author: McAlvay, J. Montgomery, J.

text:
    NEW YORK LIFE-INSURANCE CO. v. PRESTON.

    Appeal and Error — Determination of Cause — Divided Court —Affirmance.
    The only question in this case being one of fact whether an assignment of a life-insurance policy was an absolute sale or a mere transfer as security for advances, and the sitting justices being evenly divided, the decree of the circuit court in chancery is affirmed by operation of law.
    Appeal from Wayne; Brooke, J.
    Submitted April 11, 1905.
    (Docket No. 52.)
    Reargued November 7, 1905.
    Decided December 15, 1905.
    Bill, of interpleader by the New York Life-Insurance Company against Marvin Preston and Alanson S. Brooks, administrator of the estate of George A. Sheley, deceased, to determine the rights to the proceeds of an insurance policy on the life of said decedent. From a decree granting insufficient relief to defendant Preston, he appeals.
    Affirmed by a divided court.

      Wilkinson, Post & Oxtoby (Levi L. Barbour, of counsel), for appellant.

      Shaw, Warren, Cady & Oakes, for appellee.

       Rehearing denied January 23, 1906.

   McAlvay, J.

The complainant, by reason of a dispute as to the ownership of a certain life-insurance policy for $5,000, issued upon the life of one George A. Sheley, deceased, filed its bill of interpleader in this cause, making the claimants defendants, and paid into court the amount due under the policy. Defendant Alanson S. Brooks is the administrator of the estate of said Sheley, and claims the policy as such administrator. Defendant Marvin Preston claims as assignee of said Sheley by purchase. The decree of the circuit court awarded said Preston the sums of $822 and $111.97, together with interest thereon, and the balance of said $5,000 to said administrator. The complainant has no interest in the dispute between these defendants and the sole question at issue is whether Mr. Preston, at the time of the death of the insured, was the absolute owner of the policy, or whether he then only held the policy as collateral security for the amount paid by him to Mr. Sheley and to the company for the premium. The amount of these payments is not in dispute.

On May 21, 1894, Mr. Sheley was indebted to Mr. Preston in the sum of $7,000, for which amount he then gave his note. As collateral security to such note he gave the following:

1. A mortgage on a lot on the south side of Stimson Place, Detroit.

2. An assignment of the rents, and an annuity of $500 per annum payable from the estate of Alanson Sheley, deceased.

3. A power of attorney to Julian C. Dickinson to collect and receive the annuity and certain rents.

4. An assignment of the policy of insurance in question.

On this same date the application for this insurance was made to the complainant, and the policy issued on May 25, 1894. The note representing the indebtedness above referred to of $7,000 was not paid when due, the real-estate mortgage was foreclosed, and the property sold to Mr. Preston for $1,000, and a decree entered for a deficiency of $6,492.37. Rents under the power of attorney were collected by Mr. Dickinson, and May 4, 1903, amounted to sufficient to pay and satisfy this decree, together with the premiums which had been paid by Mr. Preston upon the policy of insurance and all interest. The said policy thereupon became the property of Mr. Sheley; the indebtedness for which it was held as collateral having been fully paid and satisfied. Previous to the final payment above referred to defendant Preston wrote a letter to Mr. Sheley as follows:

“ April 30, 1903.
“Mr. George A. Sheley:
Dear Sir: I am notified by the trustees of your father’s estate that they will upon May 7th pay me the balance due upon the decree, and that they will not pay the premium upon your life insurance which will be due May 22, and will not honor any orders made by you upon them. If you have no way to provide for this premium, I will take care of it for you, provided I can be made secure for the amount. Possibly, if you would authorize me to hold the policy and receive the benefits until I am reimbursed, it would be sufficient. Think it over and advise me.
“ Very truly,
“Marvin Preston.”

The foregoing facts are not disputed, nor the facts that afterwards, on May 22, 1903, the date when the premium on this policy was due, Mr. Sheley and Mr. Preston went to the office of the complainant company in Detroit, where another assignment of the policy was drawn, upon the request of these parties, from Mr. Sheley to Mr. Preston; that they went out of the office, and soon returned with it duly executed and acknowledged; that defendant Preston then gave his check to Sheley for $590, and another check for $232 to the company for the premium. The assignments of this policy of May 22, 1903, and of May 29, 1894, from Mr. Sheley to Mr. Preston, are absolute in form and identical in terms. What occurred between these parties from April 30th, when the above letter was written, until May 22d, when the last assignment was made, is not known. One of the parties to the transaction is dead, and the other disqualified as a witness under the statute. The dispute in this case as to whether this last assignment was an absolute transfer of this policy, or given as security to defendant Preston, must be determined from the testimony of those who were present at the office of the company when the parties were there, and from the statements, conduct, and relations of the parties. There is no question of law in the case.

W. J. Mott was cashier in the Detroit office of the company, and testified that these parties, on the day the premium was due, came into the office, . His testimony in part is as follows:

‘ ‘ Q. What, if anything, did Mr. Preston say regarding the loaning of money or the paying of this premium ?
“A. He and Mr. Sheley came in the office upon the day that the premium was due, 'and Mr. Sheley was not in position to pay the premium, and Mr. Preston wanted to find out the values in the policy.
Q. What values in the policy ?
“A. The loan values. He was evidently going to pay the premium himself. Mr. Preston asked regarding the loan values of the policy. I don’t recall that Mr. Preston inquired about the maturing value. I don’t recall that he asked anything about the dividends payable under it.
Q. The conversation then related entirely to the loan values of the policy, so far as it related to values at all ? (Objected to as leading.)
“A. He asked me all about the loan value and the conditions of the loan, and, as I remember it, there was a little memorandum pad on the desk, and he kind of figured up the loan value, and the difference there would be between the ninth year loan and the next years — the tenth year — loan; and I suppose he took into consideration the premium. The form of assignment of this policy was., filled out in the office of the company under my instructions or directions. * * * The assignment was not executed in our office. Our notary was out of the office. The notary who attached his signature to that paper was not in the employ of the New York Life-Insurance Company. He was located on the same floor of the Majestic Building, two doors, I think, from ours.”

The witness also testified he explained to both parties that the increased loan value of the policy on May 22, 1904, was $1,210. William S. Moore, State agent for the insurance company, testified that he saw Sheley and Preston in the office on May 22, 1903; that he knew them both; that he shook hands with Sheley, and—

“I said, ‘Hello, George; how do you do? Paying your premium ?’ He said, ‘Yes.’ He says, ‘ I am going to get some money on it.’ I says, ‘ Our company will lend you the money.’ He said, ‘ Preston gives me more than you — loans me more than you,’ and I said, ‘ How much do you have?’ and he said ‘$590 and Mr. Preston pays the premium.’ I went right out; never said another question.
‘ ‘ This conversation between Mr. Sheley and myself occurred in the presence of Mr. Preston. Mr. Preston was sitting there. I shook hands with him and spoke to Mr. Preston.”

On the part of defendant Preston, Samuel Lawrence testified relative to a conversation had with Sheley some time after pension day in June, 1903; that Sheley invited him to drink, or have a cigar, which witness declined.

“He said, ‘You have bought me a great many drinks.’ I said, ‘ I know that, George, when I thought you needed it and was hard up.’ ”

Witness declined another invitation to drink, and further testified that Sheley said he had all the money he needed; that he was on easy street now; that he had sold his insurance policy to Marvin Preston, and was all right; that he didn’t care who got the insurance, he was out of it. Alvin S. Clark testified that he had a conversation with Sheley in the summer of 1903, when he paid witness $10 he had loaned him. When asked where he got so much money, Sheley said:

“ ‘ I have just sold my insurance policy. I didn’t want it. I have got nobody to leave it to.’ He simply told me he had sold it and got his money for it. He didn’t explain the transaction at all.”

E. F. Metzger, a furniture dealer, had a conversation with Sheley relative to fitting up some rooms, in which he said he would pay him what he owed him the next day or the day following. Sheley came back the next day and handed him the money, and was asked by the witness where he got the money.

“ He says, ‘ I have just sold my life-insurance policy to Marvin Preston.’ Says I, ‘Canyou afford to sell your life insurance ? ’ Says he, ‘ Yes, I don’t want it. By the time I get old enough,’ says he, ‘ the policy is paid up, I wouldn’t have any more than I have now, and I haven’t any money to keep it up.’ ”

This is all the oral evidence on both sides relating to this transaction. The testimony of defendant Preston cannot be considered, nor can the entries he made in his books be received as evidence of this agreement. The fact that the assignment was absolute in form, although prima facie a sale, is not conclusive as to whether it was a sale or given to secure advances made. This court must determine this question of fact upon the preponderance of evidence. It is true that the initiative of this last transaction came from Preston. The letter in which his offer of assistance was made suggested only an advance of the premium in these words: “If you have no way to provide for this premium, I will take care of it for you, provided I can be made secure for the amount. ” He was also willing to hold the policy as security. The transaction which actually took place was entirely different from this proposition. Instead of $232 then coming due, $822 was the amount paid. The theory that it was a loan to Sheley upon the policy, to be held as security under the assignment, must be predicated upon this letter and the conversation in regard to loan values had at the time the assignment was made.

The record discloses that at the time this assignment was made, May 22, 1903, the policy had no cash surrender value. It had a loan value of $590, less interest deducted in advance for one year at 5 per cent., provided premium, $232, then due for the ensuing year, was paid. On May 22, 1904, the loan value increased to $1,210, subject to the same conditions. The large increase in loan value this year to the advantage of -Preston as security for a loan, as bearing upon the security theory, is more apparent than real. Preston paid $822, upon a loan value of $590, May 22, 1903. With interest for one year at 5 per cent., $41.10, this would amount to $863.10. On May 22, 1904, another annual premium of $232 would be due and must be paid before the increased loan value of $1,210, less interest for one year, $60.50, making $1,149.50, could be made available. To do this Preston would then have paid $1,095.10, leaving a margin of $54.40. The loan value was increased only at the end of the fifth and ninth years, and $1,210 was the máximum loan value ever attained by the policy. The policy, stripped of speculative promises, based upon deferred dividends, provides for but one cash guaranteed payment upon surrender of the policy of $1,835 at the end of the fifteenth year, when what is called the “accumulation period” of the policy ends. At this date Preston’s payments, exclusive of all interest, had the policy been kept alive by him, would be $1,982.

The proof that this is not an absolute sale in fact, as it is in form, is not clear, satisfactory, or conclusive. Where it is sought to show by parol evidence that a written instrument is other than it purports to be upon its face, it seems to be well settled that the evidence must more than .fairly preponderate. McAnnulty v. Seick, 59 Iowa, 590; Voorhies v. Hennessy, 7 Wash. 243; Cadman v. Peter, 118 U. S. 73; Beebe v. Loan Co., 117 Wis. 333; Whittemore v. Fisher, 132 Ill. 259, 260.

The proof in the case at bar does not, in our opinion, •even fairly preponderate in favor of the security theory. The testimony of three reputable witnesses with whom Mr. Sheley talked and did business at or about the time this transaction occurred, and to whom he detailed with considerable minuteness why he had made the sale of his insurance policy,' taken in connection with Mr. Sheley’s financial condition and the fact that from all the evidence in the case it appears that the price paid was a fair one, and all that the policy was reasonably worth, satisfies us that the assignment was not made for the purposes of securing a loan and premiums to' be paid, but was an absolute transfer and sale of the policy to Mr. Preston. The weight of authority holds that an insurance policy, payable to the administrator and assigns of the insured, may be absolutely assigned by the insured to a person having no insurable interest, in the absence of fraud and .for a sufficient consideration. Mechanicks Nat. Bank v. Comins, 72 N. H. 12, and cases cited; Prudential Ins. Co. v. Liersch, 122 Mich. 436, and cases cited.

Mr. Preston by the assignment became the owner of the policy, and is entitled to its entire proceeds. The decree of the court below should be reversed, and a decree entered in favor of defendant Preston, with costs of this court against defendant Brooks.

Ostrander and Hooker, JJ., concurred with Mc-Alvay, J.

Montgomery, J.

I cannot assent to the views expressed in the opinion of Mr. Justice - McAlvay. The decision of Judge Brooke, who saw the witnesses, expresses his conclusions, with which I agree, so clearly that .1 adopt it:

“On May 33, 1894, George A. Sheley, being indebted to Marvin Preston in the sum of $7,000 or thereabouts, made application to the New York Life-Insurance Company for a policy of life insurance in the sum of $5,000, and on the same day he executed a power of attorney to Julian G. Dickinson, of this city, by the terms of which said attorney was authorized to assign said policy of life insurance, when issued, to Marvin Preston. The policy was issued on the 35th day of May, 1894, and was immediately thereafter by said attorney assigned to Marvin Preston. Subsequent to said transaction Marvin Preston filed a bill in chancery and obtained a decree, by the terms of which certain moneys due and payable to George A. Sheley, under the terms of his father’s will, were thereafter to be paid to Marvin Preston in extinguishment of the debt due from George A. Sheley to Preston. Those payments were from time to time made until on or about May 6, 1903, when the last payment was made by said trustees, and the debt secured by the decree was extinguished. On April 30th of that year, 1903, Marvin Preston wrote a letter to George A. Sheley, as follows:
“ ‘Mr. George A. Sheley:
“ ‘ Dear Sir: I am notified by the trustees of your father’s estate that they will upon May 7th pay me the balance due upon the decree, and that they will not pay the premium upon your life insurance, which will be due May 33d, and that they will not honor any orders made by you upon them. If you have no way to provide for this premium, I will take care of it for you, provided that I can be made secure for the amount. Possibly if you would authorize me t.o hold the policy and receive the benefits until I am reimbursed it would be sufficient. Think it over and advise me.
“ ‘ Very truly,
“ ‘ Marvin Preston.’
“ By the terms of this letter it will be observed that no mention is made of any existing indebtedness from Sheley to Preston, except such as was secured by the decree, and which the letter informs Sheley will be paid a few days later. It will likewise be seen that Preston had in mind the fact that the insurance premium upon this policy would become payable upon the 33d of May, and, being acquainted with Sheley’s financial condition, it is apparent that Preston was of the opinion that Sheley would not be in a position to take care of the premium, which by the terms of the letter he averred that he was willing to advanee upon receiving proper security for such advancement; it being a suggestion that the policy be turned over .to him to be held until he was reimbursed forthe advancement. It will therefore be noted that at the inception of this matter this particular policy had been held by Preston as security for several years for a debt under an assignment absolute upon its face. It will further be noted that a,t the time the second assignment was made that debt was wholly canceled, and that it was the intention of Preston, when he wrote the letter of April 30th, to simply advance the premium upon the policy and hold the same as security for its repayment to him. Exactly what occurred between Preston and Sheley with reference to the transaction on May 22, 1903, is not apparent. Sheley is dead, and as a consequence of his death the lips of Preston as to the transaction are sealed. What actually occurred and about which there is no dispute is that upon that day the two went in company to the local office of the New York Life-Insurance Company; that some inquiries were made by Preston as to the loan value upon the policy on that date; that an absolute assignment of said policy was made out upon that day, and executed by Sheley to Preston, and delivered to him, together with the policy, and that Preston paid to Sheley upon that day the sum of $590, and likewise paid to the New York Life-Insurance Company the premium falling due upon that day, amounting to $232. Counsel for the estate of George A. Sheley introduced the testimony of Col. Moore to the effect that George A. Sheley, upon the day and at the time in question, said that Marvin Preston was making him a loan upon his policy, and the further testimony of Mr. Mott, the cashier of the New York Life-Insurance Company, that Mr. Preston inquired as to the loan value of the policy and was advised that the loan value post premium on May 22, 1903, was $590, and post premium on May 22, 1904, it was $1,210; that Preston did some calculating upon a sheet of paper in the presence of Mott;’ and that after-wards either Preston or Sheley instructed Mott to prepare the assignment, absolute on its face, which is in question in this suit.
“Counsel for defendant Preston introduced the testimony of three witnesses, Clark, Metzger, and Lawrence, to the effect that shortly after the transaction they severally had conversation with the deceased, George A. Sheley, in which, they having inquired how he became possessed of the money which he had, which he was apparently spending rather freely, he averred that he had sold his policy of life insurance to Marvin Preston.
“ Under all this testimony it is claimed by the defendant Brooks, administrator of the estate of George A. Sheley, that this assignment, although absolute upon its face, was in fact made but as security for the loan by Marvin Preston of $822, and that a decree should therefore be entered to the effect that said Preston should be reinbursed, from the fund paid into court by the complainant company, that amount, together with the interest thereon from the 22d day of May, 1903, to the date of payment, and that the balance of said fund, less one hundred and odd dollars paid by Preston upon an order of Sheley, which the trustees of the estate of Alanson Sheley refused to accept, and interest thereon, should be decreed to belong to the estate of the deceased George A. Sheley.
“ While it is true that, the lips of the contracting parties themselves being sealed, one by death and the other by the statute, it is difficult to determine what the contract between them was, I have reached the conclusion upon entirely equitable grounds that this assignment, though absolute upon its face, should be treated merely as security for the amount advanced. I am impelled to this conclusion in part by the fact that the original assignment, although absolute upon its face, was unquestionably held by Preston merely as security for the amount from time to time due him from the deceased, and further, by the terms of his own letter, which is the inception of the contract that was finally made between him and the deceased, in which he obviously intended to make the advance of the premiums solely as a loan, and take the policy and an assignment of it solely as a security for said advance. I am not unmindful of the fact that the cash value of the policy at the time the deal was made was not largely in excess of the sum of $822, that being the amount paid by Preston at the time; but I cannot fail likewise to perceive that the loan value of the same on May 22, 1904, would have been $1,210, and that from said amount Preston was or would have been in a position upon that day to have repaid himself the $590 paid Sheley, and the two premiums of $232 each, due in 1903 and 1904, together with interest on all those sums.- It will be seen, therefore, that Mr. Preston took no risk in making the advance in question.
• “I have given due consideration likewise to the testimony of the three witnesses introduced by the defendant Preston, touching the admissions against interest, made by George A. Sheley in his lifetime, to the effect that he had made an absolute sale of this policy to Mr. Preston. I have no doubt whatever that the witnesses in question testified truthfully and to the best of their recollection to the impression they received from Sheley in the various conversations testified to. But it will be noted that those conversations were held casually only, and under circumstances when it may well be supposed that the deceased 'was not paying particular attention to the exact legal effect of the statements which he might be making. On the contrary, the testimony of Col. Moore about the conversation had with Sheley upon the day the transaction was completed impresses me with its sincerity and, upon all grounds, with its probability. That conversation was held with reference to the particular matter in hand, the getting of this money on this policy, and it is quite obvious that, unless Col. Moore is absolutely mistaken as to what occurred, Sheley told him on that day that he was borrowing this money from the defendant Preston.
“The weight of authority seems to be that an insurance policy payable to the administrators and assigns of the insured may be by the insured absolutely assigned to a person having no insurable interest in the life of the insured, in the absence of fraud and for a sufficient consideration. Having reached the conclusion, however, that the transaction between these parties was one of a loan and the taking of security therefor, instead of an absolute sale, it becomes unnecessary to determinó .the question here.”

This court has so uniformly recognized the superior position occupied by the circuit judge in determining questions of fact that it has come to be a recognized rule that weight will be given to his conclusions whenever the case is left doubtful by the testimony. This rule has the greater weight when the trial judge has shown by an opinion so cogent and logical that no consideration which is entitled to weight escaped his attention. In this case the facts which sustain the conclusion of the learned circuit judge are so convincing that resort to this presumption is scarcely necessary. The facts that money had been previously advanced on a similar assignment, that the first proposition in connection with this transaction came from Preston who suggested a loan and not a purchase, that when at the insurance office the parties investigated the loan values of the policy rather than the surrender value, and that the statement to Col. Moore was that a loan was to be made, are most convincing as to the character of the transaction. As against this testimony there appears the alleged admissions of George Sheley, made in casual conversation. The courts have long recognized that this is the weakest kind of testimony. The conversation in which the witness has no direct interest, and the statement upon which nothing depends ex-cept the satisfaction of an idle curiosity, are so likely to be misunderstood or misinterpreted that it is going a long way to overturn a deliberate and well-considered decision of the chancellor, who saw the appearance of the witnesses, for the reason that testimony as to such alleged admissions was not accepted by him as a whole. It is evident that to none of those witnesses were the terms of the assignment made by Sheley regarded as important. The question of his profligacy, as it presented itself to them, did not depend upon whether there was an absolute sale or an assignment of the policy by way of pledge. Knowing Sheley’s habits and want of thrift, it is quite clear that each of these witnesses would have been startled to learn that he had raised money on this policy. The important fact to them was that he had parted with his policy. When they came to report the conversation later, they state that Sheley said he had sold his policy. This impression ought not to outweigh the statement made at the time to Col. Moore, a statement entirely consistent with all the circumstances of the case. The decree is affirmed.

Moore, 0. J., and Blair, J., concurred with Montgomery, J.

Carpenter and Grant, JJ., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    MARVIN v. BOWLBY.

    1. Descent and Distribution — Real Estate — Rights op Heirs.
    Real estate of an intestate decedent descends directly to the heirs, subject, however, to the'payment of intestate’s debts and expenses of administration.
    2. Executors and Administrators — Payment op Debts — Property — Order op Subjection.
    An intestate’s personal estate must first be exhausted in the payment of debts, after which so much of his real estate as is necessary may be applied to that purpose.
    3. Same — Distribution op Estate — Liability op Heir to Estate.
    An heir’s distributive share of the personal estate may be applied by the administrator in payment of a debt due the es- • tate by such heir.
    4. Same.
    Where an heir is indebted to the estate of his intestate ancestor, neither the heir’s distributive share of the real estate of such ancestor nor the proceeds of a sale thereof in the hands of an administator is chargeable with such indebtedness, which must be collected in the same manner as other debts due the estate.
    Appeal from Shiawassee; Smith, J.
    Submitted May 2, 1905.
    (Docket No. 132.)
    Decided December 15, 1905.
    Bill by Thomas Marvin, administrator of the estate of Jacob Bowlby, deceased, against Elmer E. Bowlby, Carrie Bowlby, and Almond G. Shepard to set aside certain mortgages. From an order overruling demurrers to the bill, defendants appeal.
    Reversed, and bill dismissed.

      Fred B. Everett (Booling & Kelley, of counsel), for complainant.

      Lyon & Moinet, for defendants Bowlby.

      Almond Q. Shepard, in pro. per.

       Rehearing denied January 24, 1906.

   McAlvay, J.

Complainant, as administrator of the estate of Jacob Bowlby, deceased, filed his bill of complaint against defendants, setting forth that said decedent died in Clinton county, this State, seised and possessed of real estate located in Shiawassee county, and also personal estate of the value of $1,900; that he was indebted in a large amount to creditors, and also as indorser or guarantor upon obligations due and owing by Elmer Bowlby to various creditors; that he, in the exercise of his duties as such administrator, after the allowance of claims, proceeded to pay said creditors, selling the personal property, paying all but a certain mortgage of the State Savings Bank of Ovid, leaving in his hands, after paying his fees and expenses, the sum of $57.05; that all of the heirs by agreement joined in a deed to one Theodore May of the land covered by the said mortgage to the savings bank, subject to said mortgage; that all the other lands of said estate have remained in his possession as said administrator; that defendant Elmer Bowlby was indebted to the said estate for which complainant brought suit and recovered judgment in Shiawassee circuit court, and recovered judgment from said defendant for $3,362.62, and costs taxed at $57.70, which judgment was afterwards affirmed by this court (Marvin v. Bowlby, 135 Mich. 640), with costs taxed at $61, which judgment, with costs and interest, is still owing to said estate by said defendant Bowlby; that said defendant, as an heir at law of said deceased Jacob Bowlby, is entitled to a distributive share of the estate; that said defendant and his wife have given a mortgage to defendant Almond G. Shepard for $600 upon their interest in part of the real estate of said decedent to secure attorney’s fees and expenses of litigation, with full knowledge of the fact of defendant Bowlby’s indebtedness to said estate, and was given and received for the purpose of hindering and delaying said complainant in collecting said indebtedness, and that, with the same intent and for the same purpose, said Bowlby and wife gave another mortgage for $1,100 to William T. Reed, trustee, upon their interest in certain other lands of said estate; that there are no funds to pay the expenses complainant incurred in' such litigation, and that, the personal estate being exhausted, to pay debts it will be necessary to sell the real estate, and said mortgages are a cloud upon the title thereto; that defendant Bowlby is insolvent and has no property to satisfy the said judgments; and that it will be necessary to apply his distributive share in said real estate upon the same. The complainant prays that the aforesaid mortgages be set aside as clouds upon his title and as hindering and delaying the sale of said lands; that the distributive share of said defendant Bowlby in said lands be applied on said judgments, and, if necessary to ascertain the value of such share, said lands may be sold.

Defendant Bowlby and wife demurred to said bill, as did also defendant Shepard, alleging as grounds of demurrer that, as a judgment creditor’s bill or as a bill in aid of execution, it does not comply with the necessary requirements of law and practice; that it appears that a probate court and not a court of chancery has jurisdiction; that no case is made by the bill entitling the complainant to relief in equity. From an order overruling these demurrers, these defendants have appealed.

The bill of complaint does not on its face purport to be either a judgment creditor’s bill or in aid of execution. The prayer of the bill based upon its allegations is that certain mortgages be set aside as a cloud upon complainant’s title; and that the share of defendant Bowlby, as heir in the real estate of complainant’s decedent, be applied upon the judgment in favor of the estate against him, and if necessary, the real estate be sold for that purpose, the share not being otherwise ascertainable.

All the questions raised upon these demurrers depend upon the main proposition — whether a court of chancery will assume jurisdiction to authorize the application of a judgment obtained by an administrator in favor of an estate against an insolvent heir at law, against the distributive share of such heir in real estate, and order sale of the real estate for that purpose. This contention is not without force; especially as it is based upon the claim that it is the only way, under circumstances similar to 'these in this case, that all the heirs of an estate may share equally in the estate of their intestate ancestor. It is also supported by some authority. It is well settled that real estate of the intestate decedent descends directly to the heirs, subject, however, to the payment of debts and expenses of administration. The heir does not take an absolute title to such share of the real estate for the reason that all of the estate is subject to the debts of the decedent. The personal estate must first be exhausted, and then so much of the real estate as may be necessary to satisfy such debts, and the title of the lands which descended to the heir may be completely divested. A mortgagee or grantee of an heir of his interest in such real estate will acquire no greater rights than those possessed by the heir.

It is a recognized doctrine that the distributive share due an heir from personal estate may be applied by the administrator in payment of a debt due the estate by the heir. The case of Fiscus v. Moore, 121 Ind. 547 (7 L. R. A. 235), is cited in support of complainant’s contention in this case, that the same rule extends to the real estate of an heir. In that case all the real estate had been regularly sold by the administrator to pay debts owing by the intestate, and a surplus over remained in his .hands for distribution. One of the heirs was indebted to the estate for much more than his distributive share. Moore, the mortgagee of this heir’s interest in the real estate, secured an order requiring the administrator to pay him the amount of the mortgage debt out of this heir’s share of such proceeds. The majority of the court held that, when land was converted into money, it became, by operation of law, money assets, subject to all the. incidents of other assets, regardless of the source from which they arise; that the claim of the mortgagee was not a claim to an interest in the assets of the estate; that the mortgagee had no greater rights than the heir, and that the administrator had the right to apply this heir’s interest in this fund upon his indebtedness to the estate; that to hold otherwise would deprive the other heirs of their right to an equal participation in the estate.

Koons v. Mellett, 121 Ind. 585 (7 L. R. A. 231), was a case where the funds arising from the sale of real estate according to the terms of a will were in the hands of the administrator, and the same court by a majority opinion held as in the case of Fiscus v. Moore, supra. It will be noted that these cases were not in' accord with the previous decisions of that court. See Milligan v. Poole, 35 Ind. 64; Spray v. Rodman, 43 Ind. 225; Wilson’s Ex’r v. Rudd, 19 Ind. 101; Simonds v. Harris, 92 Ind. 505; Ballenger v. Drook, 101 Ind. 172.

In the majority opinion in the first case above cited the court distinguished between cases where the proceeding was to compel the payment of a distributive share from the cash proceeds of the real estate in the hands of an administrator, where the heir is indebted to the estate, and an attempt by a direct proceeding to charge a lien upon the real estate which had descended to the heir. Fiscus v. Moore, 121 Ind. 551 (7 L. R. A. 235).

The case of New v. New, 127 Ind. 576, followed the two cases above discussed and is claimed as an authority supporting the contention of complainant in the case at bar. An extract from the opinion will show what was decided. We quote from page 586 et seq.:

“ In the case of Fiscus v. Moore it was held by a majority of this court, and is now the settled law of the State, that a debt due an estate of an intestate from an heir may be .retained out of his distributive share of the surplus proceeds of real estate which has been regularly sold in order to make assets to pay debts, as against one who took a mortgage pending the settlement of the estate, with knowledge of the indebtedness. If an 'administrator has the right to apply money due the heir for his share of the real estate, which accidentally comes into his hands by reason of the indivisibility of real estate, so that only a sufficient amount can be sold to pay the debts of the estate,, by reason of which indivisibility the administrator is compelled to sell all the land, thereby reserving a surplus from the sale of the real estate for the payment of a debt due the estate, then the administrator certainly has the right in equity, in case no sale is made of the real estate by which a surplus comes into his hands, to have the interest of the heir applied to the payment of the debt due the estate. In that case it is said:
“ ‘The right of heirs to participate equally in the estate of their ancestor is superior to that of a lien holder with notice.’
“This recognizes the doctrine that there exists a right to have an equal distribution of the estate between heirs, devisees, and legatees, and for that purpose there exist, in equity, a lien and right to have such a portion of an estate, whether real or personal, as goes to the heirs applied to the payment of a debt due from the heir to the estate. In the case at bar and in like cases, the estate vested subject to the rights of the widow, and the testator contemplated an equal distribution of such portion of his estate as remained at the death of the widow between the legatees share and share alike.
“In this case the widow had full power to use such portion of the estate as necessary to supply her wants during her life, and at her death provision was made for an equal distribution of the estate remaining between the three children; before her death one obtains a portion of the funds constituting a part of the estate and executes his note for the same, which becomes a part of the assets of the estate. The portion of the real estate which George W. took by the will was subject to the payment of the judgment taken for the portion of the personal estate which he had obtained, and the executor had the right to have it subjected to sale to pay the debt, or, in the partition of the real estate, the other devisees had the right to have it treated as an advancement, so that the debtor had no interest in the real estate except the amount remaining in excess of the amount of the judgment. The executor having the right to subject the land to the payment of the judgment, the assignee also had the same rights.”

The assignee in this instance was one of the heirs who, by order of the proper court, took this judgment as part of his distributive share of the estate. Although the doctrine contended for is laid down in the opinion above quoted without qualification as a logical sequence to the decision in the case of Fiscus v. Moore, yet the decision' seems to be based upon the right of the executor to subject the land to the payment of the judgment and also the right of the other heirs in a partition of the real estate to have this debt treated as an advancement. In Indiana by statute a judgment duly entered becomes a lien upon the real estate of the debtor.

In Streety & Co. v. McCurdy, 104 Ala. 493, it is held that the heirs of an estate have an equitable lien upon the distributive share in real estate of an heir who is indebted to an estate, and this lien is superior in equity to all liens of grantees or creditors of said heir, and may be enforced in equity by the other heirs, or the administrator. That court says: “This view is apparently at war with the current authority in the other States.”

In Oxsheer v. Nave, 90 Tex. 568, the court recognizes also the conflict among authorities upon the proposition. This case was for the partition of community property owned by plaintiff and his deceased wife, against his children, and asking to offset the indebtedness of a son to said community estate against his interest therein. It was held that the distributive share of an insolvent debtor heir in the real estate could be applied upon his indebtedness to the estate. The court said:

“Under our statutes, the real and personal estate of an intestate descend alike to the heirs, charged with the payment of debts and subject to administration for that purpose. Both the real and personal property, when administered, are subject to distribution among the heirs in one proceeding. The debt of one of the heirs to the estate is a part of the general mass of property subject to distribution, and, if such heir fail to pay it, if more than his share, so much of it as amounts to the value of his share should be set apart to him; if less than his share, it should be taken by him in satisfaction of that share as far as it will go. This principle was applied in Re Akerman [L. R. 48 Ch. Div. 212].”

In this case the court, in answer to the argument that the rule would not apply to real estate of a debtor heir which had not been converted into money, said:

‘ ‘ W e apprehend that this makes no difference in principle, for the reason that the equity of requiring the debtor distributee is the same whether the mass to be distributed consists of property or money; and it is within the power of the courts of equity to enforce the equity as well in one case as in the other. * * * Under our statutes in relation to the estates of deceased persons, a conversion- of the property, both real and personal, may become necessary upon either of two contingencies: (1) For the payment of debts; and (3) in order to bring about equality in the final distribution. In principle we see no sound distinction between the two cases.”

Donaldson’s Estate, 158 Pa. 292, was an appeal from a decree dismissing exceptions to an auditor’s report in partition of an estate. The court held that the equity of payment of an heir’s debt to an estate runs with the land, and the amount of the heir’s indebtedness may be charged upon his share as against an execution creditor with notice that the same would be charged against said share as for an advancement. In Gosnell v. Flack, 76 Md. 423 (18 L. R. A. 158), where a trustee of an insolvent heir claimed the distributive share by right of his deed of trust, it was held that:

“ The right to a distributive share is subordinate from the beginning to the distributee’s indebtedness to the estate. If he is charged with the indebtedness, as he should be, he can only receive in the way of a distributive share what remains after deducting the indebtedness; in other words, his right, to claim any portion of the estate is limited to that portion, if any, which is in excess of what he owes to the estate, * * * and that the trustee was entitled to no greater rights than his grantor.”

In this case the proceeds of this estate were in the administrator’s hands for distribution.

The foregoing are the leading authorities to which our attention has been called, or which we have been able to find, supporting, or tending to support, complainant’s contention. The leading cases holding the contrary doctrine are:

La Foy v. La Foy, 43 N. J. Eq. 206, which holds that the debt of a devisee is not a charge on lands devised to him by the testator in the absence of language in the will making such debt a charge. The court says:

“The devisee of lands occupies no such relation to the executor as that which exists between legatee and executor. No act is necessary on the part of the executor to put the devisee in full enjoyment of the estate devised. The opportunity, therefore, could not arise for the executor to retain the debt of the devisee to the estate out of any demand which the devisee might seek to enforce against the executor. If such a charge attaches against the land devised, it would be necessary for the executor to establish it by proceedings in which he is the actor. After diligent search, we have been unable to find a case in which the attempt has been made to charge a devisee of lands with a debt due from the devisee to the testator in the absence of language in the testator’s will manifesting the purpose of the testator to do so. * * * In the absence of language in the testator’s will to that effect, there is no authority for charging the devisee’s debt upon land devised to him.” -

In Smith v. Kearney, 2 Barb. Ch. (N. Y.) 533, real estate had been sold to carry out the valid provisions of a will, and funds were in the hands of the executor. The creditors and assignees of an heir who was indebted to the estate, and who had acquired rights in the land before sale, claimed the distributive share of such debtor heir in such fund. After indorsing the well-settled doctrine that as to legacies the distributive share of a legatee debtor to the estate in the hands of an executor may be applied upon his indebtedness, the learned chancellor said:

“ But in relation to the proceeds of that portion of the estate which descended to J. C. as one of the heirs at law of his father, this principle of the equitable retainer does not apply. That fund was not placed in the hands of the executor by the will of the testator, as personal estate, but its conversion was merely accidental. * * * It is, in equity, therefore, still to be considered real estate and as in no way connected with the fund which came to the hand of the complainant for the purposes of the will.”

The same rule has always obtained in Massachusetts. A leading case is Dearborn v. Preston, 7 Allen (Mass.), 192, where an ancestor devised his real estate equally to his three sons. One of these sons afterwards conveyed his interest to the other two, .and one of these conveyed his interest to a third party, who thereby became owner of an undivided one-half interest in said real estate and by petition asked partition thereof. The son who held the other one-half interest claimed that his brother, when he conveyed to petitioner, did not own a one-half interest, that the interest devised to him was chargeable with an indebtedness he owed his ancestor at the time of his decease. The court says:

“The rule of law upon the subject is so well known and established that there can be no doubt of the legal right of a devisee of real estate to take and hold it absolutely, free from any lien or charge or incumbrance as security for anything which he owed to the testator and may still owe to his legal representatives. It was very early determined that; in the division among the heirs of the real estate of a person who died intestate, no deduction would be made from the share of any one of them for or on account of any debt due from him to the intestate; and that there was no lien or charge in any form subsisting upon such share as security for such debt or which could in any way be enforced towards the payment of it. Procter v. Newhall, 17 Mass. 93. The judgment of this court in the case of Hancock v. Hubbard, 19 Pick. (Mass.) 167, declared and reaffirmed the same doctrine. And these decisions have never been doubted or brought into question, but ever since they were promulgated have been uniformly received and recognized as true and undoubted expositions of the law. The rights of the devisees to real estate, or to any share or interest therein specifically devised to them, depend, and are obviously to be determined, upon the same principle. * * * The testator may prescribe at his own pleasure the terms of his gift, and if he desires and intends to do so, he may charge and incumber the estate devised with the duty and obligation of paying any debt which shall remain due from the devisee to the testator at the time of his decease. His omission to impose any such condition unequivocally evinces an intention to make .his gift absolute and unconditional. And it is a plain and unavoidable consequence of an unrestricted and absolute devise, that the estate devised comes to the devisee entirely free from any incumbrance, or liability to be in any part appropriated to the payment or discharge of any debt which was due from him to the testator.”

The doctrine that such indebtedness is no lien or charge upon the real estate of the debtor heir is applied in Tennessee ; but, in order to make it a lien, the administrator must become an actor in a proper proceeding. Mann v. Mann, 12 Heisk. (Tenn.) 245; Towles v. Towles, 1 Head (Tenn.), 601. See, also, Sartor v. Beaty, 25 S. C. 293.

It is a recognized doctrine that the distributive share derived from personal property of an heir indebted to an estate may be retained by the administrator in payment of such debt. This same doctrine has also been applied to a debtor legatee by an unbroken line of authorities from the earliest English decisions to the present time. The doctrine is founded upon principle as well as upon authority. It is, in fact, the collection of a debt due the estate. Personal estate is assets in the. hands of the administrator. He is required by law to convert personal property into money; to collect all debts due the estate from all debtors, including heirs. The heir has no title or claim to personal -estate'except a distributive share in the surplus after payment of debts and expenses of administration.

No such doctrine has prevailed as to real estate. The title to the real estate vests in the heir at the date of the death of the ancestor. Real estate is not assets in the hands of a personal representative, and, unless otherwise charged by the terms of a will, is subject only to the contingency of a sale of so much thereof as may be necessary to pay the debts of the estate in case there is not sufficient personal estate for that purpose. This statutory-contingency is a modification of the common law, and no sale of real estate .to pay debts of the estate could be made before this modification. It has been held repeatedly, not only that no sale of real estate can be made except for this purpose, but also that only so much of the ■real estate can be sold as may be necessary for that purpose, and that, where because of the indivisibility of real estate the whole must be sold, the surplus by the doctrine of equitable conversion is considered as real estate, and as such goes to the heirs. There is one recognized exception to the general rule above stated. Indebtedness of the heir to the estate which may be held as an advancement may be considered in the division of real estate' among heirs. The recent cases cited as supporting complainant’s contention are not based upon authority. The case of Oxsheer v. Nave, 90 Tex. 568, is the only one which goes to the full extent claimed by complainant, and that case is based upon the argument in the case of In re Akerman, supra, wherein the court expressly stated:

“I am not deciding a case where there is a mere gift of real estate. * * * But here I am dealing with a case such as I have mentioned, with a general fund made up of proceeds of sale of real estate, and proceeds of conversion of personal estate.”

The other cases relied upon are where surplus from the real estate has been in the hands of the personal representative for distribution, and the doctrine of equitable conversion has not been recognized, or where some statutory provision has influenced the decision. The great weight of the authorities holds the contrary doctrine. We therefore hold that the distributive share of the real estate of an heir, debtor to the estate of his ancestor, is not chargeable with such indebtedness either as against the land or the proceeds of the sale thereof in the hands of the administrator ; that such indebtedness is to be collected by proceedings brought the same as for collecting any other indebtedness due the estate.

The demurrers were well taken, and the order overruling the same is set aside, and a decree will be entered in this court sustaining the demurrers and dismissing complainant’s bill for want of equity, with costs to defendants of both courts.

Moore, C. J., and Carpenter, Blair, and Hooker, JJ., concurred.


text:
    PONTIAC, OXFORD & NORTHERN RAILROAD CO. v. OAKLAND CIRCUIT JUDGE.
    Mandamus — Propriety—Remedy by Appeal.
    Mandamus will not lie to compel the vacation of an order appointing a receiver of a railroad corporation, since there is an adequate remedy by appeal from the order. „
    Mandamus by the Pontiac, Oxford & Northern Railroad Company to compel George W. Smith, circuit judge of Oakland county, to set aside an order appointing a receiver.
    Submitted June 27, 1905.
    (Calendar No. 21,165.)
    Decided December 15, 1905.

      Russel & Campbell, for relator.

      Angelí, Boynton, McMillan & Bodman, for respondent.
   McAlvay, J.

Relator, a railroad corporation of this State, applies for a mandamus to compel the circuit judge of Oakland county to vacate an order appointing a receiver of said corporation in a certain suit pending in the circuit court of said county in chancery.

There is nothing in the case to make it an exception to the general rule repeatedly recognized by this court, “that orders appointing receivers' whereby the possession of property is divested are appealable. ” Mardian v. Wayne Circuit Judge, 118 Mich. 353, and cases cited. Relator has an adequate remedy by appeal from said order. Mandamus will not lie when there is another adequate remedy. See Mardian v. Wayne Circuit Judge, supra, and cases cited.

The writ is denied, with costs.

Moore, O. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Hooker, J. McAlvay, J.

text:
    SWEEZY v. FISHER.
    1. Husband and Wife — Torts of Wife — Liability of Husband —Evidence.
    In an action against a husband and wife for the wife’s 'tort, evidence examined, and held, insufficient to show that the husband participated in his wife’s act, and was therefore liable because of the marital relation, or because he did not prevent her by force from committing the wrong.
    2. Trial — Misconduct of Counsel.
    Where, in an action for injuries to plaintiff because of holes tortiously dug in a highway by defendant’s wife, there was no evidence that defendant participated in or knew of the tort until some two weeks after it was committed, it was improper for plaintiff’s counsel to argue to the jury that defendant might have gone up to the road in the dead of the night and dug the hole, and then had his wife go there the next day , and stay for a short period of time, etc., and charged the digging to her.
    Hooker, J., dissenting.
    Error to Wexford; Chittenden, J.
    Submitted July 21, 1905.
    (Docket No. 94.)
    Decided December 15, 1905.
    Trespass vi et armis by Napoleon B. Sweezy against Albert Eisher and Minnie Eisher.. There was judgment for plaintiff, and defendant Albert Eisher brings error.
    Reversed.

      Gaffney & Pease, for appellant.

      I. G. Wheeler, for appellee.
   Hooker, J.

The plaintiff was injured, as was his horse, also, through the stepping of the latter into a hole in a logging road over which plaintiff was traveling. It is admitted that this and other holes were made in the highway by the wife and codefendant of Albert Eisher, the appellant. The case was begun in justice’s court. Upon the trial at circuit the learned circuit judge permitted the jury to find a verdict against both defendants. Judgment followed, and Albert Fisher appealed.

The important question in the case is whether there was sufficient, if any, evidence justifying the conclusion that Albert Fisher participated in the tort alleged, and whether the court should not, as requested, have directed a verdict in his favor. The testimony of one Chris Bosack, sworn for the plaintiff, was that Mrs. Fisher told him the day before that, “ To-morrow morning I dig hole that your team will break up in” — to kill him (Bosack) and his team. Bosack and Fisher were in a quarrel' over the roads. This was all the testimony given by the plaintiff, and did not indicate that Fisher was in any way connected with the act of his wife. A motion for a nonsuit made at this juncture was denied, whereupon Fisher was sworn in his own behalf. He stated that Bosack blocked up a road over which Fisher was hauling logs, and took a job away from him, or, as he stated it, “fobbed me out of a job.” He was afterwards convicted of stealing potatoes from Bosack, and was put in prison for some offense in connection with their troubles. '

Referring to the digging of the holes, the following . is his testimony:

“Q. How did you know that those holes were dug, Mr. Fisher ?
“A. Well, I didn’t know particular.
Q. Well, did you know in the morning when your wife went out to dig those holes ?
“A. All I know is slie asked for a spade, a tool; that is all I know about it.
‘ ‘ Q. And did you get them for her ?
“ A. No, sir; I didn’t even know where they were.
Q. What did you think she was going to do with the spade and tools ?
“A. I didn’t know anything about it.
Q. What did she say she was going to do ?
A. Well, she said she was going to see if she couldn’t block that line fence, and, if she made a snowdrift, she wanted to see if she could shovel it out — get through the snowdrift.
Q. How long was she gone ?
“A. Well, I should think she was gone about 20 minutes I didn’t look at the watch.
Q. What did she say when she came back?
“ A. She didn’t say anything to me.
“ Q. Didn’t she say she was going up to dig a hole for Mr. Bosack to get into ?
“A. No; she didn’t that time.
Q. What time did she say that ?
“A. I don’t know anything about it when she said it. She said something about holes at the time they got the warrant out for her.
Q. You didn’t know anything about it till they came with the warrant ?
1‘A. Yes, sir.
“ Q. How long was that after she went up there with the tools ?
“A. It was about two weeks.
Q. And didn’t you know that Sweezy had gotten into the hole before that time ?
“A. I didn’t know anything about it. All I knew was what I heard. I didn’t know whether he went into the hole or not ?
Q. And it was about two weeks after they came with the warrant for her ?
“A. Well, I think it was about that.
Q. How do you know, then, that it was two weeks, if you do not know when it was done.
A. According to the way they said, from the 31st till the 16th or 17th, but I remember well when she asked for the spade, and it wasn’t'the 31st of December, it was the 6th day of January ?
Q. How do you know that it was the 6th day of January ?
*6 A. I know it very particularly because it was the second day after the Farmers’ Institute.
Q. Didn’t she ask for a spade .on the 31st day of December ?.
A. No, sir; not that I remember of.
Q. Then you didn’t know about anything being done on the 31st ?
“A. No, sir. The way I know particular the way it was, I went over onto the other place the first day of the Farmers’ Institute was, and I was going to cut some tracks and Mr. Bumps was going to help me, and I took the pails in my hand and was going to milk two cows then she asked me for a spade and a shovel.
“By Mr. Gaffney: You say your wife asked you for a spade one morning ?
A. Yes, sir.
Q. And she told you at that time she was going to block the road over there ?
“A. Yes, sir.
“ Q. What did you tell her ?
“A. Well, I told her she better not block the road, because, I said: ‘ It won’t do us any good so long as we don’t own the premises.’
Q. Well, what did you do then after you told her that ?
“A. Well, I went and milked the cows. I had the pail there and I milked the two cows.
“ Q. How long were you gone ?
“A. Oh, about 20 minutes because I milked those two cows and strained the milk, and when I got the milk strained she was then just in front of the gate.
Q. Did she tell you where she had been ?
A. No, sir; not in particular at that time.
Q. How long afterwards did you learn that she had been over there attempting to block the road ?
“A. Well, it was about the time they got the warrant out. Of course, I heard that she had made some disturbance there.
Q. But you did get her the spade, when she asked for it ?
A. I did not. I told her I didn’t know where it was. It must be somewhere in the barn. I said, ‘ The young ones, they know where the tools are,, and they have them and destroy them.’ That is all I know about it.
Q. Were you willing that she should* be down there and interfere with the road ?
“A. No, sir; I was not. I told her that she better come back, and not do that. That was just before she • went out of the gate.
“Mr. Gaffney: That is all.
“ By Mr. Wheeler: Did you go with her to see what she would do ?
“A. No, sir.
“ Q. You did not try to prevent her from doing anything did you ?
“A. Yes; I told her she better come back.
“ Mr. Wheeler: That is all.
“Mr. Gaffney: That is all. The defense rests.”

From the testimony the jury must have inferred his participation. While he denied knowing her intention, it appears from his own,testimony that she asked him for the spade, and he told her that it was in the barn somewhere, and that the children would know. If he did not know of her intention, why did he tell her she better not block the road, or not take enough interest to ascertain what she was going to do. His supposition that she was going to block the road by shoveling snow and making a snowdrift was not very probable. From the whole testimony, viewed in the light of the relations of the parties, we cannot say that the jury were not justified in inferring appellant’s participation in or encouragement of the act of his wife. In his closing argument counsel for the plaintiff said:

“Brother Gaffney claims that Mrs. Fisher was gone only about 30 minutes from her house at the time these holes were dug and that she did not have time to go and return and dig these holes, as described by plaintiff’s witnesses, and place other obstructions in the road. Who knows but Mr. Fisher went up there in the dead of the night and dug that hole, then had his wife go up there for 30 minutes.”

In view of the weather, and the amount of labor required, an inquiry of that kind may not have been out of place.

The judgment should be affirmed.

McAlvay, J.

From an examination of all the testimony in this case upon which appellant is held guilty of the tort committed by his wife, I cannot agree with the conclusion of Justice Hooker. There was no evidence at all given by plaintiff to connect this defendant in any manner with the transaction. Had defendant not pro-^ ceeded with his defense and been sworn as a witness in his own behalf, there is no question whatever but that the case should have been dismissed as to him upon his motion made. If the situation is at all changed, it is because of evidence he has given. All of this testimony is set forth in the opinion affirming the judgment against him, and from the record it appears that it was brought out upon his cross-examination.

A careful reading of his testimony shows that he is held guilty of the tort complained of because he knew that his vife got a spade to block the road with snow. He did not get the spade for her. He said that it was in the barn somewhere; that the children knew where; but he did not know. He told his wife she would better not block the road; also told her to come back after she had started. He said he did not know what she actually did until two weeks after. From this evidence a jury is allowed to infer that he participated in or encouraged the commission of the wrong by his wife. This evidence, in my judgment, will not warrant such an inference. There is no evidence at all that he participated in the act, and his testimony is that he told his wife not to go, and to come back. He cannot be held guilty because of the marital relation, nor because he d*id not by force prevent her goiñg. The motion to dismiss the case as to appellant at the close of the proofs for want of evidence should have been granted. The court erred in denying it.

Remarks of plaintiff’s counsel in closing the case were excepted to. These remarks were clearly prejudicial to this defendant. The jury were allowed to suppose or guess that appellant went out in the night-time and dug the hole in the road. It is not claimed that there was any evidence in the case supporting such a theory. The trial judge should have cautioned counsel and instructed the jury to pay no attention to the statement. It was error not to do so.

■ The judgment must be reversed and a new trial ordered.

Moore, C. J., and Grant, Blair, Montgomery, and-Ostrander, JJ., concurred with McAlyay, J.


author: Hooker, J.

text:
    WIETHOFF v. SHEDDEN CARTAGE CO.
    Negligence — Personal Injury — Action— Evidence — Sufficiency.
    In an action for an injury caused by plaintiff being crushed by a huge iron bed plate under which he attempted to walk while it was suspended from a pair of shears made from poles standing within a few feet of him, evidence examined, and held, that the verdict is so contrary to the weight of the evidence as to require reversal.
    Error to Wayne; Mandell, J.
    Submitted October 3, 1905.
    (Docket No. 2.)
    Decided December 15, 1905.
    Case by Anthony B. Wiethoff against the Shedden Cartage Company, Limited, and the American Radiator Company for personal injuries. There was judgment for plaintiff against the Shedden Cartage Company, and it brings error.
    Reversed.

      L. O. Stanley (Harrison Geer, of counsel), for appellant.

      Washington I. Robinson, for appellee.
   Hooker, J.

The defendant in error recovered a verdict of $13,000 for an injury suffered by being crushed by an iron bed plate 34 feet long, 3 feet wide, and 6 inches thick, which he attempted to walk under while it was suspended from a pair of shears, made from telephone or similar poles, standing within a few feet of him.

We are agreed that this verdict is so plainly contrary to the weight of evidence that we concur in the reversal of the judgment without discussion of other questions.

The judgment is reversed, and a new trial ordered.

.Moore, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


text:
    O’DEA v. MICHIGAN CENTRAL RAILROAD CO.
    1. Carriers — Injuries to Passengers — Negligence—Contributory Negligence — Question for Jury.
    A passenger on a railway train arrived at her destination before the conductor had taken her ticket, and when the station was announced she started to get off the train; but the stop was too short, and, the train being started with a jerk before she had time to alight, without the operatives ascertaining that persons were not in the act of alighting, she was thrown to the ground and injured. Held, that the facts did not show an absence of negligence on the part of the carrier or contributory negligence on the part of the passenger, as a matter of law.
    2. Damages — Personal Injuries — Evidence — Physical Condition — Pain and Suffering.
    In an action for, personal injuries, plaintiff may testify fully as to her condition, pain, and suffering, and its duration.
    S. Evidence — Hearsay—Statements to Physician.
    Complaints of present sufferings made to a physician called by plaintiff in a personal injury case, not for treatment, but to make testimony, are not natural expressions, but voluntary statements for an ulterior purpose, and are not admissible.
    4. Same — Complaints of Pain.
    In an action for personal injuries, witnesses, who, during the period succeeding the injury, heard plaintiff complain of pain and suffering, may testify to the fact that she complained, and of what she complained, as distinguished from her language used in making such complaints.
    5. Damages — Personal Injuries — Evidence.
    In an action for injuries, evidence as to what plaintiff’s weight had been before the accident is admissible.
    6. Evidence — Competency—Results of Experiments.
    In an action for injuries to a passenger by the sudden starting of the train before she had time to alight, it is not error to exclude evidence of a subsequent test to determine the length of time that the engineer probably took-to oil his engine at the point in question on the occasion of the accident.
    7. Trial — Instructions—Harmless Error.
    Error in stating that certain of defendant’s requests to charge are only given because plaintiff’s attorney so requests is not prejudicial in so far as it relates to requests to which defendant is not entitled.
    8. Same — Argumentative Instructions.
    In an action for injuries to a passenger while attempting to alight, an instruction that it was her duty to be observant and to heed what was going on around her, to notice whether or not the train was stationary, to observe when it started, and to protect and assist herself by the hand rails of the car, and be vigilant and see that no sudden movement would trip or throw her if she could prevent it, and if she failed to use due and ordinary precaution, etc., she could not recover, is objectionable, as argumentative.
    Error to Shiawassee; Smith, J.
    Submitted October 5, 1905.
    (Docket No. 11.)
    Decided December 15, 1905.
    Casé by Margaret O’Dea against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      O. JE. Butterfield (John T‘. McCurdy, Henry Bussel, and Ashley Pond, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Hooker, J.

The defendant has appealed from a judgment rendered against it on a charge of negligence. The plaintiff, a married woman of 55 years of age, and her brother, some years older, took defendant’s evening train, at Owosso for Henderson, the first station north of Owosso. According to her undisputed testimony the station (Henderson) was announced from the forward door of the coach, and as the train was slowing up the conductor entered, and the train stopped as he approached them. He did not take or ask for the tickets, but passed on, and the plaintiff then said to her brother, who, like herself, had remained seated until the conductor had passed: “ Get up! He has gone by.” She also testified that she supposed that he was coming for the tickets, and that she said to her brother, who was behind her: “This is the place to get off. Come on, he ain’t going to take up the tickets.” She then went out, and while upon the platform, or steps the train started with a jerk, and she was thrown to the ground and injured. She also stated that they “just raised up as the conductor came to the seat, because we thought he wasn’t going to stop for the tickets.” The tickets were not surrendered. The brother did not get off from the train at that time, and the train was afterwards stopped a few rods north of the station for him to alight. These are substantially the main facts in the case, and there is no serious dispute about them. The defendant offered no testimony as to what occurred in the car or at the steps. There were two engines upon the train, and the engineers and firemen were sworn as to the length of the stop at Henderson, and this is the disputed fact in the case. There is no evidence as to the whereabouts of the conductor or brakeman when she sought to alight, nor is there any testimony tending to show whether either of them knew that she and her brother intended or tried to get off at Henderson. Nor is there evidence that any other passengers stopped there.

Upon this state of facts the defendant contends that there is no evidence of negligence, for the reason that these parties neither tendered their tickets nor informed the conductor of their intention to leave the train there.

We are of the opinion that the managers of a train should use some diligence to ascertain whether there are persons in the act of leaving a train before starting it, especially when the stop is so short as to make haste necessary. There is evidence in this case indicating that the stop was brief, and we cannot say, as matter of law, either that there was an absence of negligence on the part of defendant’s agents, or that plaintiff was guilty of contributory negligence.

The plaintiff testified fully as to her • condition, pain, and suffering, and its duration. This it was competent for her to do. In addition to her testimony, her counsel called a number of witnesses, who were allowed to testify to her complaints, not what she said in her own language (which we do not imply would have been admissible), but the fact that she complained of this or that. She sent for Dr. Hume, not for the purpose of giving treatment, but because he was the company’s physician at Owosso. She declined medical assistance at Henderson, saying she wanted to wait and send for the railroad physician in Owosso, so they could see if she was hurt, if they wanted to settle; that she had a claim against the company (for the injury), and wanted to get her proof together — wanted the railroad doctor, so that they would know that she was hurt. The physician was allowed to testify:

“The patient complained of tenderness over the hip joint — that is, on pressure — and she also complained of some soreness in moving one shoulder.”

- This testimony was not admissible under the rule laid down in Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 544; McKormick v. City of West Bay City, 110 Mich. 270; and Comstock v. Township of Georgetown, 137 Mich. 541. The plaintiff’s own testimony shows that the witness was asked to call for the purpose of making testimony, and the fact that he did not come in response to the call, but for other reasons, is not important. It is the design of the plaintiff to make communications for the purpose of affecting her claim that makes them inadmissible, for the reason that they are not natural expressions of present sufferings, but voluntary statements for an ulterior purpose, and therefore • not within the exception to the hearsay rule.

Dr. Wilson testified:

“ She complained of pain in the left hip, and in the left side of the back between the shoulder and the spinal column, on motion of the shoulder, and some headache. I do not remember about pain, but she complained of soreness at the point of bruise.”

John Carmody, plaintiff’s son-in-law, testified as to the next Sunday (eight days after the accident):

Q. State to the jury whether or not that she complained of slight or severe pain, at this time that you have described, in these parts of her body.
“A. Severe. 7
Q. You may state to the jury whether or not she complained of any sickness or suffering in the stomach at the time.
“A. She did.”

And as to a week later still, as follows:

Q. How did she appear to you as to whether or not she was suffering pain ?
“A. She did appear to be suffering pain. I heard her make complaints of suffering present pain in her head, left limb, left side.
Q. Did she, or did she not, make complaints of suffering any pain in her back ?
“A. She complained of her back being lame.
Q. Did she complain of suffering any headache at that time ?
“A. She did.”

And as to twenty-three days after the accident:

Q. State to the jury whether or not upon this occasion Mrs. O’Dea still complained of suffering present pain.
“A. She did.
Q. State in what parts of her body at this time she complained of suffering pain.
‘ ‘ A. She complained of her left side, limb, shoulder, and back.”

This witness stated that he saw her at least once in two weeks for some months, and the following was permitted:

Q. What complaints, if any, does she make when she goes up stairs as to its hurting her, causing her pain —that is, at the time she was doing it, present pain ?
“A. She complained of her left leg and back.
Q. Mr. Carmody, state to the jury whether or not, as you have observed her going up stairs at that time, she complained of suffering present pain at that time in walking.
“A. She did.
Q. At what point of her body did she complain that it hurt her to go up stairs ?
“A. In her left limb and side.
Q. Mr. Carmody, what can you say as to whether or not at the time you have seen your mother-in-law, whether or not these complaints that you have described to the jury in the various parts of her body have continued over the whole space of time; that is, the time you have seen her ?
“A. They have.
Q. What can you say as to whether or not she appears to you to be getting better or worse of this lameness ?
“A. She doesn’t appear to be getting any better.”

Plaintiff’s husband and daughters, and Lena Wash-burn and Matilda Boyce, near neighbors, were allowed to give similar testimony. This testimony is hearsay testimony, but much, if not all, of it is admissible, unless it is subject to the same infirmity that is found in that of Dr. Hume. See Hyatt v. Adams, 16 Mich. 200; Will v. Village of Mendon, 108 Mich. 251; Strudgeon v. Village of Sand Beach, 107 Mich. 496; Mott v. Railway Co., 120 Mich. 136; Johnson v. McKee, 27 Mich. 473; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 543. It may reasonably be suggested that plaintiff’s attempt to make testimony for herself would not be likely to end with Dr. Hume, and such suggestion was a pertinent one to make to the jury, whose duty tó consider the question of simulation is thereby emphasized, but, in the absence of something specific indicating the connection of an improper purpose with such statements, it was proper to leave the testimony to the jury under appropriate instructions. .

Defendant’s complaint that counsel for plaintiff were permitted to show what her weight before the accident had been is without merit. We also think that the court did not err in refusing to admit testimony of a subsequent test to determine the length of time that the engineer probably took to oil his engine at Henderson on the occasion of this accident.

The court charged the jury that:

“ Gentlemen of the jury: On my judgment, some requests that were handed up on the part of the defendant I declined to give. They were marked ‘ c,’ £ d,’ and e.’ The attorney for plaintiff thinks, perhaps, I might y have made a mistake, although I am still of the same opinion, hut at his suggestion and his request I give these three requests on the part of the defendant, which are as follows:
“(c) I charge you that if you find the train on .which plaintiff claims she was injured stopped at Henderson a reasonable length of time for plaintiff to have alighted •therefrom in safety, if she had moved with reasonable diligence in so alighting from the train, then she cannot recover in this case, as there is no evidence that any person in charge of said train saw her in the act of alighting therefrom, and defendant is not guilty of negligence in starting its train.
(d) I charge you in this case that the jury may and should consider all the testimony offered by the defendant showing or tending to show how long the train_ remained standing at the station on the night in question. The fact, if you find it is a fact, that one of the engines attached to said train was partially disabled, and that one of the engines belonging to said train was running hot, and the engineer of said engine was on the ground at said station, and was inspecting and oiling the journals of said engine on each side thereof, and the length of time that was necessarily consumed thereby, and if the jury believe ■that the train stopped at said station for a period of time from three to four minutes, or a sufficient length of time for plaintiff to have alighted from it in safety by being diligent and expeditious in alighting therefrom, and she did not, then plaintiff cannot recover.
“(e) I charge you that it was plaintiff’s duty to be observant and to heed what was going on around her, to notice whether or not the train was stationary, and to observe when it started, and, when alighting, it was her duty to protect herself and assist herself by the hand rails on the car platform and running down the steps of the car, which were prepared for that purpose, and to be vigilant and see that no sudden movement would trip or throw her if she could prevent it; and, if plaintiff failed to use due and ordinary precaution that a prudent person would under the circumstances, and was injured in consequence of such failure to protect herself from injury as a prudent person would have done, then she cannot recover in this action.”

Counsel for plaintiff then said:

“You stated to the jury that it was against your honor’s judgment to give them. I wish you would instruct the jury that they are not to regard that remark.
The Court: No; you are to regard these instructions. I give these instructions to you to consider in connection with the facts, just the same as though I had given them in the first place.”

This was error. It was harmless, however, as to the first two requests, which defendant was not entitled to have given. The third was argumentative, and we should hesitate to reverse the case for the omission to give it.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Carpenter, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    PRESTON NATIONAL BANK v. WAYNE CIRCUIT JUDGE.
    1. Y enue — Change—Affidavit—Sufficiency.
    An affidavit for change of venue on the ground of local prejudice is sufficient if it follows the language of the statute, and entitles the moving party to a change (§ 10, subd. 3, Act No. 309, Pub. Acts 1905).
    2. Same — Constitutional Law.
    The statute as so construed is constitutional.
    3. Statutes — Construction — Statute Adopted from Other State.
    The adoption of a statute- of a sister State is presumed to have been with reference to the previous construction given to such statute by the courts of such State, and before this rule will be discarded the court must find some more potent reason than its own conviction of the unwisdom of such legislation as construed by the courts of such State.
    Mandamus by the Preston National Bank to compel Flavius L. Brooke, circuit judgb of Wayne county, to grant a change of venue.
    Submitted October 17, 1905.
    (Calendar No. 21,363.)
    Writ granted December 15, 1905.

      Geer & Williams and H. B. Martin, for relator.

      John C. Donnelly and Frederick W. Whiting, for respondent.
   Montgomery, J.

This is an application for mandamus requiring respondent to grant a change of venue in the case of the Union Trust Company against the relator. Relator, acting under Act No. 309, Pub. Acts 1905, filed an affidavit stating that the “defendant cannot have a fair and impartial trial of said cause in said county because of the odium attaching to the defendant and its cause of defense, on account of local prejudice here existing against defendant,” and that “defendant cannot have a fair and impartial trial of said cause in said county because the plaintiff has an undue influence over the citizens of said county.”

The statute provides that the court shall change the. venue in any civil action pending therein upon the application of either party made upon affidavit showing one or more of the following causes:

“Third, That the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, on account of local prejudice.”

It will be noted that the affidavit follows closely the language of the statute, and entitled the relator to the order asked if the statute shall be construed as intended to prescribe a form of affidavit rather than as designed to prescribe the fact to be established by affidavit. The circuit judge was of the opinion that the latter construction was the correct one. If the statute had no history the reasoning upon which the circuit judge reached the concluson announced would be quite persuasive. We find, however, that the statute in question was adopted verbatim et literatim from the statutes of Indiana, and had, prior to its adoption here, received a settled construction by the supreme court of that State. It was the established rule in that State that an affidavit in the language of the statute was sufficient and entitled the moving party to a change of venue. Cory v. Silcox, 5 Ind. 372; Shaw v. Hamilton, 10 Ind. 182; Rout v. Ninde, 118 Ind. 124. These cases also hold that no counter showing is allowable.

It is an established rule of construction that the adoption of a statute of a sister State is presumed to have been had with reference to the previous construction given to such statute by the courts of such State. Endlich on Interpretation of Statutes, § 371; 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 404; Stadler v. Moors, 9 Mich. 269; Weaver v. Rix, 109 Mich. 697; Stellwagen v. Wayne Probate Judge, 130 Mich. 166. While this rule of construction may not be absolutely imperative (see Stellwagen v. Wayne Probate Judge, 130 Mich., at page 176), yet the instances in which it has not been applied are very rare, and where some controlling counter consideration exists such as a fixed State policy wholly at war with such construction. See Endlich and Sutherland at sections cited, supra. Before we should feel at liberty to discard this rule, we would feel bound to find some more potent reason than our own conviction of the unwisdom of such legislation as construed by the courts of the State from which it was borrowed.

A doubt was expressed by the circuit judge of the constitutionality of this statute as construed by the Indiana court. We are cited to no case which holds such legislation unconstitutional. The constitutionality of similar enactments was assumed in Freud v. Wayne Circuit Judge, 131 Mich. 606. See, also, Gee v. Railway Co., 140 Mo. 314.

The mandamus is granted.

McAlvay, Blair, Ostrander, and Hooker, JJ., concurred.


author:
Grant, J.
     Per Curiam.

text:
    ARNOLD v. HARRIS.
    .1. Evidence — Opinions.
    In an action by an assignee in bankruptcy to recover property alleged to have been transferred by the bankrupt in fraud of creditors, a sheriff, who testifies, that he levied executions against the bankrupt at the time of his failure, and that he could find no property other than that on which he levied, should not be permitted to state that he became satisfied that the bankrupt had no other property and that he decided he had none.

      Z. Same — Value oe Property — Relevancy.
    In an action by an assignee in bankruptcy to recover the value of certain mining stock alleged to have been fraudulently transferred by the bankrupt, in which the value of the stock and the dividends are shown, evidence as to the reputation and standing of this and other mines in the vicinity is immaterial.
    3. Fraudulent Conveyances — Evidence.
    In an action to recover money transferred by defendant to one of his sons in fraud of creditors, evidence that the son was a first-class business man is irrelevant.
    ADDITIONAL OPINION.
    Costs — Appeal—Record.
    Where a record on error is unnecessarily prolix appellant will be allowed only a fair proportion of its cost on reversal.
    Error to Wayne; Donovan, J.
    Submitted October 17, 1905.
    (Docket No. 14.)
    Decided December 15, 1905.
    Additional opinion January 3, 1906.
    Assumpsit by Lewis M. Arnold, trustee in bankruptcy of Morris Harris, against Saul Harris, Benjamin Harris, Joseph Zechman, and George Clark, copartners as Harris Bros. & Co., and the National Mortgage Loan Company, for money had and received. There was judgment for defendants, and plaintiff brings error.
    Reversed.

      Plaintiff, as assignee in bankruptcy of Morris Harris, brought this suit to recover assets claimed to be in the possession of defendants and belonging to the bankrupt. Two of the defendants are Morris’ sons, one Zechman, a son-in-law, and the other defendant, Clark, was associated in business with them. It is claimed that they were partners, associated together under the name of Harris Bros. & Co. and the National Mortgage Loan Company. The precise claim is that the defendants fraudulently received money or property of the bankrupt which is invested in their business.
    The declaration contains four counts. The first is based upon the conversion by Morris of a large amount of his property into money, to wit, $35,000, which he concealed from his creditors and thereafter placed the same in the hands of the defendants and caused the same to be invested in the defendants’ business, with the intent to cheat, hinder, delay, and defraud his creditors, which defendants knew. The second charges the conversion of a large part of his stock of goods into money, which he concealed from his creditors with fraudulent intent, and which he caused to be invested in the name of his son Saul Harris, one of the defendants, in a zinc mine, known as the “ Morning Star Mine.” And from this mine there was realized, to wit, $35,000, which money was invested in the defendants’ business; they having knowledge thereof. The third count alleges the conversion by Morris Harris of a large portion of his stock into money, which he invested' in the name of his wife, Sarah Harris, and his son Saul Harris, to keep the same from his creditors, which sums of money and the proceeds have been disposed of and turned over by Morris Harris to the defendants and used by them in their business; they knowing that it was conveyed to them in fraud. The fourth count alleges that the defendants had become possessed of property of the value of, to wit, $35,000, through the fraudulent claim that the property was their own, which rightfully Belonged' to the trustee in bankruptcy; and that they refused to turn the same over, and for which injury an action upon the case for fraud might have been brought.
    Plaintiff gave evidence tending to support his claim, and defendants gave evidence tending to show that they had received no property from the bankrupt. The case was submitted to the jury, who found a verdict for the defendants.

      Bernard B. Belling, for appellant.

      Bloman & Bloman for appellees.
   Grant, J.

{after stating the facts), i. The case must be reversed for several errors committed by the trial judge. Morris Harris was a merchant in 1896 in Kansas. He failed. Several attachments were placed in the hands of the sheriff for service. The sheriff testified that he levied upon all the property that he could find. The claim of the defendants was that the sheriff then seized all the assets of Mr. Harris. The sheriff was a witness and was permitted to testify under objection and exception that he became satisfied that Mr. Harris had no property upon which he could levy, aside from that on which he had levied, and that he decided that he had none. This was clearly incompetent. This was not a case for expert testimony or opinions as to what the bankrupt had or did not have. It was competent to place before the jury the efforts which the sheriff made by virtue of his writs to find property, and what he found and levied upon. It virtually allowed him to give his opinion that the defendants had no mining stocks or other property in their possession belonging to the bankrupt, as the plaintiff claimed.

2. The court erroneously permitted the following question :

“ Do you know what the record and the standing of the various mines of the Oronogo district are, as to which are considered paying and good mines ? and What rank the Morning Star Mine held among the zinc mines in operation in that district ? ”

It was claimed that a false statement had been made by one of the defendants as to the amounts received from that mine, and it was claimed that this mining stock was actually the property of the bankrupt. The actual dividends and value of the stock were shown. The reputation or standing of this or other mines was wholly immaterial.

3. A witness was-permitted to testify under objection and exception that defendant Saul was, in his judgment, “a first-class business man for a young man of his age.” The testimony had no bearing upon the issue. The questions were: Did he have money ? and Where did he get it ? The fact that he was a shrewd business man had no-tendency to prove that he got none from his father.

4. The court erred in instructing the jury as to the proof required in cases of fraud. It is unnecessary to state the erroneous instructions. , They are substantially the same as those found in Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 555; McNaughton v. Smith, 136 Mich. 368, and other cases; and this case is ruled by those.

Judgment reversed, and new trial ordered.

McAlv-ay, Blair, Montgomery, and Hooker, JJ., concurred.

ADDITIONAL OPINION.

Per Curiam.

In writing the above opinion we inadvertently overlooked the claim of the defendants that, if the judgment should be reversed, the record being unnecessarily prolix, they should not be charged with the entire, costs of printing the record. We think this claim well founded, and we therefore hold that the appellant will recover onlv one-half the costs of printing the record.