text:
    PEOPLE v. HENRY.
    Criminal Law — Larceny—Intent—Evidence oe Other Crimes.
    Where, in a prosecution for breaking and entering a saloon with intent to commit larceny, the breaking was admitted, but it was claimed that respondent was too intoxicated to entertain the intent, it was error to admit evidence of two former convictions for larceny for the purpose of showing the intent; such convictions having taken place more than two years prior to the crime charged,, and it not being shown that the offenses were committed under circumstances similar to those in the case at bar.

      Exceptions before judgment from St. Clair; Thomas, J.
    Submitted November 21, 1901.
    Decided December 10, 1901.
    Joseph Henry was convicted of statutory burglary.
    Reversed.
    Defendant was convicted of breaking and entering a saloon in the night-time (January 31, 1901), with intent to commit the crime of larceny, not being armed with a dangerous weapon. The breaking was admitted. The defense was that, he was too intoxicated to entertain the intent. The court admitted in evidence the record of two former convictions for larceny, — one in September, 1898, and the other in January, 1899, — for the purpose of showing the intent with which respondent broke and entered.

      Burt D. Cady (S. A. Graham, of counsel), for appellant.

      Eugene E. Law, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). This evidence was incompetent. There was no connection whatever between the two former crimes and the one for which the respondent was on trial. There was nothing to. show that the larcenies for which he was then convicted were committed under circumstances similar to those in this case. Besides, the former crimes were not near in time to that of the crime here charged. This case is not within the rule of People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326). In that case proof of other acts of abortion in the same place by the respondent was held admissible as bearing upon the intent or purpose with which the operation which resulted in death in .that case was performed. Neither is it within the rule laid down in People v. Henssler, 48 Mich. 49 (11 N. W. 804), where the respondent was charged with obtaining the indorsement of one Kline to a promissory note by false pretenses. Similar transactions with Kline were held competent, as tending to show a purpose or scheme on the part of respondent by which he could obtain money or an indorsement of Kline, and that ‘ ‘ from his success in making similar false representations to Kline on previous occasions he had reason to believe the representation which he was about to and did make in the present instance would mislead and deceive, and enable him to obtain the indorsement.” A felonious intent is an essential ingredient in the crime of larceny. It is, in fact, the gist of the offense. This is a clear case of introducing evidence of one crime to prove the commission of another. It is within the rule of People v. Jacks, 76 Mich. 218 (42 N. W. 1134); Lightfoot v. People, 16 Mich. 507; People v. Lonsdale, 122 Mich. 388 (81 N. W. 277); State v. Johnson, 38 La. Ann. 686; People v. Barnes, 48 Cal. 551; People v. Ascher, 126 Mich. 637 (86 N. W. 140). “To make one criminal act evidence of another, some connection must exist between them.” Swan v. Com., 104 Pa. St. 218. Illustrations of this principle will be found in the following authorities: Osborne v. People, 2 Parker, Cr. R. 583; Mason v. State, 42 Ala. 532; Copperman v. People, 56 N. Y. 591; Phillips v. People, 57 Barb. 353.

Reversed, and new trial ordered.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    SCHIMPF v. WAYNE CIRCUIT JUDGE.
    1. Infants — Judgments Against — Nonappointment of Guardian.
    A judgment against an infant is not void because no guardian ad litem was appointed to represent him, but is voidable merely.
    2. Same — Vacating Judgment — Laches.
    Where a judgment was rendered against an infant shortly before he attained his majority, no guardian ad litem having been appointed to defend on his behalf, and for seven years thereafter he took no steps to have the judgment set aside, he was barred by his laches from obtaining such relief.

      Mandamus by John Schimpf, Sr., and John Schimpf, Jr., to compel Morse Rohnert, circnit judge of Wayne county, to vacate an order setting aside a judgment.
    Submitted October 8, 1901.
    Writ granted December 21, 1901.

      George W. Bates, for relators.

      Bowen, Douglas & Whiting, for respondent.
   Montgomery, C. J.

This is an application for mandamus to require the respondent to vacate an order setting aside a judgment rendered against Walter I. Owen on the 14th day of September, 1893. It appears that the firm of R. B. Owen & Sons was composed of Russel B. Owen, William B. Owen, and Walter I. Owen, and was indebted to relators on a promissory note. Suit was brought against the members of this firm on the 27th of July, 1893, and due service had, resulting in judgment, as before stated, on the 14th of September, 1893. On the face of the record, the proceedings are regular. On the 20th of November, 1900, a motion was made by the defendant Walter I. Owen to set aside the judgment by default as to him, on the ground that he was a minor at the time suit was commenced and judgment rendered, and that no guardian ad litem was appointed to represent him in the suit. This motion was granted, and it is to vacate this order that the present proceeding is had. The affidavit of petitioner states that he was 20 years of age when suit was instituted. He became 21 very shortly after the judgment was rendered.

There can be no doubt from the record that due service of process was had upon the defendant. The judgment was not void because of the failure to appoint a guardian ad litem, but voidable merely. See note to Johnson v. Waterhouse, 11 L. R. A. 440, and cases cited (s. c., 152 Mass. 585, 26 N. E. 234, 23 Am. St. Rep. 858). More than seven years elapsed from the time the judgment was rendered before the defendant took any steps to set aside this judgment. We think he was guilty of such laches as barred his right to have the judgment vacated. See Barnes v. Gill, 13 Abb. Prac. (N. S.) 169; McMurray v. McMurray, 41 How. Prac. 41; Kemp v. Cook, 18 Md, 130 (79 Am. Dec. 681).

The writ of mandamus will issue.

The other Justices concurred.


author: Moore, J.

text:
    MICHIGAN MUTUAL LIFE-INSURANCE CO. v. HARTZ.

    1. Taxation — Validity op Personal Assessment — CertiorariQuestions Reviewable.
    Where, on certiorari to review the action of the circuit court in granting a mandamus to strike out a personal property-assessment, the record fails to show that relator was possessed of any taxable personal property, the appellate court may properly refuse to consider the legal questions supposed to be involved.

      2. Same — Life-Insurance Companies — Mode of Assessment — Computation of Liabilities — Constitutional Law.
    2 Comp. Laws, §§ 5102, 7207, make it the duty of the commissioner of insurance to determine the liabilities and make a valuation of the outstanding policies of life-insurance companies, and provide that, in making such valuation, the rate of interest assumed shall be four per cent., and the rate of mortality shall be that established by the American experience life table. 1 Comp. Laws, § 3834, provides that the taxable personal property of insurance companies organized under the laws of this State shall be ascertained by deducting the value of the real property on which the company pays taxes from its net assets above liabilities, as determined and shown by the last report of the commissioner of insurance. Held,, that the method of taxation so provided is not obnoxious to the constitutional requirement of uniformity.

      Certiorari to Wayne; Donovan, J.
    Submitted October 8, 1901.
    Decided December 21, 1901.

      Mandamus by the Michigan Mutual Life-Insurance Company against John C.' Hartz and Benjamin Guiney, composing the hoard of assessors of the city of Detroit, and the common council of said city, to compel respondents to strike from the assessment roll a personal assessment against relator. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      C. A. Kent, for relator.

      John W. McGrath and P. J. M. Hally, for respondents.

       Rehearing denied February 11,1902.

   Moore, J.

Relator sought in the court below a mandamus to compel the assessing officers of Detroit to strike from the assessment, roll a personal assessment against the company. The mandamus was granted, and the case is brought here by respondents by certiorari.

Relator is a life-insurance company organized under the laws of Michigan. 2 Comp. Laws, §§ 7190-7220. Section 7200, 2 Comp. Laws, provides for annual reports of life-insurance companies to the secretary of state, and their report to the governor annually. Section 7207 requires every company to furnish the secretary of state with the necessary data for tabulating and determining all its liabilities. It provides that every life-insurance company shall annually “furnish the secretary of state the data necessary for determining the amount of its liabilities, and the valuation of all its outstanding policies, to be made by the secretary of state, or under his authority; and, in making such valuation, the rate of interest to be assumed shall * * * be four per centum per annum, * * * and the rate of mortality shall be that established by the ‘American Experience Life Table.’ ” The duties of the secretary of state in this regard were transferred to the commissioner of insurance. 2 Comp. Laws, § 5102.

The relator made its reports as required by law. The net assets of the company as shown by these reports were for the year ending December 31, 1899, $342,842.47, and the real estate of the company was $409,127.16. The net assets for the year ending December 31, 1900, were $413,-308.89, and the real estate was valued at $425,708.77. In the spring of 1901 the assessors notified relator they would assess against it a personal assessment of $413,360. A petition for mandamus was filed, which avers the reports of the commissioner of insurance, and also that said reports are a true statement of said company’s assets, liabilities, and surplus, and the form in which said surplus was invested. The respondents made answer, which admits the reports of the commissioner of insurance, but claims not to be bound by them, and avers that the respondents have had no opportunity of determining whether or not the statements of the reports are true. The answer admits that the real estate in Michigan cannot be taxed as personal property, but claims that the real estate in other States may be thus taxed. It avers, also, that an item in the report for 1900 of $12,411.47, for premiums paid in advance, 'is not a liability. It also avers that the respondents have fixed the liabilities of the company at $5,365,798.18, instead of $6,378,209.63, the amount determined by the commissioner, and claims that the difference between these amounts is taxable as personal property.

The circuit judge issued an order to show cause, and, upon the hearing before him, testimony was taken showing that the computation of liabilities was made by the insurance commissioner, or an actuary from his office, who checks over and approves the calculations made by the company; that the reserve on the policies for the year ending December 31, 1900, was §6,351,160.03; that, when the table of mortality and rate of interest are fixed, the calculation is a purely mathematical one, and the result certain; that this reserve is accepted everywhere where the rate of interest and mortality tables are the same. Testimony was also given showing that the credits of the company were put in at their face, with interest, and the real estate at cost, save where it has a market value in excess of this; that the commissioner has never complained that the value is too low. The evidence shows that the reports to the commissioner of insurance are correct. Respondents put in evidence, subject to objection, that many policies of the company fail to be continued on account of the nonpayment of premiums, and that this is not' considered in calculating the reserve. Relator gave testimony tending to show that this failure to pay premiums is an injury to relator.

The circuit judge found that the item of $13,411.47, premiums paid in advance, constitutes a liability against the company, and that, when the value of the real estate upon which the relator paid taxes was deducted from its net assets, there was no personal property which the assessors could properly assess against the relator. The circuit judge based his ruling upon that part of section 3834, 1 Comp. Laws, reading as follows:

“ In computing the taxable property of insurance companies organized under the laws of this State, the value of the real property on which a company pays taxes shall "be deducted from its net assets above liabilities, as determined and shown by the last report of the commissioner of insurance, and the remainder shall be the amount of personal property for which the company shall be assessed. ”

The allegation of error in the affidavit for certiorari is as follows:

“Your petitioners represent that they are advised that the court erred in granting said writ of mandamus, for the reason that section 3834= of the Compiled Laws of 1897, in so far as it adopts the determination of the commissioner of insurance as a basis of the taxation of life-insurance companies, violates section 11 of article 14 of the Constitution of the State of Michigan, requiring the legislature to provide a uniform rule of taxation.”

The primary question in the case is whether it is shown the relator had taxable personal property which ought to have been put upon the roll. The record fails to show any such property, and for that reason we might properly decline to review the action of the circuit judge; but, inasmuch as the constitutionality of the statute is raised, we may as well pass upon it.

This statute was passed a number of years ago, and was before this court in Standard Life & Accident Ins. Co. v. Board of Assessors of Detroit, 91 Mich. 517 (52 N. W. 17), and Id., 95 Mich. 466 (55 N. W. 112). In these cases it was held that, in computing the personal property assessable against the company, there should be deducted from the net assets of the company the value of the real-estate mortgages held by the company. Evidently the question of the constitutionality of the act did not occur to any one.

The position of counsel in this case, as stated in their brief, is as follows:

“Section 11 of article 14 of the Constitution provides that ‘the legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law.’ Section 12 provides that ‘all assessments hereafter authorized shall be on property at its cash value.’ Respondents insist that section 7207 provides an arbitrary rule for the determination of the amount of the liability of life-insurance companies, and section 3834 makes the determination of the insurance commissioner by that arbitrary rule the basis of the taxation of such companies, and is therefore unconstitutional.”

We do not agree with counsel in this conclusion. It is true that it is the duty of the legislature to provide a uniform rule of taxation, except upon property paying specific taxes. It is also true that the matter of deciding the value of property, about which men may differ, calls for the exercise of judgment. The value of a large and complex business may require the exercise of the judgment of men trained in the business, and possessing the knowledge not possessed by the ordinary man. We all know that the business of life insurance has attained enormous proportions. It affects so many interests that the State has attempted to say under what conditions it may be conducted, and has created a department of insurance for the purpose of supervising the business. The legislature has given the insurance commissioner very large powers, calculated to enable him to find out what are the assets of any and all companies doing business in the State. The legislature, evidently believing that the commissioner was especially qualified to determine the amount of the assets of insurance companies, passed the statute in question. There is nothing in the record to indicate that tax assessors would be more likely to do this work well than would the insurance commissioner; but, whether they would or not, the legislature has seen fit to impose the duty upon the insurance commissioner. The statute applies to all insurance companies organized under the laws of this State, and does not violate the constitutional requirement of uniformity of taxation.

The action of the circuit judge is affirmed.

Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit.


text:
    THOMAS E. LYNCH CO. v. WAYNE CIRCUIT JUDGE.
    Notaries — Attorneys — Justice’s Judgment — Transcript — Striking from Files.
    1 Comp. Laws, § 2640, provides that it shall not be lawful for notaries public who are attorneys at law to administer oaths in causes in which they are professionally engaged. A plaintiff in a suit in justice’s court appeared by M., an attorney in the employ of a firm of attorneys that plaintiff had engaged to represent him. Ten days after the rendition of a judgment for the plaintiff, a member of said firm of attorneys executed an affidavit for a transcript of the judgment before M. as notary. M. also appeared for the plaintiff subsequently in a chancery suit based on such judgment. Held, not to show such a relation between M. and the plaintiff at the time the affidavit was made as to entitle the defendant to have the transcript based thereon stricken from the files.

      Mandamus by the Thomas E. Lynch Company to compel William L. Carpenter, circuit judge of Wayne county, to strike from the files a transcript of a justice’s judgment.
    Submitted December 10, 1901.
    Writ denied December 21, 1901.

      Walter M. Trevor, for relator.

      Graves & Hatch, for respondent.
   Moore, J.

The relator has filed this petition, stating, in substance, that it was sued in justice’s court by C. D. Widman & Co.; that in that case the plaintiff appeared personally and by Wade Millis, an attorney at law in the employ of Graves & Hatch, who conducted all the proceedings in justice’s court; that judgment was rendered against relator March 16, 1901; that on the 26th of March, 1901, Mr. Graves made an affidavit before Mr. Millis as the basis of a transcript from the judgment, and a transcript was issued to the circuit court. An execution was issued. It was returned nulla bona, and afterwards a judgment creditor’s bill was filed. It also appears that in the course of the proceedings in that case, on May 27, 1901, the joint affidavit of Mr. Graves and Mr. Millis was filed, in which they state “they have had charge of the above-entitled cause from the time the bill of complaint was filed until the date hereof.” In the chancery cause the only solicitors of record are Graves & Hatch, and their names alone appear on the docket in the justice’s court case, as appears by the transcript of the justice. It is the claim of Graves & Hatch that they were the attorneys employed by C. H. Widman & Co., and that Mr. Millis was not employed by that corporation, and had no interest in the result of that suit; that he was simply acting as their agent in what he did in the justice’s court, and, when judgment was rendered in justice’s court, his connection with the case ended, and he had no professional connection with the case at the timé the affidavit for transcript was made. October 21, 1901, the relator applied to the circuit judge for an order striking the transcript from the files. The judge refused to grant the order. This is an application for a writ of mandamus to compel him to do so, for the reason that Mr. Millis was disqualified when the affidavit was sworn to before him, by reason of the provisions of section 2640, 1 Comp. Laws, which reads:

“It shall not be lawful for notaries public who are attorneys and counselors at law or solicitors in chancery to administer oaths in causes in which they may be professionally engaged.”

This motion is technical in its character, and should not prevail in this stage of the proceedings, unless relator has brought the case within the provisions of the law. It does not follow that, because an attorney has been employed in justice’s court, he continues to be the attorney for the party for whom he appeared after the judgment is rendered. In Clark v. McGregor, 55 Mich. 412 (21 N. W. 866), it was said, “ Nobody is standing attorney for a party toa judgment in justice’s court.” In Berkery v. Wayne Circuit Judge, 82 Mich. 160 (46 N. W. 436), it was said:

“ Parties may appear in justices’ courts and prosecute or’ defend either in person or by attorney. Such courts being of special and limited jurisdiction, the authority of the attorney extends no further than the proceedings before the justice.”

We think the relator has failed to show such a relation between Mr. Millis and the plaintiff in the case before the justice at the time the affidavit for a transcript was made as entitles the relator to the writ of mandamus.

The application is denied.

Montgomery, C. J., Long and Grant, JJ., concurred with Moore, J. Hooker, J., concurred in the result.


text:
    RHODE v. METROPOLITAN LIFE-INSURANCE CO.
    1. Life Insurance — Action on Policy — Physical Condition of Insured — Evidence—Report of Examining Physician.
    In an action on a life-insurance policy, defended on the ground that the insured was not in sound health when the application was made and the policy delivered, the report of the company’s examining physician, on which the policy was issued, is admissible in evidence to rebut such contention.
    2. Same — Question for Jury.
    Where, in an action on a life-insurance policy, th'e proofs were strong that insured was afflicted with pulmonary consumption when he received the policy, but the report of the company’s examining physician, accompanying the application for insurance, was to the effect that insured’s lungs were healthy, and that, in the examiner’s opinion, he was in good health, there was such a conflict in the testimony as to warrant the submission of the question of insured’s physical condition to the jury.
    3. Same — Attendance of Physician.
    In an action on a life-insurance policy, statements by the insured tending to show that he had been treated by a physician within two years, contrary to the representation in his application, are competent evidence.

      4. Same — Severity of Illness — Burden of Proof.
    A breach of warranty in a life-insurance policy, that the insured had not been under the care of a physician within two years, is shown prima facie by proof that he had been attended by a physician within that period; and, if it be the fact that such . attendance was for a mere temporary indisposition, not within the contemplation of the policy, it devolves on the plaintiff to prove it.
    5. Same — Prior Application — Notice.
    A life-insurance company on a second application for insurance, the first having been postponed, is not bound to take notice of what was contained in the prior application.
    Error to Wayne; Brooke, J.
    Submitted October 10, 1901.
    Decided December 21, 1901.

      Assumpsit by Minnie Rhode against the Metropolitan Life-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Haug & Yerkes, for appellant.

      Bowen, Douglas & Whiting, for appellee.
   Montgomery, C. J.

This is an action on a policy of insurance issued on the life of Michael Rhode. Plaintiff recovered, and defendant brings error. It appears that on November 19, 1899, the application for insurance, jn the sum of $500, was made by deceased. A policy was issued on this application, bearing date December 7, 1899, On March 8, 1900, the insured died from tuberculosis pulmonalis. The plaintiff furnished proofs of death, and, upon the defendant’s refusing payment, instituted this suit.

It is contended by the defendant on this appeal that the evidence conclusively shows that the insured was not in sound health at the time when the application was made, and at the time when the policy was issued; that the insured misrepresented the facts in his .application relative to prior attendance and treatment by physicians; that the court erred in striking out testimony bearing upon this subject. The other questions presented are subsidiary and dependent.

The policy of insurance contained a provision as follows:

“No obligation is assumed by the company until the first premium has been paid, nor prior to this date, nor unless upon this date the insured is alive and in sound health.”

And the application contained a clause as follows:

“I further agree that the company shall incur no liability under this application until it has been received, approved, and the policy issued thereon by the company at its home office in New York, and the premium has actually been paid to and accepted by the company during my lifetime, and while I am in good health.”

The proofs tending to show that the deceased was afflicted with pulmonary consumption at the time of the receipt of this policy are certainly very strong, and, if the question were to be determined by us as a question of fact, there would be little room for discussion. But, as we view the case, the question of whether there was a conflict in testimony upon this subject must be determined by the answer to another question, which is raised by defendant’s counsel, which is whether or not the statement of the examining physician, made at the time of the examination, November 19, 1899, in which he states the condition in which he found the lungs of the insured, and his opinion as to his condition of good health, is admissible in evidence as against the defendant. It does not appear that this question has ever been presented to this court in just this form. But we have no doubt, on principle, that such testimony is competent evidence against the defendant. The physician is a representative of the insurance company. He is employed for the very purpose of determining the physical condition of the applicant. His examination is supposed to be made with the utmost care, and with due regard to the interests of his employer. We can conceive of no reason why his statements, made at the time, should not be received as competent evidence. The only case to which our attention is directed which bears upon the question affirms the admissibility of such testimony. Holloman v. Insurance Co., 1 Woods, 674 (Fed. Cas. No. 6,623). See, also, 1 Joyce, Ins. § 412. We do not mean to intimate that such testimony is conclusive, but that it is receivable, as bearing upon the question of the condition of health of the applicant at the time the examination was made, we think is clear. It cannot be said, therefore, that there is no conflict of testimony upon the question of decedent’s physical condition, and it follows that it was not error in the circuit judge to submit that question, and the force of that testimony, to the jury.

The application contained the statement of the insured that he had not been under the care of a physician within two years. The testimony shows, without dispute, that he was attended by at least one physician within the period named, and, on the trial, Dr. Kestell, who testified that he' attended upon the deceased on November 10, 1899, testified that deceased told him that he had been previously treated by Dr. Shurly. On motion of the plaintiff, this testimony was stricken out. We think there was error in this ruling. It is said that the previous question and answer, namely, as to whether he had been attended by a physician, was not stricken from the record. But the record shows the following:

Q. Do you know whether or not Rhode had been treated by any other physician before he came to your house ?
“A. He said he was.
Q. Who did he say treated him?
“A. Dr. Shurly.
Mr. Murfin: I object to that, your honor.
The Court: I think that may be stricken out.”

We think it can hardly be doubted that the jury must have understood that the testimony upon this whole subject was withdrawn from their consideration.

But it is said that there was nothing in the question to indicate whether or not the answer would show a breach of the warranty; that, while the answer that he was treated by a physician was probably material as far as it went, it should be shown for what he was treated, in order to show whether it constituted a breach of the warranty. Counsel cite Hann v. National Union, 97 Mich. 513 (56 N. W. 834, 37 Am. St. Rep. 365), and Plumb v. Insurance Co., 108 Mich. 94 (65 N. W. 611), in this connection. These cases hold that merely calling upon a physician for some temporary indisposition, which does not tend to weaken or undermine the constitution of the insured, would be no breach of the warranty. But, in each of these cases, the plaintiff offered affirmative testimony to show that the treatment of the physician was for some temporary indisposition. Neither of the cases held that it is not sufficient, prima facie, to show a breach of a warranty such as that involved in this case, to prove that the insured had in fact been attended by a physician. Indeed, to so hold would be doing violence to the very terms of the stipulation; and, when the defendant in this case was prepared to show that the deceased had,- within two years prior to the making of this application, been attended by one or more physicians, this was prima facie a breach of his contract, and the burden would be upon the plaintiff to show that the attendance was not for any ailment which tended to weaken or undermine his health seriously.

It appears to have been suggested in the court below that, inasmuch as some,.of these facts appeared in the records of the company, in a previous application for insurance, which had been postponed, the company must be bound to take notice of what was contained in such prior application. But this position is negatived by the holding of the court in Brown v. Insurance Co., 65 Mich. 306 (32 N. W. 610, 8 Am. St. Rep. 894).

For the error pointed out, the judgment will be reversed, and a new trial ordered.

Moore and Long, JJ., concurred with Montgomery, C. J. Hooker, J., concurred in the result. Grant, J., did not sit.


author: Hooker, J.

text:
    BOWEN v. LANSING.
    Land Contracts — Death of Vendor — Interest of Heir — Execution.
    The interest of a vendor in land held by the vendee under a contract of purchase, on the death of the vendor, goes to his administrator as personalty, and is not subject to sale on execution against the heir.
    Appeal from Wayne; Rohnert, J.
    Submitted October 22, 1901.
    Decided December 21, 1901.
    Bill by Herbert Bowen, administrator of the estate of Angus Keith, deceased, against James B. W. Lansing and G. Duffield Stewart, to remove a cloud from .title. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Bowen, Douglas & Whiting, for complainant.

      John H. Patterson {Clark, Durfee & Allor, of counsel), for defendants.
   Hooker, J.

Angus Keith, an incompetent person, being possessed of certain land upon Grosse Isle, contracted by an ordinary land contract, through his legally appointed guardian, the Union Trust Company' to convey it to Lulu D. Wormer. The purchase price was §2,500, $500 of which was paid at the time the contract was made. Before full payment, but after a part of the purchase money had been paid, and after the vendee had been put in possession under the contract (according to complainant’s claim), Mr. Keith died, leaving as his sole heir his son, A. Douglas Keith. The complainant, Bowen, was appointed administrator of Keith’s estate, which consisted of $50 worth of household property and his interest in the land contracted to Wormer. Claims aggregating $400 or $500 have been presented, and the administrator has no means with which to pay them, aside from the money due or to become due upon Wormer’s contract, amounting to upwards of $3,000.

' Angus Keith died on January 24, 1899, and on the 7th day of February, 1899, defendant Lansing, a judgment creditor of A. Douglas Keith, caused his codefendant, Stewart, a sheriff, to levy a writ of fieri facias in favor of Lansing upon the interest of said A. Douglas Keith in said premises, and to advertise the same for sale. This was about a month previous to complainant’s appointment as administrator. After said levy the administrator filed this bill to remove the cloud from the title caused by defendant’s levy, alleging the foregoing facts, and that Wormer was ready to pay the purchase money when she could obtain a clear title to the premises, but refused payment until this cloud should be removed. Subsequently defendant Lansing purchased the premises at the sheriff’s sale.

Counsel seem to agree that the only question raised is whether the interest of Angus Keith in this land descended to A. Douglas Keith, so as to be subject to a levy. Complainant contends that it is personal property, and therefore belongs to the administrator, and that it was not subject to such levy. Defendants maintain that it is an interest in lands, which descended to the heir, by operation of law, upon the death of the ancestor, subject to the rights of creditors, and that it was susceptible to a levy for the debts of the heir, subject to such rights as creditors may have.

When we shall have determined the character of the interest remaining in a vendor of land held by the vendee upon contract of purchase merely, we shall have gone far in ascertaining whether it is such as will descend to the heir as real estate, or go to the administrator as personalty. In the early case of Wing v. McDowell, Walk. Ch. 181, it was said:

“At law a contract for the purchase of land gives the vendee no interest in the land; but the rule is otherwise in equity, which considers the vendor, as to the land, a trustee for the purchaser, and the vendee, as to the money, a trustee for the seller. In equity the land belongs to the vendee, and may be sold, devised, or incumbered by him, and on his death will descend to his heirs. Seton v. Slade, 7 Ves. 265, 274; Paine v. Meller, 6 Ves. 353; Champion v. Brown, 6 Johns. Ch. 398 (10 Am. Dec. 343). It must be taken, however, subject .to the rights of the vendor under the contract. And, McDowell having an equitable interest in the land under the contract, the mortgage from him to Simmons was an equitable mortgage of that equitable interest.”

This was emphasized by Fitzhugh v. Maxwell, 34 Mich. 138, where it was again said that the legal title remained in the vendor as a trust, and that his only equitable claim upon it was by way of security for his debt in the nature of a vendor’s lien, which could only be made effective to devest the vendee’s equitable title by a sale through proceedings to foreclose the vendor’s lien. In Walker v. Casgrain, 101 Mich. 608 (60 N. W. 292), it was said:

“While complainant holds the legal title, defendant Casgrain is the owner in equity. The claim of the vendor is but an ordinary money debt, secured by the contract. ”

See, also, Corey v. Smalley, 106 Mich. 260 (64 N. W. 13, 58 Am. St. Rep. 474); O’Brien v. Evans, 107 Mich. 623 (65 N. W. 571).

Many authorities are cited by counsel for the complainant in support of their contention that a vendor’s interest is not real estate, and does not pass to the heir, but is personalty, and goes to the administrator. The rule is so stated in 11 Am. & Eng. Enc. Law (2d Ed.), 843, where the authorities are collected, representing the States of Arkansas, Indiana, Massachusetts, New York, Pennsylvania, Illinois, and Wisconsin. See, also, Warv. Vend. 189, and authorities cited; Sugd. Vend. marg. p. 177. In Scott v. Davis, 141 Mo. 226 (42 S. W. 717), the court quotes with approval from 22 Am. & Eng. Enc. Law, 1064, the following language, viz.:

‘ ‘ The personal representative of the vendor is generally the proper party to enforce specific performance when the purchase money is unpaid, after the death of the vendor, although, if a conveyance has to be made, the vendor’s heirs or devisees may also be necessary parties,” — citing Pom. Cont. § 494; Fry, Spec. Perf. (3d Ed.) § 190; Perry’s Adm’rs v. Roberts, 23 Mo. 221; Leeper v. Lyon, 68 Mo. 216; Butler v. Rockwell, 14 Colo. 125 (23 Pac. 462); Hill v. Proctor, 10 W. Va. 59; Angell v. Steere, 16 R. I. 200 (14 Atl. 81); Potter v. Ellice, 48 N. Y. 323.

As the foregoing authorities indicate that the vendor’s title is only a trust coupled with an interest by way of security for a debt, which is personalty, so the following (cited by counsel) are in harmony in holding that the vendee is the cestui que trust as to the legal title, and that his interest is real property, and descends to his heirs (in equity), who are the proper ones to file a bill for specific performance. Champion v. Brown, 6 Johns. Ch. 400 (10 Am. Dec. 343); Pom. Cont. § 494; Lavender v. Abbott, 30 Ark. 172; Palmer v. Morrison, 104 N. Y. 132 (10 N. E. 144); Bender v. Luckenbach, 162 Pa. St. 22 (29 Atl. 295); Sutter’s Heirs v. Ling, 25 Pa. St. 466; Miller’s Adm’r v. Miller, 25 N. J. Eq. 354; Skinner v. Newberry, 51 Ill. 203; Lewis v. Smith, 9 N. Y. 502 (61 Am. Dec. 706); Smith v. Gage 41 Barb. 60; Potter v. Ellice, supra; Denham v. Cornell, 67 N. Y. 556; Compo v. Iron Co., 49 Mich. 44 (12 N. W. 901); House v. Dexter, 9 Mich. 246; Baxter v. Robinson, 11 Mich. 522; Qustin v. School District, 94 Mich. 502 (54 N. W. 156, 34 Am. St. Rep. 361).

It is clear that, upon the death of the vendor, the chose in action, with the security represented by the contract, became a part of the personal assets of the estate, and the interest of' A. Douglas Keith therein was prospective merely, and contingent upon the course of administration. If the legal title descended to him, he held it merely by a tenure analogous to that of a “dry trustee,” for such person as should become entitled to it by payment of the contract price, or by purchase upon foreclosure of the lien; and he had no interest that could be acquired by sale on execution. Battle v. Petway, 27 N. C. 576 (44 Am. Dec. 59); Boardman v. Willard, 73 Iowa, 20 (34 N. W. 487); Robinson v. Chapline, 9 Iowa, 91; Hollingsworth v. Trueblood, 59 Ind. 542; Cox v. Arnsmann, 76 Ind. 210; Bostick v. Keizer, 4 J. J. Marsh. 597 (20 Am. Dec. 237); Williams v. Fullerton, 20 Vt. 346; Townsley v. Barber, 27 Vt. 417; Rankin v. Barcroft, 114 Ill. 441 (3 N. E. 97); Campfield v. Johnson, 5 N. J. Eq. 245. We are of the opinion that the execution debtor, A. Douglas Keith, had no interest in the land subject to sale on execution, and that the purchaser took no title by his purchase at such sale.

The decree of the circuit court will be reversed, and complainant may take a decree in accordance with the prayer of his bill, with costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    EDWARDS v. FOOTE.
    1. Street Railways — Collision with Vehicle — Negligence-Evidence.
    In an action for injuries received by plaintiff from the collision of a street car with a buggy in which he was riding, it was not error to refuse to permit the conductor to state what the driver of the buggy said concerning the accident; the conversation not being within plaintiff’s hearing, and it not appearing that it was at or immediately after the accident.
    2. Same — Question for Jury.
    A horse hitched to a buggy in which plaintiff was riding stumbled and fell on a street-car track, and floundered and fell again, and the buggy was struck by a car, and plaintiff was injured. It was his contention that the car was running at an unlawful rate of speed, and, also, that the motorman was negligent in not stopping it in time to prevent .the accident. The testimony as to the speed of the car, the distance it was from the buggy when the danger became apparent, and the distance it ran after the collision, was conflicting; but plaintiff testified that, when the horse first stumbled, the car was 10 to 12 rods distant, and that it ran some 9 rods after striking the buggy. Held, that the question of defendant’s negligence was properly submitted to the jury.
    3. Same — Contributory Negligence.
    It was also for the jury to say whether plaintiff was negligent in not jumping from the buggy.
    4. New Trial — Newly-Discovered Evidence.
    A motion for a new trial on the ground of newly-discovered evidence is properly denied where it is not shown that any effort was made to secure the attendance of the proposed witness at the trial; he having been within the jurisdiction of the court, and his familiarity with the circumstances involved being known to the complaining party.
    Error to Jackson; Peck, J.
    Submitted October 25,1901.
    Decided December 21, 1901.
    Case by Charles K. Edwards against William A. Eoote, receiver of the Jackson Street-Railway Company, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff brought suit to recover damages for injuries sustained in a collision with one of defendant’s street cars while driving across its track. At the time of the accident, plaintiff was riding with his son-in-law, Mr. Forner. The horse they were driving was a nervous, excitable animal, and afraid of the street cars. They were seated in a low, covered carriage, with the top clear down. Forner, who was driving, sat on the right side of the vehicle. They were going north on Van Dorn street, and were in the act of crossing the street-car track on Main street when the vehicle was struck by the car. The track and pavement were wet and slippery, rendering it more difficult to stop the car than it otherwise would have been. As to the manner of the accident, the plaintiff relied solely on his own testimony. He testified:

      “As we got to Main street we halted, and saw a car coming from the west, down by the depot. Believing we had ample time to cross, Eorner spoke to the horse. She responded promptly, and started at a rapid pace, — between a rapid walk and a trot; a quick, nervous movement. When she got on the track she slipped and stumbled forward, falling clear down in a sort of sprawling position; that is to say, she didn’t go on either side, but sprawled out. She instantly made an effort to regain her feet, and did, or practically, at least, but instantly slipped again, and, in slipping and moving ahead, she swerved to the right. We were headed north. She slipped and turned to the right in her effort to keep her feet, and went down, striking on her right side, — clear down. She instantly made an effort to get up, and struck out bn her left front foot and her right front knee, and was in that position when we were struck by the car. After the first fall I noticed where the car was, and I should judge it was 10 or 12 rods west of us. I didn’t see the car again until after I was thrown out. When the horse first slipped, the buggy was square across the track.”
    The car was coming from the left of the buggy. The horse had drawn the buggy diagonally to the right, so that the left wheel had passed beyond the reach of the car, and it struck the right wheel. Plaintiff and Mr. Eorner saw the car as thev came within the line of vision upon Main street from Van Dorn street. They thought they had ample time to cross, and would have crossed in safety if the horse had not slipped.
    The evidence on the part of the defense is that the car was going at its ordinary rate of speed; that the motorman, as soon as he saw that the carriage and its occupants were in danger, applied the brakes, and did all in his power to stop his car to avoid the accident. The only testimony from which negligence can be inferred is the testimony of plaintiff and some others as to the speed of the car, and the distance it was from the place of the accident when approaching, and the distance therefrom when it was stopped. The case was submitted to the jury upon the theory that the car was running at an unlawful rate of speed, and that the motorman did not use the efforts that he should have used to stop the car and avoid the accident. Plaintiff recovered verdict and judgment.

      Wilson & Cobb, for appellant.

      Blair, Smith & Toionsend, for appellee.
   Grant, J.

(after stating the facts). 1. The first error alleged is upon the ruling of the court in refusing to permit a witness for the defendant to testify to what Mr. Porner, the driver, said after the accident. The witness was the conductor of the car. The question arose in this way:

Q. Did you have any talk or hear any talk between the driver and any one after the accident occurred ?
“A. Yes, sir.
Q. What, if anything, did the driver of the vehicle say with reference to his getting across the track at that time in front of the car ?
A. I couldn’t say that those statements were made in Edwards’ presence. I don’t think that Edwards could have heard the statement.”

The question was then objected to, and the objection sustained. We think the ruling of the court was correct. The evidence did not show that the conversation occurred at or immediately after the accident. Evidently Edwards had left. It was not a part of the res gestae. Mabley v. Kittleberger, 37 Mich. 360; Lane v. Bryant, 9 Gray, 245 (69 Am. Dec. 282).

2. We think the question of negligence was properly submitted to the jury. The distance of the car from the place of the accident when it appeared that there was danger of a collision, and the distance it went after the collision, were controverted questions of fact. The car was going upgrade. The speed of the car depended largely upon these distances. The plaintiff testified that, when the horse first stumbled, he looked at the car, and, in his judgment, it was between 10 and 12 rods distant. While common experience teaches every one that an opinion under these circumstances is not very reliable, still, that was a question for the jury, in connection with all the other testimony in the case upon the matter of speed and distances. The question of liability is a very close one, but we think there was sufficient conflict of evidence to make it a question for the jury.

3. It is also urged that plaintiff was guilty of contributory negligence in not jumping from the buggy when he saw the car approaching. It was, of course, his duty to do this if he saw the danger, and had the time and oppor-, tunity to do so. The difficulty in jumping from the carriage, with the horse floundering about and jumping in the effort to regain her feet and run on, is apparent. We do not think that plaintiff, as a matter of law, was required to take the risk; nor do we think the evidence conclusively shows that he fully comprehended the situation, so that he was guilty of negligence in not jumping from the carriage. It was a question of fact for the jury to determine whether, under the circumstances, it was his duty to do so, and this was left fairly to them.

4. Mr. Forner, plaintiff’s son-in-law, was not called by him as a witness. It appeared upon his cross-examination that Mr. Forner had been interviewed by plaintiff’s attorneys, and after such interview they decided not to call him as a witness. Upon a motion for a new trial, defendant produced Mr. Forner, and examined him before the court. His testimony was material to the defense, and was contradictory to that of the plaintiff. The court, however, denied the motion for a new trial upon the ground that defendant had not exercised due diligence in procuring Mr. Forner as a witness at the trial. We see no reason to interfere with this ruling. Mr. Forner was within the jurisdiction of the court, and, if it had been necessary, counsel might have applied for a delay in the trial to subpoena him; but it does not appear that any such effort was made, or, in fact, that any effort was made to produce him. For this reason we must decline to interfere with the ruling of the court.

The judgment is affirmed.

Montgomery, C. J., Moore and Long, JJ., concurred with Grant, J. Hooker, J., concurred in the result.


text:
    CHURCH v. CALHOUN CIRCUIT JUDGE.
    Arrest — Capias—Malpractice—Sufficiency of Affidavit.
    The affidavit for a capias ad respondendum must contain allegations as to which the affiant could testify on the trial. Hence, an affidavit by the plaintiff, charging defendant with negligently performing a surgical operation on plaintiff’s wife, thereby causing her death, but containing nothing to indicate that plaintiff is possessed of the knowledge of a medical expert, so as to be competent to express an intelligent opinion on the questions relating to the charge of negligence, is insufficient to support the writ.

      Mandamus by William B. Church to compel Herbert E. Winsor, circuit judge of Calhoun county, to quash a writ of capias ad respondendum.

    Submitted October 29, 1901.
    Writ granted December 21, 1901.

      John G. Patterson (Miller & Miller, of counsel), for relator.

      J. M. Powers and W. 8. Powers, for respondent.
   Hooker, J.

The relator was arrested upon a capias ad respondendum. The affidavit charges him with negligently performing a surgical operation upon the person of plaintiff’s wife, thereby causing her death. The affidavit is made by the plaintiff, and contains nothing indicating that he is possessed of the knowledge of a medical expert, whereby he would be able to form, and competent to express, an intelligent opinion upon the questions relating to the charge of negligence. A motion to quash the writ was based upon this and other grounds.

Were plaintiff offered, upon a trial of the cause, as a witness to prove the charge, his opinion as to the defendant’s negligence would not be admissible. He would be competent to testify as to what the defendant did, or omitted to do; but whether what he did, or omitted, constituted negligence or unskillfulness, and whether the wife’s death was a consequence or not, would necessarily depend upon the evidence of persons shown to possess technical knowledge. We understand that the affidavit for a capias must contain allegations which could be testified to by the affiant upon the trial, and that, if incompetent to testify to necessary facts upon the trial, the statement of such facts in the affidavit is insufficient, and fails to make a prima facie case, authorizing an order to hold to bail. Sheridan v. Briggs, 53 Mich. 569 (19 N. W. 189); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348); Shaw v. Ashford, 110 Mich. 534 (68 N. W. 381). As in any other case where the affiant has not the requisite personal knowledge, a supplemental affidavit, by a person prima facie competent, was necessary. Badger v. Reade, 39 Mich. 771; Mayo v. Wright, 63 Mich. 40 (29 N. W. 832); Spaulding v. Bliss, 83 Mich. 311 (47 N. W. 210).

We are of the opinion that the motion should have been granted. The writ will issue.

Thé other Justices concurred.


text:
    BLISS v. MACOMB PROBATE JUDGE.

    1. Mandamus — When Lies.
    The writ of mandamus cannot he invoked to obtain the judgment of the Supreme Court on questions of law that were not properly before the tribunal whose action it is sought to review.

      2. Wills —Proceedings for Probate— Scope — Rights of Murderer of Testator.
    The question whether a murderer can take under the will of his victim does not properly arise on an application for the probate of such will; hence the court is not justified in declining to hear the application until after the termination of the prosecution of the beneficiary.
    3. Same — Mandamus—Defenses.
    On mandamus by one named as beneficiary in a will to compel the probate court to proceed with the hearing of a petition for the probate thereof, an objection that testator did not own the property devised to relator, and therefore the latter has no interest in the proceeding, is not available to respondent; that question not being determinable on an application for the probate of a will.

      Mandamusbj Elvina C. Bliss to compel Seth W. Knight, probate judge of Macomb county, to proceed with the hearing of a petition for the probate of a will.
    Submitted November 12, 1901.
    Writ granted December 21, 1901.

      Silas B. Spier and William T. Hosner, for relator.

      C. C. Thorington, for respondent.

       This case was heard in the Supreme Court on original application, contrary to the usual practice, for the reason that the circuit judge was disqualified to act.

   Hooker, J.

The will of Charles Bliss being offered for probate by the relator, his widow, a hearing was had and proofs taken. The respondent returns that after hearing arguments on the 9th day of October, 1901, he adjourned the further hearing until October 14, 1901, when he made the following order:

“In this matter, the hearing on the petition for the probate of the paper writing purporting to be the last will and testament of said deceased having come on for hearing after due and legal notice to all parties interested, and it appearing from the proofs in said cause that the said instrument was properly executed by said Charles Bliss at the time the same bears date, and that said Charles Bliss was, at the time of the execution thereof, competent to execute the same, and was under no undue influence; and it further appearing from said proofs that Homer Bliss, the beneficiary named in said will, is now informed against and awaiting trial in the Macomb county circuit court on the charge of murdering his father, the said Charles Bliss, deceased, and that the trial of the said Homer Bliss on the charge aforesaid has been adjourned by said circuit court to the December term thereof; and it further appearing from the files and records of said cause that the executor named in said proposed will has filed therein a written declination to act as such executor; and it further appearing from the proofs introduced in said cause that all'the property owned by Charles Bliss, deceased, at the time of his death, would, if such proposed will was admitted to probate, pass thereunder to said Homer Bliss; and the said proponent of said proposed will now moves said court to admit the same to probate; and against the objections of said proponent I hereby deny said motion, and of my own motion order that the further hearing of this cause be held open to await the trial of said Homer Bliss on said charge of murdering hissaid father. If the" juryon said trial shall not convict-said Homer Bliss on said information of murder in the first degree, I shall then admit said will to probate. If the jury on such trial shall convict said Homer Bliss upon said information of murder in the first degree, I shall deny said proposed will to probate upon proof of such conviction, as I am of the opinion that, if said Homer Bliss is convicted upon such information of murder in the first degree, that such will would, for that reason alone, be void, and not entitled to probate.
“Seth W. Knight,
“Judge of Probate.”

The widow asks a mandamus to compel the probate court to proceed and dispose of the case by admitting the will to probate.

We understand that both parties are anxious to have the main legal question decided, — i. e., whether the murderer of a testator is entitled to take property under the will,— and both seem to assume that this is a proper method of obtaining an adjudication of the question by the court of last resort in this instance. The Supreme. Court is distinctly an appellate court, and ordinarily cannot dispose of controversies between litigants except upon appeal, after a deliberate trial of the controversy by the courts having jurisdiction for that purpose. In the present case, if the law is as respondent claims, — i. e., that a murderer cannot take property under the will of his victim, — it is not a^ question that properly arises upon the proceedings to probate the will; nor are we prepared to say, on this hearing, that an acquittal of the person on a charge of murder is necessarily conclusive of the question in a particular case, though perhaps a conviction might be so. There is no reason shown why the probate judge should not proceed with the hearing, and dispose of the questions before him. We infer from what is said in one of the briefs that the order may have been made for the purpose of enabling counsel to obtain an authoritative decision of this question by a short cut. If so, we cannot approve the practice. It is not proper for trial courts, either by action or refusal to act, to impose upon this court the necessity of settling questions in anticipation of a trial. While it may be convenient for parties, such is not the primary object of this tribunal. As the probate court cannot properly consider this question on the proceedings to probate a will, we cannot properly pass upon it in this proceeding.

It is said that the relator has no interest in the property disposed of by the will, and therefore is not entitled to the writ prayed. In this, we think, counsel overlooks the fact that the probate court cannot, in a proceeding to probate a will, enter upon an inquiry of- this kind. On its-face the will purports to devise real estate. The proceedings to probate the will cannot be interrupted to determine in another forum whether the testator had title or not, and manifestly the probate court could not determine the question authoritatively, for not only is it not given such jurisdiction, but it may not have the proper parties before it.

The writ will issue requiring the respondent to proceed with all reasonable diligence to hear and determine the questions before him.

The other Justices concurred.


text:
    WATERS v. REED.
    1. Wills — Undue Influence — Instructions.
    An instruction on a will contest that a devise of the bulk of testator’s property to a woman sustaining illicit relations with him is a strong circumstance tending to show undue influence is not erroneous, taken in connection with the further instruction that such circumstance is not of itself sufficient to invalidate the will. f
    2. Same.
    An instruction that the evidence as to testator’s mental and physical condition is to be considered “solely with a view to determining whether an evil-disposed person could have obtained” an undue influence over him is not open to the objection that it authorizes a finding of undue influence on mere presumption, where the jury are further explicitly instructed that Jthere must be affirmative proof that such influence was in fact exerted.
    3. Same — Sufficiency of Evidence.
    At the immediate time of the execution of a will, there was no attempt to influence the testator; but he was old, debilitated, and mentally weakened, and was living in illicit relations with a woman who had caused an estrangement between himself and wife, and who, with her infant child, of which testator was the putative father, was the chief beneficiary under the will. The woman was 30 years of age, and strong physically, and had abundant opportunity to exercise undue influence if so disposed; and there was evidence of her having spoken to testator disparagingly concerning his son, saying that he would not care for testator, and that she was the only one who would. Held, that the question of undue influence was properly submitted to the jury.
    Error to St. Clair; Tucker, J., presiding.
    Submitted November 14, 1901.
    Decided December 21, 1901.
    Hannah Waters presented for probate the last will and testament of Peter W. Reed, deceased. The will was allowed in the probate court, and Robert Reed and Annié Smith, heirs at law of said deceased, appealed to the circuit. From a judgment for contestants, proponent brings error.
    Affirmed.

      John B. Mcllwain and Frank Whipple (Lincoln Avery and C. A. Kent, of counsel), for appellant.

      George G. Moore, Herman W. Stevens, and John L. Black, for appellees.
   Montgomery, C. J.

This is error to review the proceedings of the circuit court, where, on appeal from the probate court, the will of Dr. Peter W. Reed, deceased, was refused probate. The formal execution of the will was admitted, but its probate was contested upon the two grounds of mental incompetency and undue influence.

The testimony showed that Dr. Reed was, at the time of the execution of the will, which was shortly before his death, about 70 years of age. He had been twice married. His first marriage was in 1849, and, by his first wife, he had three children, one of whom (Robert) is living. The daughter of another son was living at the time of Dr. Reed’s death. In 1868 Dr. Reed was divorced from his first wife, Ann, and, during the same year, married his second wife, Caroline. There was no issue of this marriage. The children stayed with the mother, and in a subsequent litigation, in which Ann Reed sought to compel Dr. Reed to support her, Robert was a witness for the mother. There was testimony tending to show, how-ever, that whenever Robert visited Port Huron, Dr. Reed’s home, he visited his father, and there was some testimony that the doctor spoke in high terms of his son, and expressed a purpose to leave some portion of his property to him. Robert Reed’s visits to Port Huron were, however, very rare, and but little intercourse had taken place between the father and son for 20 years. The granddaughter lived at Port Huron, and appears to have had but one interview with Dr. Reed, which was one of her own seeking.

Dr. Reed had had a large practice for many years, and had accumulated a considerable property. For some years before his death he had been suffering from partial paralysis, and there was testimony in the case tending to show that, as the result of disease and the infirmities of age, his mental capacity was greatly weakened. In the year 1896, and from that time on, Dr. Reed maintained illicit relations with Hannah Waters, the proponent of the will. Hannah Waters gave birth, in 1897, to a child, who is one of the beneficiaries named in the will. The illicit relations between these parties resulted in a divorce between Dr. Reed and his second wife, and, finally, the Waters woman took up her residence in the Reed house, and remained there with Dr. Reed, day and night, up to the time of his death. For a period of seven weeks Miss Waters was alone in the house with Dr. Reed. During one week a domestic was employed. The will, after some bequests to Dr. Reed’s brothers, gave the balance of the estate to Hannah Waters, in trust for the child, supposed to be the child of Dr. Reed and Hannah Waters, with reversion, in case of the child’s death before reaching the age of" 21 years, to Hannah Waters.

This is but a very brief statement of the facts, but, perhaps, sufficient as an outline of the case. At the conclusion of the testimony, the circuit judge, in a charge evidently prepared with great care, withdrew from the consideration of the jury the question of mental incompetency, but submitted to the jury the question of undue influence.

It may be well to deal first with the special objections to the charge. In the course of his charge the circuit judge instructed the jury as follows:

4 41 instruct you that, where a man devises the bulk of his property to one who stands in the relation to him admittedly occupied by Hannah Waters in this case, such devise is always carefully examined, and that it is a strong circumstance tending to show undue influence. ”

Counsel for proponent say this is the rule only where there is some proof of undue influence. The circuit judge, in another portion of his charge, made clear that rule, for he instructed the jury as follows:

“As I have said, the giving of the great bulk of his property to Hannah Waters and the child, Priscilla Marie, after having associated with Hannah Waters in the unlawful intimacy hereinbefore spoken of, and under the circumstances admitted in this case, is a strong circumstance, to be táken into consideration with the other facts and circumstances in the case, as indicating the probability of the exercising of the power of undue influence over- the doctor. You are, however, instructed that these facts and circumstances, standing alone, — that is, the fact of the disinheriting of his children and the giving of his property to Hannah Waters and her child, — would not, of themselves and alone, be sufficient to warrant the setting' aside of this will. It is also said that Hannah Waters had the opportunity for the exercise of such influence as she may have had with the doctor, if she desired to use it. You are instructed, upon that point, that opportunity alone will not suffice to prove the exercise of undue influence.”

This instruction could not have left the jury in doubt as to the rule, and we think it correctly states the law. See 1 Underh. Wills, § 150. The question of whether there was any proof justifying the submission of this question of undue influence to the jury will be treated of in another connection.

Another extract from the charge of the court is criticised, which is given as follows:

“You are to consider the evidence relating to Dr. Reed’s mental and physical condition solely with a view to determining whether or not you believe it possible or likely that an evil-disposed person could have obtained sufficient control or influence over the doctor to have subordinated his will to others.”

It is urged that this was, in effect, telling the jury that the testamentary act was the result of undue influence if possible or likely that Hannah Waters could have obtained sufficient control over his will to destroy free agency; and it is said, “This would allow the most sacred rights to be set aside on presumption. ”

But this brief extract from the charge by no means fairly represents the instructions. In another portion of the charge the court instructed the jury as follows:

“ To admit the establishment of the fact of undue influence, there must not only be opportunity therefor, and a person willing to avail herself of that opportunity, but a mind sufficiently weakened by age, disease, sexual indulgence, or other cause, sufficiently shown, to be under the control of and dominated by the person seeking to exercise such undue influence, to warrant the assumption that it may have occurred. In other words, in this case, to warrant the finding that Hannah Waters exercised undue influence over Dr. Reed, you must find, by the fair preponderance of evidence, not only that an unlawful sexual intercourse had existed between them, not only that she had opportunity for the exercise of such influence, if she desired, but that the doctor’s will power had become sufficiently weakened by age, disease, sexual excesses, or other causes, to permit of the probability of such influence being exercised to the extent of subordinating his will to hers. You must, as I have said to you, not only find these facts to exist, by a fair preponderance of the evidence, but you must find, in addition to all that, and by a fair preponderance of evidence, that Hannah Waters took advantage of these circumstances, and did, as a matter of fact, exert undue influence upon the doctor, — that is, that she fraudulently coerced the doctor, and so overcame his free will as to cause him to make a different will than be would have made if it had not been for such influence. ”

There was no possible room for mistake as to the effect of these instructions. Emphasis was placed upon the necessity of affirmative proof of the fact of undue influence.

The principal question urged in the case, and pressed upon our attention with great vigor by proponent, is that of whether there was any evidence tending to show the exercise of undue influence which justified the submission of the case to the jury. It is undoubtedly true that the testimony relating to the exact time of the execution of this instrument strongly supports the proponent’s case. The testimony of Judge Whipple, who drew the will, and of the witnesses who attested it, clearly demonstrates that, at the precise time of the execution of the will, no immediate, present influence was being exerted to control the mind and will of Dr. Reed. But this is not decisive of the case. If an unwarranted influence had been exerted theretofore, the effect of which still remained, and which was sufficient in fact to subordinate the will of Dr. Reed to that of Hannah Waters, this influence was undue, as much as though it were exerted at the very time that the will was executed. See Potter's Appeal, 53 Mich. 106 (18 N. W. 575). Indeed, it is recognized by the authorities that undue influence is usually exercised secretly, and in a clandestine manner; and, as was said by Mr. Justice Grant in Rivard v. Rivard, 109 Mich. 111 (66 N. W. 686, 63 Am. St. Rep. 570):

“It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.”

See, also, 1 Underh. Wills, § 132.

In this case an examination of the record satisfies us that there was some testimony tending to show the exercise of undue influence by Hannah Waters. We cannot ignore, in dealing with this question, the debilitated condition of Dr. Reed, his mental weakness, his sacrifice of all the dearest relations of life, and his yielding to an infatuation for this woman. Hannah Waters was, at the time, 30 years of age, apparently a woman strong physically, and we cannot read this record without reaching the conclusion that she had a wonderful influence over Dr. Reed. There was testimony tending to show statements depreciating the character of Dr. Reed’s son, Robert, and a declaration that Dr. Reed’s son would not assist him in extremity, but that she, Hannah Waters, was the only one who would care for him. There was testimony of constant opportunity to exercise this influence, and enough from which just inferences might be drawn by the jury that such influence was exerted. We feel that the court was amply justified in submitting this question to the jury.

Numerous other questions are raised and discussed in the briefs of counsel, which have had attention, but none of which, we think, show error justifying a reversal of the case. The charge of the court was exceptionally full and clear, and a careful reading of it satisfies us that every right of the proponent was carefully guarded.

The judgment will be affirmed.

The other Justices concurred.


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    BOYDAN v. HABERSTUMPF.
    1. Appeal — Assignments op Error.
    The practice of needlessly multiplying assignments of error is condemned.
    2. Intoxicating Liquors — Illegal Sales —Action by Wife — Evidence.
    In an action to recover damages for the illegal sale of liquor to plaintiff’s husband, it was error to permit plaintiff to testify that she had a three-year-old child.
    3. Same — Argument of Counsel — Instructions—Curing Error.
    Where not only was such testimony admitted, but counsel dwelt upon the fact in his argument, the subject of his remarks being present in the court-room, the error was not cured by striking out the testimony, and instructing the jury to disregard it, as well as the argument based thereon.
    4. Same — Settlement—Duress—Evidence.
    Where, in an action for the illegal sale of liquor to plaintiff’s husband, defendant proved a settlement of plaintiff’s claim, evidence that third persons told plaintiff that defendant had threatened to have her arrested as a common prostitute unless she should make the settlement was inadmissible to prove duress, without proof that defendant authorized or ratified such statements.
    5. Same — Exemplary Damages — Instructions.
    Although the statute giving a civil remedy against saloon keepers for illegal sales of liquor authorizes a recovery of exemplary damages, such damages are given in any case only on the theory that the injury to plaintiff’s feelings has been aggravated because of the wanton or reckless charácter of defendant’s act; and it is error to instruct the jury that they may be awarded as “smart money,” or “in the way of punishment, to make an example for the public good.”
    Error to Ionia; Davis, J.
    Submitted November 14, 1901.
    Decided December 21, 1901.
    Case by Minnie Boydan against John Haberstumpf, a saloon keeper, and Frank E. Schmoltz and Stephen M. Bayard, his bondsmen, for the illegal sale of liquor to plaintiff’s husband. From a judgment for plaintiff, defendants bring error.
    Reversed.

      V. H. & H. H. Smith, for appellants.

      John Nichol ( George E. Nichols, of counsel), for appellee.
   Montgomery, C. J.

This is an action against a saloon keeper and his bondsmen to recover damages for illegal sales to the plaintiff’s husband. The record contains 109 assignments of error, which, it is safe to say, is at least 100 more than raise any doubtful questions. Undoubtedly, counsel have a legal right to indulge in as many assignments of error as they choose; but, when error is assigned upon every ruling of the court in the progress of a trial, it imposes upon the appellate court the burden of practically retrying the entire case, reviewing every ruling upon the admission of testimony, and every argument of counsel or statement of the court during the trial. Such practice is not to be commended. A careful examination of the case before assigning error, we think, would have satisfied the counsel for the defendants that the circuit judge was not always wrong, We conceive it to be the duty of counsel to sift out the chaff from the grain to some extent, and not to impose that duty upon this court.

There is error in the case, and it must be reversed. The plaintiff, while a witness on the stand, was permitted to testify that she had a young child, some three years old, which child was in the court-room at the time, and remained during the trial; and counsel, in arguing to the jury, dwelt upon this fact. This was error, within the ruling of this court in Larzelere v. Kirchgessner, 73 Mich. 276 (41 N. W. 488). It is true, the court, later on, struck out this testimony, and attempted to cure the error in its admission by his charge. But we are not satisfied that the error was without prejudice.

The defense offered in evidence a receipt, and testimony showing thát the plaintiff was paid $10 to compromise her claim, against the defendant. This was a complete defense, unless the plaintiff was able to show some duress or fraud in effecting the settlement. The circuit judge charged the jury, in substance, that this settlement was binding unless the plaintiff had overcome the presumption of its validity by showing fraud or duress. Among the testimony offered to show duress was that of the plaintiff, to the effect that three different parties came to her and told her that defendant had threatened to have her arrested as a common prostitute unless she should discharge her claim against him. This testimony was clearly incompe* tent, unless some previous authority from defendant was shown, or unless there was a subsequent ratification of the acts of these parties, and a taking advantage of them, by the defendant. We are not able, upon this record, to see that there was such proof. The learned counsel for the plaintiff dismiss this important question without argument, simply saying it is unworthy of reply. We have not realized large advantage from this method of discussion, and, if there be anything in the record which justified the introduction of this testimony, and it has escaped our notice, counsel have themselves to blame.

But one other question requires notice. The circuit judge, after correctly stating that exemplary damages “are given where the act is of so wanton and willful a character, or where it brings such shame upon the party, as to have the effect of exciting his or her feelings more than an act committed under less willful circumstances,” added:

“ ‘Exemplary damages ’ mean damages given by way of punishment for the commission of a wrong willfully or wantonly done, and done with some element of aggravation. They are not the extent of the injury actually received, but are given as smart money, in the way of pecuniary punishment, to make an example for the public good, and to teach other persons not to offend in like manner.”

The statute expressly authorizes exemplary damages in this class of cases. But “exemplary damages,” as the term has been employed in this State, has generally been understood to mean an increased award of damages in view of the supposed aggravation of the injury to the feelings by the wanton or reckless act of the defendant. As was said in Ford v. Cheever, 105 Mich. 685 (63 N. W. 976):

“It has never been the policy of the court to permit juries to award captiously any sum which may appear just to them, by way of punishment to the offender, but, rather, to award a sum in addition to the actual proven damages, as what, in their judgment, constitutes a just measure of compensation for injury to feelings, in view of the circumstances of each particular case.”

We think it should not be permitted that a jury be given leave to award damages as “smart money,” or “in the way of punishment, to make an example for the public good.”

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


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    HILL v. FARMERS’ MUTUAL FIRE-INSURANCE COMPANY OF MANISTEE, BENZIE & MASON COUNTIES.
    1. Mutual Insurance — Nonpayment of Assessments — Forfeiture.
    The charter of a mutual fire-insurance company provided that i no policy should be binding until actual payment of the premium, and, also, that, in case-of the failure of a member to pay an assessment within 30 days after notice, his insurance should be suspended, and he should thenceforth have no claim against the company for losses sustained until his assessment should be paid. Held, that the default of a member-operated to suspend his policy, which could'not be reinstated by a tender of the assessment, after a loss, so as to render the company liable therefor; and this though the charter gave the company the right to sue for delinquent assessments.
    2. Same — Waiver.
    Where a policy in a mutual fire-insurance company became suspended for nonpayment of an assessment, after which the insured sustained a loss, the subsequent receipt of the delinquent assessment by the treasurer of the company did not constitute a waiver of the forfeiture; the assessment being seasonably returned, with notice that the insured had ceased to be a member of the company.
    3. Same.
    Where the charter of a mutual fire-insurance company provided that policies should lapse for nonpayment of assessments, the silence of the company for nearly a year after a member became in default did not operate as a waiver thereof, though the company was authorized by the charter to sue for delinquent assessments.
    Error to Benzie; Chittenden, J.
    Submitted November 15, 1901.
    Decided December 21, 1901.

      Assumpsit by Russell C. Hill against the Farmers’ Mutual Fire-Insurance Company of Manistee, Benzie & Mason Counties on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Defendant is a mutual fire-insurance company. The plaintiff became a member of it in 1890, and had a policy issued to him at that time upon his house, household goods, barn and contents, and live stock. He made a written application, in which he stated that the stovepipes were in good order, and he would keep them so. Two of the bylaws are:
    “ 1. This company will not insure dwelling houses that are without suitable chimneys, and safes for stovepipes passing through ceilings and partitions.
    “2 No insurance shall be considered as binding until the payment of the premium. A promissory note given for such premium shall be deemed the payment of the premium; but, in case such note shall not be paid at maturity, then this policy shall have no force or effect so long as the same shall remain unpaid. ”
    Four years later that policy was surrendered, and a new policy (the one now in suit) was issued. No new application was made. The new policy was the same number as the application. The only change made was an increase in the amount of the insurance.
    The property was wholly destroyed by fire on Saturday, August 5, 1899. The buildings were then in the same condition as when the policies were issued. An assessment was duly made in August, 1898, and notice thereof was duly served on plaintiff September 1st, which he did not pay until Wednesday following the fire, when he paid it to the treasurer. The treasurer soon after, and seasonably, returned it, claiming that plaintiff’s policy was not in force. At the time of this claimed payment no notice of the loss had been given to the company, and no legal communication had been made to any of the officers of either the character, extent, or nature of the loss sustained by plaintiff. Defendant’s board of directors met the Monday after the fire. The treasurer was present. They had learned of the fire, but did not know the extent of the loss. The liability of defendant was discussed, and the directors concluded that it was not liable. Liability being denied, plaintiff brought suit.

      Those parts of defendant’s charter affecting the questions presented are:
    “When such assessment shall have been completed according to section 18 of this charter, the secretary shall prepare a written or printed circular, a copy of which he shall direct to each member of this company, to his or her last known post-office address, setting forth to such member the amount of such member’s assessment; and each member shall pay his or her assessment to the president or his receiver within thirty days after the issuing of said notice, and, in default thereof, his or her insurance shall be suspended, and shall thenceforth have no claim against said company for losses sustained until his or her assessment is paid.”
    “ If any member of said company shall neglect or refuse for the space of thirty days after the date of such circular, as provided for in section 19, to pay any assessment therein made, the secretary may proceed forthwith to collect the same by due process of law, adding 25 per centum to the amount of said assessment of each of said delinquents, and such delinquent shall be liable for all demands due from him or her to said company; and no insurance policy shall be binding until the actual payment of premium.”'
    The court directed a verdict for plaintiff.

      Fitch & Seek, for appellant.

      D. Cf. F. Warner, for appellee.
   Grant, J.

(after stating the facts).' 1. The court held that there was no forfeiture, that plaintiff was a perpetual member of the company, and that the provisions of the charter and by-laws in regard to suspension simply mean “that during the time that members of this company are in arrears they can collect no loss, but as soon as they are paid up they can collect for any and all losses that may occur either before or after the time, — that is, if there is nothing due to “the company.” We think that the court did not construe these provisions of the charter correctly. Courts cannot make contracts; they can only construe them. Plaintiff and defendant made a contract of insurance, and both parties must abide by it. In the contract it was agreed that “no insurance shall be considered as binding until the payment of the premium” (section 2 of by-laws); that, in default of the payment of assessments as provided, the insurance shall be suspended, and that the insured shall have no claim for losses until his assessment is paid (section 19 of charter); and that no insurance policy shall be binding until the actual payment of premium (section 20 of charter). Under these provisions, as interpreted by the court below, the insured may let his premiums or assessments run until a fire has occurred, then pay them, and recover his loss. “Assessments ” and ‘ ‘ premiums ” are interchangeable words, and mean the same thing. They are the consideration for the contracts. In stock companies an annual premium is required. In these mutual companies the premiums consist of the assessments made from time to time to pay losses and expenses. Each member of the defendant company contracted to pay these premiums within 30 days after notice, and that his failure to so pay should operate as a suspension of his policy, rendering it void so long as he chose to let the premiums remain unpaid. • It does not affect the question that defendant might sue delinquent members to recover the premiums. If the defendant had promptly canceled the policy for nonpayment, it could have sued plaintiff to recover the premiums, because it had already earned them, and plaintiff had already had the benefit of them. In the absence of a waiver of payment, the defendant is not liable for losses incurred while the insured is in default, as was plaintiff in this case. Williams v. Insurance Co., 19 Mich. 451 (2 Am. Rep. 95). It was the duty of the plaintiff to pay. He agreed that his policy and all rights under it should be suspended while he was in default. Under the ruling of the court, this right of suspension is valueless to the company, because any insured would pay his back premiums after a loss if by so doing he could reinstate his insurance and collect his loss. This is not a reasonable construction of this contract of insurance.

2. The payment of the premium to the treasurer and its receipt by him did not constitute a waiver. Neither did defendant’s silence for a year constitute a waiver, or operate to keep the policy alive. The payment was promptly returned, and nonliability asserted, as soon as knowledge of the facts came to the directors and officers of the defendant. Defendant was guilty of no laches. Plaintiff was the party to move by paying his premium or obtaining an extension of time. Plaintiff relies upon Elmondorph v. Insurance Co., 91 Mich. 36 (51 N. W. 926); Towle v. Insurance Co., 91 Mich. 219 (51 N. W. 987). In those cases the companies had said or done things inconsistent with the idea that the policy was forfeited. In this case there is nothing but silence. Defendant had a right to keep silent, and to believe that plaintiff knew what his contract was, and that he chose to suspend it by nonpayment. *

Reversed, and no new trial ordered.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.


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    HUGHES v. LOVE.
    Appeal — Accounting—Review.
    A decree on a partnership accounting was affirmed on a review of the evidence.
    Appeal from Mecosta; Palmer, J.
    Submitted November 15, 1901.
    Decided December 21, 1901.
    Bill by Fred W. Hughes against William Love for a partnership accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      Crane, Norris & Drew, for complainant.

      B. A. & W. E. Hawley, for defendant.
   Hooker, J.

A bill was filed for a .partnership accounting. The defendant denied the existence of the partnership, and claimed that the complainant had no interest in the property and business alleged in the bill. It was further claimed on his behalf that complainant should be equitably estopped from claiming anything as due him by reason of an adjustment of their dealings, which defendant had^a right to suppose included this claim. The learned circuit judge, who heard the testimony, accepted the complainant’s version of the transaction, and made a decree in conformity to the prayer of the bill, referring the case to a commissioner to state an account, with directions. The defendant has appealed.

A review of the evidence has convinced us of the justice of the conclusions of the trial judge. The case involves no legal questions requiring discussion, and it is therefore unnecessary to state the facts. As to the alleged estoppel, we think it not made out by the proof.

The decree is affirmed, with costs, and the cause remanded for further proceedings.

The other Justices concurred.


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    DECKER v. KANOUS’ ESTATE.
    1. Estates oe Decedents — Claims—Services op Daughter — Implied Contract.
    While an express contract is not indispensable to the right of a daughter to recover against her mother’s estate for services rendered in caring for the mother in her lifetime, there must at least he sufficient evidence of an implied contract to overcome the presumption of gratuitous service arising from the filial relationship.

      2. Same — Sufficiency of Evidence.
    Hence, where, in a proceeding to enforce such a claim, the statements of decedent, relied on ns indicating an intention to compensate claimant, were equally consistent with the theory that a mere bounty was contemplated, and there was nothing to show that the services were rendered by claimant with the expectation that they would be paid for, it was error to permit a recovery.
    Error to Genesee; Wisner, J.
    Submitted November 15, 1901.
    Decided December 21, 1901.
    Caroline Smith (now Caroline Decker) presented a claim against the estate of Olive Kanous, deceased, for services rendered. The claim was allowed in the probate court, and Jonathan T. Kanous, administrator of the estate, appealed to the circuit. From a judgment for claimant, ■defendant brings error.
    Reversed.

      Brown & Farley, for appellant.

      JR. C. Johnson and George JR. Gold, for appellee.
   Montgomery, C. J.

The claimant, on appeal from an allowance by the probate court, recovered a judgment against the estate of $416 for services rendered in the care of the deceased in her lifetime. The claimant is the daughter of the deceased, and the evidence shows that- she and her mother had lived together for many years in the homestead; that, some time before the decease of Olive Kanous, she gave the claimant a life lease of the 15 acres of ground upon which the house stood; and that, some 5 years before her decease, a guardian was appointed over the estate of Olive Kanous. The family relations continued the same.

There is no evidence of any express contract on the part of the deceased to pay for the care and services claimed to have been rendered. On the contrary, it is undisputed that claimant has stated that there was no such express •contract; and much of the undisputed testimony goes further, and tends to show that there never was any understanding that claimant should be paid for her services. But. in our view, the strength of the appellant’s case rests in the fact that there is no sufficient testimony to show that the minds of the parties ever met upon any contract, express or implied. There is testimony from a number of witnesses to the effect that Olive Kanous stated during her last sickness, and after a large portion of these services had been rendered, that Caroline should have her pay for staying with her. There was testimony tending to show that the purpose of giving this life lease was to compensate Caroline for her services, and that the deceased stated that, she had supposed that the life lease was a warranty deed, giving to Caroline the right to dispose of the property. But a careful examination of the record indicates that all that was said by deceased was entirely consistent with the idea that the compensation was to be a compensation for kindness shown by Caroline in remaining at home, and such a special bounty as a parent is at times moved to confer upon one of the children to the exclusion of the others. There is nothing in the record which shows that Caroline at any time expected that she was to be compensated for her services at the time the services were performed. It is true, one witness undertakes to say that Caroline was in the room at one time when deceased stated that Caroline was very good to her and took good care of her, and that she ought to have her pay, and that there was enough to pay her, and that she should have her pay. But the cross-examination of this witness demonstrates that she did not understand at the time that Caroline heard the conversation, and the record is barren of any testimony that she did.

There is nothing, therefore, to show that the services were rendered with the expectation of receiving compensation for them on the part of Caroline; and the testimony as to the expectation of deceased is quite as consistent with the theory that what she expected to bestow upon Caroline was a special bounty, as that it was compensation, as such, for services employed. We have had frequent occasion to deal with cases of this kind, and it has often been said that it is the duty of courts to protect decedents’ estates from claims of the character of this; and, while the rule in this State does not require that there ■shall be an express contract in terms, it does require that there shall be at least an implied contract,, and that there shall be enough in the record to overcome the presumption arising from the family relation. See Mason v. Dunbar, 43 Mich. 407 (5 N. W. 432, 38 Am. Rep. 201); Wright v. Senn's Estate, 85 Mich. 197 (48 N. W. 545); Boughton v. Boughton's Estate, 111 Mich. 26 (69 N. W. 94); Harris v. Harris, 106 Mich. 246 (64 N. W. 15); Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671); Van Slambrook v. Little’s Estate, 127 Mich. 61 (86 N. W. 402).

The circuit judge appears to have relied upon the case of Sammon v. Wood, 107 Mich. 506 (65 N. W. 529). The authority of that case must be limited by the facts shown. It was said that it is not necessary to show that, at a given time before the rendition of the services, a formal contract was entered into, on the one part to work, and on the other to pay, and that “if the facts and circumstances attending the performance of the work and its acceptance are sufficient to rebut the presumption which obtains in such cases, and authorize the inference that both parties acted upon the understanding that the services were to be paid for, that would be equivalent to a promise to pay for such services.” This is undoubtedly a correct statement of the rule as applied to the facts in that case. In that case decedent had frequently stated to the claimant that he intended to leave the farm to her in consideration of her services; and it was said, “ It was entirely competent for him to agree that, if she should remain with him and look after his wants and those of her mother, she should have all his property. ” And it was stated that the only question in the case to be determined was, was such a promise made ? The answer was, the decedent did more than promise; he actually conveyed the farm, and in doing so he stated what the consideration was. The real case was upon an executed contract. The difference between that Case and the present is very marked. Here claimant is not shown to have rendered any services relying upon her mother’s promise to pay, nor is there evidence that she had knowledge of her intention to pay for the services. There is nothing from which a contract can be implied. There are-features of the case which are well calculated to enlist the sympathy of the court, but we feel constrained to hold that the claimant’s case was not made out by proof.

The judgment will be reversed, and no new trial ordered.

The other Justices concurred.