Exceptions:

1. The widow's dower and homestead right in the real estate, when not waived, are superior to the debts of the estate. The extent and nature of these rights are set forth on pages 32 and 33.

2. There is also a homestead right of $1,500 for the benefit of minor children, until the youngest reaches the age of 21 years, which is superior to the debts of the estate.

3. If the personal estate is that of a married man, or widower with children under ten years of age, and does not amount to more than $150 over the allowances made by law for the widow and children (see pages 26 and 34), then after payment of the expenses of administration and funeral expenses (but not including other debts) the personal estate may be assigned for the support of the widow and children, or the children under ten years of age.

Dower

The widow has, as her dower, the use for her natural life, of such part of the real estate of her deceased husband as will yield one-third of the entire income of the whole real estate (unless she has waived that right in her husband's lifetime). She may also after her husband's death waive the right in the manner set forth in the text.

Homestead

In case there are no children, the widow has during her widowhood the use of the homestead and the rents and profits therefrom, unless she owns a homestead herself.

In case there are children and any of them are under twenty-one years of age, the widow and such children have the use of the homestead until the youngest child is twentyone years old.

Posthumous Children

A posthumous child is a child born after his father's death, and takes equally with the other children.

Half Blood

Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor are excluded from the inheritance.

Advancements

Any estate, real or personal, that may have been given by the intestate in his lifetime as an advancement to any child or other lineal descendant is considered as a part of the estate of the intestate so far as regards the division and distribution thereof among his issue, and is taken by such child or other descendant towards his share of the estate of the intestate; and if the amount of the advancement shall exceed his share, he is excluded from any further portion but he is not required to refund any part of such advance

ment.

Adopted Children

There are provisions of law for the adoption of minor children so as to make them heirs of the persons by whom they are adopted, but there are many formalities to be observed before the adoption is legally completed, which formalities cannot here be detailed at length.

Recent Legislation

Prior to the session of the Legislature in 1909, the law relating to the Descent of the Real Estate and the Distribution of the Personal Estate of intestates was fairly well settled in Michigan. The statutes covering the subjects were more or less patchwork and involved, but the Supreme Court had elucidated most of the doubtful points and we were able in the previous edition of this booklet to state the rules with much certainty.

In 1909 the Legislature passed Act 286 of the Public Acts of 1909 which became a law on September 1, 1909, and is the law at this writing. This act made radical changes in certain features of the then existing law, which changes so far as they were intentional, seem to meet with general approval. But, unfortunately, this act is only an amendatory act and the effect of certain of its provisions upon the whole intricate subject was entirely lost sight of. Moreover the act is, in some features, loosely drawn, and the result is that there are some omissions and difficulties of construction which are puzzling indeed. In certain cases, the plainly proper construction leads to rather curious results, and in at least two cases any reasonable construction produces startling results. We have passed the former cases where the results are only curious, without comment. But in the two instances where apparently any reasonable construction produces startling results, we have made footnotes to the text and will comment upon the same here. We do this because there is a diversity of opinion among lawyers as to what disposition the Supreme Court will ultimately make of these difficulties, when they reach that court. We have adopted conclusions, which are the result of much consideration by counsel and which are set out in the text. But, wherever these difficulties arise, a red asterisk appears in the text with an appropriate foot-note below and a reference is made to the following short discussion, which is for the benefit of those practitioners who wish to form an independent judgment of the questions.

(1st) Prior to 1909 the first subdivision of Section 9064 of the Compiled Laws of 1897 relative to the descent of real property read as follows:

"First. In equal shares to his children, and to the issue of any deceased child, by right of representation; and if there be no child of the intestate living, at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take according to the right of representation."

This was the only provision of law regulating the descent of the real estate of a woman who died intestate leaving lineal descendants. It was applicable to a woman who left lineal descendants, despite the fact that the pronouns were masculine, because of the well-known statutory rule of construction which changed "his" to "her" in the whole subdivision (Sec. 50, Sub. 2, Vol. 1, Compiled Laws 1897). The act of 1909 repealed this subdivision and in lieu thereof enacted the following:

"First. One-third to his widow and the remaining two-thirds to his issue, and if he leaves no widow then the whole thereof to his issue, and if all the said issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take according to the right of representation."

It results that the foregoing is the only statute in Michigan since September 1, 1909, which can by any construction provide for the disposition of the real estate of a woman who dies intestate leaving lineal descendants; and if this statute does not so provide, there is no statute law on the subject.

But how by any reasonable construction can the language of this subdivision have any application to the case of a woman at all? The introduction of the word "widow" seems to forbid. And it will be further observed by an examination of the very next subdivision of this act (we have not space to print it) that where it was intended to make provision for both men and women in one subject, apt language to that end is used, like "husband or widow," "his or her estate," etc. Moreover the author of this legislation says he never meant this subdivision to have any application to women at all.

Three possible solutions of this question have been presented to us by various competent counsel, one of which we select as the best guess as to what the Supreme Court will say on the subject.

(A) There is now no statute law in Michigan regulating the descent of the real estate of a woman who dies intestate leaving lineal descendants, and the common law on the subject prevails.

(B) By analogy and for the sake of consistency, all words denoting gender must change gender, so that "his" becomes "her" and "widow" becomes "widower." And it results that the husband takes one-third of his deceased wife's real estate by inheritance.

(C) Change "his" to "her," but do not change "widow" to "widower."

Out of the resulting jargon, by careful analysis and some elimination, there results a conclusion which may savor of judicial legislation (if adopted by the court), but which does not startle anyone and leaves the law as to women intestates unchanged.

For cogent reasons, which we cannot here set forth, we adopt the last construction as the most plausible prediction that can now be made; and the results of this construction appear in the text.

(2nd) Prior to 1909 the provision requiring the widow to elect whether to take her dower or her distributive share of the estate was inserted at the end of the second subdivision of the statute (Sec. 9064, Vol. 3, Compiled Laws 1897), and did not affect cases under the sixth subdivision, which relates to cases where the husband leaves a widow and no issue, parents, brothers, sisters, nephews or nieces.

By the act of 1909 the sixth subdivision was in substance re-enacted as the fourth subdivision, and the provision regarding the election by the widow (modified and enlarged) was placed after it as the fifth subdivision instead of before it as part of the second subdivision as in the old law; and this fifth subdivision requiring an election was made apparently to apply to the fourth subdivision by the following language: