In Re Norwood Estate , 178 Mich. App. 345 ( 1989 )

178 Mich. App. 345 (1989) 443 N.W.2d 798

In re NORWOOD ESTATE

Docket No. 106835.

Michigan Court of Appeals.

Decided April 19, 1989.

David H. Tripp, for petitioners.

UAW-GM Legal Services Plan (by William D. Evenson), for respondent.

Before: HOOD, P.J., and WAHLS and NEFF, JJ.

PER CURIAM.

Petitioners, the children of the deceased, appeal as of right from the findings of the Barry County Probate Court. The children filed petitions with the probate court alleging that the deceased's will was ambiguous and asking for a determination of pretermitted heirs. Both petitions were denied. We affirm.

This case arises from the probate of Robert F. Norwood's will. Norwood was survived by his wife and four children of a prior marriage. Norwood's will purported to leave his real and personal property to his wife and a specific bequest of $6,000 to each of his four children to be paid out of the proceeds of a life insurance policy. The named beneficiary of the policy, however, was the deceased's wife. Therefore, the proceeds never came within the control of the estate and the children did not receive the bequest specified.

Initially, we address respondent's argument concerning the timeliness of petitioners' motion for new trial. Under MCR 2.611(B), the motion for new trial must be filed and served within twenty-one days after entry of judgment. The motion was filed on September 29, 1987 — the twenty-first day — but it was not served until October 1. We therefore agree that the trial court was correct in dismissing the motion because it was not timely filed and served as required. We note, however, that the time limit for an appeal of right to this Court only requires that the motion for a new trial be filed within the initial twenty-one day appeal period. MCR 7.204(A)(1)(b). Therefore, the lack of timely service does not affect this Court's jurisdiction.

Petitioners first contend that the probate court erred in finding there was no ambiguity in the will. The role of the probate court is to ascertain and give effect to the intent of the testator as derived from the language of the will. In re Burruss Estate, 152 Mich App 660, 663; 394 NW2d 466 (1986). Where there is no ambiguity, the court has merely to interpret and enforce the language employed. In re Kremlick Estate, 417 Mich 237, 241; 331 NW2d 228 (1983). Findings of the probate court sitting without a jury will be reversed only when clearly erroneous. Burruss, supra, pp 663-664.

The deceased's will consisted of four numbered paragraphs. Petitioners claim a patent ambiguity in the second paragraph and a latent ambiguity in the third paragraph.

A patent ambiguity exists if an uncertainty as to meaning appears on the face of the will and arises from the use of defective, obscure or insensible language. Burruss, supra, p 666. A latent ambiguity exists where the language and its meaning is clear but where some extrinsic fact creates the possibility of more than one meaning. Id. An example would be where there is a clearly stated bequest to a beneficiary but extrinsic facts indicate that two individuals answer to the beneficiary's name. See Kremlick, supra.

The testamentary paragraphs in question read:

SECOND

I give, devise and bequeath all of my real estate, wheresoever situate, which I may own or of which I may have the power to dispose of at the time of my death; household goods; furnishings; personal effects; the 1985 Cadillac; 1974 Roadster; and the totality of my life insurance through my employer, excepting that amount which is set forth in the next paragraph, which shall be bequested in favor of my natural children, to my wife, ALINE NORWOOD, as her sole Estate.

THIRD

I give, devise and bequeath, from my life insurance through my employer, to each of my natural children, ROBERT NORWOOD, RICKY NORWOOD, CINDI HATHAWAY and JILL GRUDZINSKI, the sum of Six Thousand ($6,000.00) Dollars per child. The balance of said life insurance through my employer, in the approximate sum of Eleven Thousand ($11,000.00) Dollars, I give, devise and bequeath unto my wife, ALINE NORWOOD.

We find no patent ambiguity in the above language. The second and third paragraphs when read together make it clear that the deceased intended to leave his real and personal estate to his wife and leave each of his children $6,000 to be funded specifically from a life insurance policy.

As evidence of latent ambiguity, petitioners argue that, since the testator failed to change the beneficiary of the policy to the estate, the third paragraph makes no sense since the assets described never became part of the estate. What petitioners describe here, however, is not some extrinsic uncertainty, see Kremlick, but the testator's failure to act to bring the asset within the control of the will.

The will clearly treats the insurance proceeds separately from the rest of the estate. It does not provide that the money is to be paid even if the insurance proceeds were not available. Where a specific bequest cannot be paid because, as here, the designated source fails, that bequest fails and will not be paid out of general assets. See Morrow v Detroit Trust Co, 330 Mich 635, 644-645; 48 NW2d 136 (1951). This Court will not create a clause to compensate for the testator's oversight. Nor will we create an alternate bequest to be paid out of the general assets where the testator clearly failed to indicate that intent. See In re Allen Estate, 150 Mich App 413, 418; 388 NW2d 705 (1986).

The intent of the testator is clear on the face of the will. We agree with the trial court that no ambiguity exists.

Nor does the fact that petitioners did not receive anything under the will mean they were disinherited and should take as pretermitted heirs. The pretermitted heir statute would come into effect if the testator failed to provide for his children in the will. MCL 700.127; MSA 27.5127. The statute typically is applied in situations where an heir is omitted from the will. In re Potts' Estate, 304 Mich 47; 7 NW2d 217 (1942). In this case, the testator did not omit his children from the will nor did he fail to make provision for them. Unfortunately; he did fail to take the appropriate steps to bring the designated funds into his estate. However, the failure to fund the bequest does not make this a case of pretermitted heirs.

The findings of the trial court that there was no ambiguity in the will and that the pretermitted heir statute is not applicable are not clearly erroneous.

Affirmed.