's children failed to survive her. That contingency did not occur, since both of the children were living at the time of decedent's death. Accordingly, the court found no basis upon which it could construe the plain language of the will as creating a life estate in favor of the Swadlings. Because the court found the will unambiguous, it ruled that parol testimony was inadmissible to show the testatrix's intention in making the will.
On appeal the respondents claim that the court should have allowed parol evidence to determine the intention of the testatrix.
Where there is no ambiguity in a will, the testator's intention is to be gleaned from the four corners of the document. However, the presence of an ambiguity requires the court to look outside the four corners of the will in order to carry out the testator's intent. In re Butterfield Estate, 405 Mich. 702; 275 N.W.2d 262 (1979). An ambiguity may be patent, that is, it appears on the face of the instrument, or latent, which arises where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates the possibility of more than one meaning. In re Butterfield Estate, supra; In re Kremlick Estate, 417 Mich. 237; 331 N.W.2d 228 (1983). In Kremlick, the Michigan Supreme Court held that extrinsic evidence is admissible: (1) to prove the existence of ambiguity; (2) to indicate the actual intent of the parties; and (3) to indicate the actual intent of the parties as an aid in construction. Id., 241.
In the instant case, respondents argued at the hearing on the motion for summary judgment that the terminology "share and share alike" was ambiguous. The probate court did not agree and found it unnecessary to address the issue because it found the meaning of "share and share alike" was irrelevant to the dispute at hand. The court heard no extrinsic evidence relating to the testatrix's intention with respect to the use of the terminology "share and share alike". The Kremlick decision does support the argument that the trial court judge should have admitted extrinsic evidence offered by respondents to demonstrate that a latent ambiguity existed even though on its face "share and share alike" is clear and unambiguous. Based on Kremlick, we reverse the decision of the probate court and remand the case to it.
If the probate court on remand should determine that there is an ambiguity, a jury should decide the factual issue of the testatrix's intent.