text:
    Jeremiah Ready v. Edmund R. Kearsley and others.

      Uses, Statute of. All English statutes in force in Michigan having been repealed in 1810, and no Statute of Uses passed in the State until the Revision of 1846, there was nothing between those periods to prevent the creation of any trust which would have been valid at the common law.

      Deed, ambiguity in. A deed to S. or his heirs is not void for ambiguity, but is a valid conveyance to S., if he be living, and to Ms heirs if he be dead.

      Detroit Land Board: Construction qf deed: Trusts. The Governor and Judges of Michigan, acting as a Land Board, having laid out the town of Detroit, gave a deed of lot 47 to S. This town plan was soon abandoned, and a new one made, upon which lot 47 became lot 49. S. went into possession of lot 47 new plan, and the Board deeded lot 49 to another person. By intermediate conveyance from S. describing lot 47, K. acquired the possession thereof before the discrepancy between the old and new plans had been discovered. The Land Board then, on application of K., gave a deed of lot 47 to US. or his legal heirs and representatives, but always in trust and for the use and benefit of the rightful owners of the premises hereinafter mentioned, claiming tlie same by virtue of the mesne conveyances from the original grantee, or otherwise howsoever, his, her or their heirs,'’ «fee. This deed was before the Revision of 1846. Held,
    1. That as this was the first conveyance of this lot 47 by the Land Board, the u original grantee” mentioned in it was S., to whom it was given.
    2. That this deed did not vest in S. any power of selection as to the beneficiaries under it, but the deed itself undertook to designate the persons entitled.
    3. That there was no uncertainty in the deed as to the cestuis que trust, but they were pointed out as the persons claiming the lot by mesne conveyances or otherwise from S. And as K. had become the equitable owner of the rights acquired by S. under his first deed, he was the “rightful owner” in the sense of this conveyance.
    4. That the naked trust created by this deed was executed and became a legal title in K. when the Statute of Uses in the Revision of 1846 took effect.

      Execution of power: Unauthorized conditions. As a general rule, if the donee of a power in undertaking to execute it, annexes unauthorized conditions, the conveyance will be valid and the conditions void. But if the grantee has only a naked legal right to a conveyance, coupled with no equity, and he sees fit to accept a conveyance charged with a trust in favor of the party who has become vested "with his equity, Chancery may compel him to execute the trust.

      Land Board, powers of. The Governor and Judges of Michigan Territory acting as a Land Board, and the Mayor, Recorder and Aldermen of the city of Detroit, their successors, wore vested by the Acts of Congress of 1806 and 1842 with both judicial and discretionary powers, for public reasons and public purposes; and so long as their acts are within the spirit of these statutes, they are entitled to liberal intendments in their support. Where therefore the Board grant a donation lot by conveyance in trust, which, under the circumstances of the particular case, will better accomplish the legislative intent than an absolute deed, such conveyance is not to be held void on the ground of want of authority in the Board to create trusts.
    The Land Board having authority to grant to each of a specified class of persons a donation lot, does not exhaust its powers until the grant has been made effectual. Where, therefore, the same lot was granted to two persons, and the second grantee had obtained and held the lot, the Board had power to convey another donation lot to the first grantee in lieu of the one thus lost.

      Conveyance by Land Board• The mere allotment of a piece of land by the Board as a donation lot, not followed by a conveyance, did not vest either a’legal or an equitable title in the person to whom it was allotted as against a subsequent grant by the Board. The deeds alone fixed the rights of beneficiaries.

      Practice on exceptions. On bill of exceptions a case is not open to review on the evidence; and an objection to a deed, that there was no proof of its delivery, or of the grantee being alive at its date, cannot be considered in the Supreme Court, where it does not appear from the record to have been taken on the trial below.

      Heard October 5th, 6th and 7th, 1865.

      Decided April 24th.

    Error to Wayne Circuit.
    This was an action of ejectment brought by the original plaintiff, Jonathan Eearsley, now deceased, against Jeremiah Ready. The names of the defendants in error were substituted as plaintiffs below, under the statute.

      On the 16th day of June, 1856, one James A. Girardin, who claimed an interest in the lot as one of the heirs of James Girardin, deceased, under a deed of the Mayor, Recorder and Aldermen, of May 27th, 1856, to said heirs, purchased of Daly the buildings on the lot, and received possession thereof from him; and the several sub-tenants in occupation of the buildings and lot, thereupon attorned to Girardin and took leases from him. Having in this manner obtained possession of the lot and building's thereon, Girardin thenceforward claimed to hold the same for himself and the other heirs of James Girardin, deceased, and adversely to Kearsley, and subsequently and before the commencement of this suit, leased the premises to the defendant, who was in possession, claiming to be Girardin’s tenant, at the commencement of this suit.
    Judgment was rendered for plaintiffs. All other facts necessary to a full understanding of the rulings of the Circuit Judge, and the points decided, are fully stated in the opinion.

      O. Try on, and ICnight & Jennison, for plaintiff in error.
    The legal title to the land in question was in the government of the Hnited States, acquired by conquest and treaty.
    The defendants in error claim that the deed of trust from the Mayor, Recorder and Aldermen of Detroit, to Charles 'Stewart, conveyed said title out of the Government. The plaintiff in error contends that that deed is void, and does not convey any title whatever; and that the legal title to said land remained in the Government up to the time when the said Mayor, Recorder and Aldermen executed the deed to the heirs of James Gii'ardin, deceased, and that the latter deed conveyed to said heirs the full legal title to and possession of said land.
    The Mayor, Recorder and Aldermen of Detroit had no power to execute such a deed as the one to Stewart. The act of Congress, approved April 21,1806, conferred upon the Governor and Judges of the Territory of Michigan power and authority to lay out a town, including the whole of the old tofvn of Detroit, and to hear, examine, and finally adjust all claims to lots therein, and give deeds for the same. — 6 U. S. Stat. at Large, 62.
    By the act of Congress, approved August 29, 1842 (5 U. S. Stat. at Large, 541), all the powers and obligations conferred upon said Governor and Judges were transferred to and vested in said Mayor, Recorder and Aldermen. No other or new powers relative to disposing of lands and executing deeds for the same were given them.
    The powers so conferred upon the Governor and Judges were specific and designated; and the same powers and obligations were so transferred to, and vested in said Mayor, Recorder and Aldermen. Neither said Governor and Judges, nor said Mayor, Recorder and Aldermen had the right to delegate those powers to any other person or persons, nor to confer any authority upon any one to act for them in executing said trusts, which were reposed in them and them only. They, as the attorneys and commissioners of the government, were required to hear, examine and finally adjust all claims to lots, and give a deed to each and every person entitled thereto, by the terms of said act. — 6 Mich. 189.
    The law that an attorney is bound strictly by the authority and power given him by his principal, is too well settled to need the citation of numerous authorities. On that point there is no conflict. It is fully considered in Sugden on Powers, Vol. 1, Ch. 5, sec. 1, p. 222, of the transfer of powers. Where a power which cannot be transferred is delegated, the delegation is simply void.—Sugd. 225; 2 Atk. 88; 15 Law L. 120.
    No trust of any description can be created for any purpose whatever, except such as is expressly authorized and defined.— 14 Wend. 376.
    The plaintiff in error further contends, that said deed is uncertain, as to the grantee, and is therefore void, in that it purports to convey to “ Charles Stewart, or his legal heirs or representatives.” If a grant be made to J. S. orW. S., in the disjunctive, and in such like cases, it is utterly void for uncer
      tainty.- — -Shep. Touch. Title, Grant, 237; Co. Litt. 3 a; 8 Johns. 385.

    The said deed is void for uncertainty as to the person or persons of the cestuis que trust. It is contended that the person for whose use a trust is created, must be as certainly described in the deed as the grantee; the same as if the deed conveyed the land directly to the cestui que trust.— 9 Johns. 74.
    In speaking- of a case decided in England, Willis, in his treatise on trust, says: “ So that by the great authority of this determination, on clear law and reason, the cestui que trust is actually and absolutely seized of the freehold.” — Willis on Trustees, 108; 10 Law L. 51.
    He that accepts a trust, by becoming an acting trustee, takes it for the benefit of the person for whom he is trusted, and not for any advantage to himself. So entirely does this maxim prevail, that if a trust be imposed, the trustee cannot take beneficially, although the trust be too indefinite for execution.—10 Law L. 57; 2 Br. C. C. 270; 1 Eden, 226; Cruise's Dig. 484, and cases referred to; 2 Vesey & Beam. 297.
    In this case, who is to decide who the rightful owners are ?
    The plaintiff in error further contends, that even if the said deed to Stewart, in trust, etc.,, is not void, it conveys no title whatever to Kearsley, or said defendants. The deed of said Stewart to Wyeth is for lot 47, by the old plan, and the land claimed to be conveyed to said Stewart, by said deed of trust, is for lot 47 by the new plan, and is a different piece of land. Besides, said deed from Stewart to Wyeth is a quit-claim, and therefore does not, by operation of law, convey any right to his grantee, of a subsequently acquired title, even if it had been the same land. — 9 cow. 13 ; 4 Wend. 300; 14 Johns. 193; 11 Id. 91.

      Douglass & Andrews, for defendants in error.
    The error into which all parties had doubtless been led by the action of the Governor and Judges in respect to the plan of the city was discovered in 1846, after the powers and duties of the Governor and Judges, as a Land Board, were transferred to the Common Council of Detroit. And in that year the Common Council executed the instrument known as the “trust deed;”
    What is the proper construction and effect of that “trust deed?”
    The recitals purport to explain its consideration, purpose and object. These recitals state the purpose and object to be, in general terms, to correct errors in the execution of their trusts as a Land Board by the Governor and Judges, and to do substantial justice.
    They then go on to state the facts, which show what particular error the conveyance was designed to correct, and what just claim it was intended to satisfy. The grant is to Stewart or his heirs, which must be construed to mean to Stewart, if living; if deceased, to his heirs. If the Land Board had known or could safely have assumed to decide that Stewart was living, and had never conveyed the title derived under the Governor'and Judges’ deed of 180?, the grant would have been to him and his heirs simply.
    The inaccurate and inartificial language of this declaration of trust creates the whole difficulty in the construction of the instrument. The conveyance is declared to be in trust for the use and benefit of the rightful owners of the premises hereinafter mentioned, (to wit, lot 4?, new plan,) “ claiming the same by virtue of mesne conveyance from the original grantee, or otherwise howsoever.”
    If this trust clause stood alone it might require correction by a bill in equity, but if, taking the whole instrument together, the intent clearly appears, that intent can be carried into effect by construction. — 7 Mich. 69.
    It is claimed that the deed is void, because in the alternative as to the grantee, “ to Charles Stewart or to his legal heirs or representatives.” Rightly construed it is to Charles Stewart, if living; if deceased, to his heirs, for he could have no heirs if living. “Representatives,” in this connection, is but a synonym, for hens. There is no uncertainty as to the grantee. Whether the grant is to Stewart or his heirs depends upon a fact which is certain and capable of ascertainment.
    It is claimed that the deed is void on account of uncertainty as to the cestui que trust. But, if Stewart or his heirs had conveyed lot 47, old plan, who were the legal owners of the title was certain and capable of ascertainment, though unknown to the Land Board. — 1 Barb. Ch. 1; 19 Vt. 613.
    Through the operation of the covenant of warranty in the deed from Wyeth to Iiearsley, the subsequent deed of Stewart to Wyeth enured to Kearsley’s benefit, and so would give him a perfect'title, even if the first informal deed of Stewart to Wyeth were void. — Rawle on Cov. 413; 2 Washb. on Real Pr. 473, 474.
    Objection was made to the admissibility of each of the deeds above mentioned, under which the plaintiffs below sought to derive title from Stewart, on the ground that their execution was not proved. But they were all over thirty years old and produced from the proper custody, and admissible in evidence as ancient deeds, without proof of their execution.— 1 Greenl. Ev. § 144.
    Objection was also made that these deeds were not properly executed or acknowledged, but no defects either of execution or acknowledgment were pointed out, and therefore no valid exception could be founded upon such objection. Moreover, we submit that they were executed, etc., in conformity with the laws then in force. — 6 Mich. 17; Rev. Laws of 1827, 258, 260; Sess. L. 1861, p. 16.
    It being conceded that the plaintiffs below were the heirs of Jonathan Kearsley, we submit that they proved themselves to be the legal owners of the title conveyed by the Governor and Judges to Stewart in 1807, deriving that title from Stewart, and therefore the beneficiaries or cestuis que trust in the trust deed of 1846 and by operation of the statute of uses and trusts, the legal owners of the lot thereby conveyed.
   Cooley J.

The defendants in error, as devisees of Jonathan Kearsley deceased, brought ejectment against Ready, to recover lot 47, in section 8, according to the Governor and Judges’ plan of the city of Detroit. On the trial they gave evidence tending to show that Ready went into possession as assignee of their lessee; and upon this they claimed that he was estopped from showing title in himself as against them. The Circuit Judge took the question on this branch of the case from the jury, by charging them that they need not consider it, inasmuch as the plaintiffs had established a complete title to the lot by other evidence, and the jury found for the plaintiffs accordingly. Exception was taken to this charge, and it-therefore becomes necessary to consider the evidence upon which it was based.

It appears that on February 11, 1807, the Governor and Judges of Michigan Territory, in pursuance of the act of Congress “ to provide for the adjustment of titles to land in the town of Detroit and Territory of Michigan, and for other purposes,” approved April 26, 1806, executed to Charles Stewart a deed of a lot in Detroit, described as lot 47 in section 8, as a donation lot to which he was entitled under said act. February 1, 1827, Stewart conveyed this lot to George Wyeth, who had previously given a warranty deed of it to Jonathan Kearsley.

It appears, however, that the Governor and Judges made two plans of the town of Detroit, the first of which was not put upon record, and the second was not formally adopted by them until April 27,1807. Lot 47 by the old plan became lot 49 by the new. Stewart and those claiming under him seem to have taken it for granted that their deeds covered lot 47 according to the new plan, and possession was taken of that lot by them. February 21, 1846, on discovery of the discrepancy between the two plats, the Mayor, Recorder and Aldermen of the City of Detroit, who, by virtue of an act of Congress, approved August 29,1842, had been vested with the powers formerly possessed by the Governor and Judges, as a Land Board, executed a deed upon which the principal questions in this case arise. This deed is so important and peculiar that it is here inserted at length:

The Mayor, Recorder and Aldermen of the City of Detroit: To all to whom these presents shall come:

Whereas, By the act of Congress of the United States, approved April 21, 1806, and entitled .‘An act to provide for the adjustment of titles to the land in the town of Detroit and Territory of Michigan, and for other purposes,’ the Governor and Judges of the then Territory of Michigan were constituted a Land Board, with power to lay out the town of Detroit, to finally adjust all claims to the lots therein, to grant donation lots to persons entitled thereto, and to sell the residue of the land for certain purposes therein mentioned;

And, whereas, By the act of Congress supplementary to the said act, approved August 29, 1842, the powers vested as a land board in said Governor and Judges, were transferred to the Mayor, Recorder and Aldermen of the City of Detroit;

And, whereas, The execution of said trust by said Governor and Judges has not been fully perfected, and errors have been found to exist in carrying out the same, and it is deemed necessary by the present board, for the quieting of the titles, and the purposes of substantial justice, to interpose their action in the premises in cases requiring it;

And, whereas, It appears that said Governor and Judges, on the 11th day of February, 1807, deeded to Charles Stewart lot forty-seven (47,) in section eight (8,) by the old plan of Detroit, which lot became lot forty-nine (49,) in section eight (8,) by thé new plan of Detroit; and the said Governor and Judges, on the 29th day of March, 1822, deeded to Thomas Rowland said lot forty-nine (49,) in section eight (8,) new plan, and that lot forty-seven (47,) section eight (8,) new plan, was located and occupied by said Stewart and his grantees, as the lot deeded to him, February 11th, 1807.

Therefore, Enow ye, that we, the said Mayor, Recorder and Aldermen of the City of Detroit, acting under the act of Congress aforesaid, of August 29th, 1842, in consideration of the premises, hereby remise, release and forever quit-claim unto the said Charles Stewart, or to his legal heirs and representatives, but always in trust and for the use and benefit of the rightful owners of the premises hereinafter mentioned, claiming the same by virtue of the mesne conveyances from the original grantee or otherwise howsoever, his, her, or their heirs and assigns forever, all the estate, right, title, interest, use, trust, property, claim and demand whatsoever, both at law and equity of us, the said Mayor, Recorder and Aldermen of the City of Detroit, of, in and to the following described premises, lying and being in the City of Detroit aforesaid, and designated and described as follows, to wit: Being lot forty-seven (47,) in section (8,) as the same is numbered in the recorded plan of the city of Detroit; to have and to hold said released premises as aforesaid, unto the said Charles Stewart, or to his legal heirs and representatives, but always in trust and to the use and benefit aforesaid, his or their heirs and assigns, to his or their own proper use and benefit forever.

In witness whereof, the said Mayor, Recorder and Aldermen of the City of Detroit have hereunto set their hands and affixed their seals, this twenty-first day of February, one thousand eight hundred and forty-six.”

The counsel for the defendant (below) objected to the admission of this deed in evidence, for several reasons, which I shall proceed to consider, though not in the precise order then presented.

First: That it was void under the Statute of Uses. This objection is abandoned in this Court; the date of the deed appearing to be before the Statute of Uses took effect. Prior to March 1,1847, when the revision of 1846 took effect, we had no statute of uses in this State, and as all English statutes were repealed in 1810 (Cass Code, 119), there was nothing at the date of this deed to prevent the creation of any trust which would have been valid at the common law.

Second: That it was void for uncertainty because in the alternative. The deed is to Stewart or his heirs; and it is supposed to fall under tbe condemnation of that rule of the common law, that a grant made to J. S. or W. S. in the disjunctive, is void for uncertainty. — Bac. Abr. Grant, C.; 2 Washb. Real Pr. 566. And see Morse v. Carpenter, 19 Vt. 615; Jackson v. Cory, 8 Johns. 385; Hornbeck v. Westbrook, 9 Id. 13.

It is evident, however, that the reason upon which the case instanced rests, does not apply to this deed. A grant to J. S. or W. S. is void from the manifest impossibility of determining which shall take, when the grantor has failed to express his' intent. But no such difficulty can arise in the case of a grant to J. S. or to his heirs. If J. S. is living, he has no heirs; and no two parties can claim adversely as grantees under the deed. The manifest intent here was to vest the title in Stewart, if living, and in Ms heirs or devisees, if he were then dead. Conveyances in this form by public officers or boards have not been uncommon, for the reason that such conveyances are usually made at a period subsequent to that when the right to the conveyance accrued; and it is not always known when the deed is made, that the party entitled is living. In Hunter v. Watson, 12 Cal. 363, it was held that a deed to a person not then living and his heirs, would be void; since the word “ heirs” was a word of limitation and not of purchase, and consequently there was no person to take under it. The validity of deeds with an alternative clause like the one before us was directly affirmed by the Supreme Court of the United States in Hogan v. Page, 2 Wallace, 605, and as this deed was executed under a power granted by the National Government, we should hold ourselves bound by the decisions of the national courts in passing upon its validity.

Third: That the deed is uncertain as to cestui que trust. As the plaintiff below claimed to have acquired title to the lot by virtue of the operation of the Statute of Uses upon this deed, it becomes necessary to consider whether there is any such ambiguity in designating the cestui que trust, as is supposed by the objection. This brings us to a careful consideration of the terms of the conveyance, that we may ascertain, if possible, its real intent.

It appears by the recitals that this deed was executed because, by mutual mistake, Stewart had taken possession of the wrong lot, and the one actually conveyed to him had been subsequently deeded by the Governor and Judges to Thomas Rowland. The deed in question was given to right the unintentional wrong-, “for the purposes of substantial justice.” Lot 47, of which Stewart had actually taken possession on the supposition that it was his own, still remained ungranted by the Land Board, and, “therefore,” “in consideration of the premises,” the board proceeds to convey to him, or to his legal heirs or representatives, “ but always in trust and for the use and benefit of the rightful owners of the premises hereinafter mentioned, claiming the same by virtue of the mesne conveyances from the original grantee, or otherwise howsoever, his, her, or their heirs and assigns forever, all,” &c., the said lot 47.

Let us now look at the position of the various parties when this deed was given, that we may ascertain, if ¡possible, who are the parties described.

1. As to the “ original grantee,” mentioned in the deed, we can be in no doubt. This'is the first deed given of this lot, and no other person answers this designation except the grantee or grantees here named.

2. The cestuis que trust are “ the rightful owners,” “ claiming the same by virtue of the mesne conveyances from the original grantee, or otherwise howsoever.” Kearsley, it appears, had been in possession of this lot, claiming the same by virtue of mesne conveyance from Stewart. The description contained in his deed was an exact description of this lot, and he only failed to acquire a title by it from the fact that the same description was not applicable to the same premises in February, 1807, when Stewart obtained his first deed. He was the “ rightful,” equitable “ owner” or assignee of all the rights which Stewart obtained under the first deed, and was the only-person for whose benefit this deed, according to its recitals, could have been properly made. Now it is perfectly manifest that the words “ rightful owners” are not used here in the ordinary technical sense; for to give them that meaning would, be repugnant to the whole instrument. There could be no rightful owner, in a legal sense, except the Government itself, if the Government had never before conveyed the title ; but the deed assumes that, notwithstanding the want of a conveyance to him, equitable rights- may have been acquired under Stewart or his legal representatives, which should be recognized and protected by any conveyance now made.

Nothing can be plainer than that, if there was no prior conveyance of the lot by the Land Board, the persons whom this deed was intended to benefit were those claiming under Stewart, “by mesne conveyances,” “ or otherwise howsoever.” Kearsley claimed this lot by mesne conveyance; and though his claim was ineffectual for the reason stated, his equitable rights were unquestionable, and included all the equities which were recognized by the recitals of this deed as its sole consideration. If, therefore, the question were between Stewart as trustee, and Kearsley claiming to be cestui que trust, a court of equity could have no difficulty in determining that the former took the conveyance in trust for the party who had become vested with all the equities which the conveyance recognizes and seeks to protect.

It does not become necessary to consider what would have been the effect of this deed had it appeared that there had been any prior conveyance, or attempt at conveyance, on the part of the Government, or that any other person had become vested with equities which attached to this lot. This deed may have been designed to protect the rights of such possible grantees, or equitable claimants; but until it is shown that some person is in position to contest the equitable rights of Kearsley, he is the only person who appears 'to answer the description of the cestui que trust in the deed.

If, .therefore, the deed in this case was valid, as the trust declared was a mere naked trust, and Kearsley, as cestui que trust, was entitled to the possession of the premises, and the receipt of the rents and profits, his equitable title became confirmed as a legal estate by virtue of the Statute of Uses of 1846. — Comp. L. § 2633; La Grange v. L'Amoureux, 1 Barb. Ch. 18.

Fourth: The deed is claimed not to have been within the powers conferred upon the Land Board. This objection, as made in the Court below, was vague and indefinite, but in this Court counsel specify objections as follows :

1. The Land Board had power to convey a donation lot to the person entitled, but not to convey to Stewart or any other person, entitling- him to adjudge who should receive the benefits. The answer to this objection is, that this conveyance does not purport to confer upon Stewart any power of selection or judgment with respect to the beneficiaries. The deed was designed to fix conclusively the rights of parties; and if any question should arise between adverse claimants as cestuis que trust, the courts, and not Stewart, would have power to determine it.

2. The Land Board, it is said, had no power to create trusts. This objection is based upon the principle that the donee of a power is required to follow his authority strictly in its execution. But if Stewart was entitled to a donation lot, the conveyance of one to him would be strictly within the power, and the only question that could arise would be as to the validity of the trust with which the conveyance was charged. The general rule is, that if the donee of a power, in undertaking to execute it, annexes unauthorized conditions, the conveyance will be valid and the conditions void. (2 Sug. on Powers, 76; Alexander v. Alexander, 2 Ves. Sen. 640; Sadler v. Pratt, 5 Sim. 632; 2 Washb. Real Pr. 328.) Stewart or those claiming under him are the only persons entitled to make this objection; but I think the circumstances of this case would preclude their making it.' If Stewart had a right to a conveyanee of this lot, as a donation lot, it was a naked legal right, coupled with no equity; and if he saw fit to accept a conveyance charged with a trust in favor of the party who had become vested with his equity, there can be no doubt, I think, that a Court of Chancery would have compelled him to execute the trust.

But I do not concede that the powers of the Land Board are to be construed with the same technical strictness as those of an ordinary attorney or donee of a power. The statutes under which they acted vested them with both judicial and discretionary powers, for public reasons and public purposes; and so long as their acts were within the spirit of the law, they are entitled to liberal intendments in their support. A conveyance which at the date of this deed would have vested an absolute title to this lot in Stewart, might have been strictly within the powers of the board, but it would not have tended to accomplish the beneficent and humane purposes of the statutes creating those powers. A conveyance having the effect which the one before us was designed to have, could alone accomplish those purposes; and we should therefore be defeating the legislative intent if we should follow the letter of the law so strictly as this objection demands.

3. The Land Board, it is further argued, exhausted their power to convey a donation lot to Stewart, when they made the conveyance of 1807. I have already said that the Land Board was vested with large discretionary powers for beneficent purposes. They were to convey to each one of a -class of persons, designated, a donation lot. By mistake one certain lot was conveyed to two persons; and it seems to have been assumed that Stewart, though the first grantee, had lost the lot. Stewart, therefore, had failed to receive the benefit which the statute designed for him. Now there can be no doubt that the Land Board had a right to convey two donation lots to Stewart and Howland. They had conveyed but one to both, and one of the two was entitled to another. If Stewart was not entitled to one, Rowland was. . But Rowland had already received a deed by which, whether legal or not, he had obtained the benefit of a donation lot, while Stewart, through mistake, had failed to receive any. A narrow and technical construction of powers would now give Rowland another lot, and deprive Stewart entirely of the intended gift. I do not think we are warranted in such a construction of the law; or in holding that the powers of the board were exhausted at any time before they had made the gift effectual to every person entitled.

I have now considered all the objections made in the Court below to this deed, and none of them seem to me sufficient. It was suggested in this Court that no evidence was given that the deed was ever delivered, or that Stewart was living at its date, or that, if dead, he had left heirs. But these objec tions were not taken in the Court below, and as the case is not here for review upon the evidence, we cannot consider them. Our power upon the exceptions is- exhausted when we have determined whether the Court erred in overruling the objections actually made.

I therefore think the evidence established a prima facie title in Kearsley, and it remains to be seen whether this case is rebutted by the evidence given on the part of the defendant.

The bill of exceptions states that the defendant gave evidence tending to show that the heirs of James Girardin deceased, under whom the defendant (below) claimed, became entitled to a deed of lot 45 in section 8 by the first plan of Detroit, which became lot 4Y in section 8 by the second plan. What this evidence was does not appear; but I infer from some recitals that something is found upon the records of the Governor and Judges indicating that when deeds came to be given of the donation lots, there was some setting apart of this parcel of land, by lot or in some other mode, as the one which should be conveyed to Girardin’s heirs. It was not conveyed by the Governor and Judges, however; and there is nothing in this record which informs us that Girardin’s heirs had ever applied for a conveyance prior to the second deed to Stewart. The inference from the testimony would he that the allotment was made prior to the new plan, and the first we hear of any claim by the heirs of Girardin is in 1856; half a century after the right, if any, accrued.

I need hardly say that no such allotment, not followed by conveyance, could give the heirs of Girardin a title to the lot. It did not even give them an equitable right which they could enforce, either against the Government Or its grantee. The allotment was at most only an expression on the part of the Land Board of their intention at that time to convey to the Girardin heirs this particular parcel; but if they had changed that intention the next day, and conveyed this lot to some one else, the remedy of the Girardin heirs would have been confined to a demand for another lot. Where lands were to be conveyed as donation lots, the adjudications of the board determined who were to be beneficiaries; but the deeds alone fixed the rights of the beneficiaries to particular parcels.

Moreover, the mere fact that a parcel had been allotted to a man in 1806, would be very unsatisfactory evidence, even as against the Government, that he was entitled to a conveyance of it in 1856, in the absence of showing that he had asserted his right to it before. Parties do not thus sleep upon their rights; and with some knowledge of the loose and accommodating manner in which business is done by such land boards, a strong presumption would arise that the party’s equities had been satisfied in some other mode than by the conveyance of the lot intended. Notwithstanding the allotment, exchanges might be made among the beneficiaries before deeds were given; and if one of the number did not appear to have received any deed, it would still be possible that the Land Board had conveyed to an assignee at his request. We are not required to determine what weight should be given to the presumption arising from lapse of time in this case; for the question is not one of equities, but of legal title; and it is plain that the heirs of Girardin got no title by force of the allotment alone.

It appears, hoivever, that the Mayor, Recorder and Aider-men of Detroit, sitting’ as a Land Board, on the 27th day of May, 1856, recognized the equity of the heirs of James Girardin to this lot; and executed a deed to give it effect. But if the previous deed to Stewart was valid, the one to the heirs of Girardin could convey no title. I am of opinion that the Stewart deed was effectual, and that under it Kearsley acquired title to the lot.

I therefore think the judgment of the Court below should be affirmed, with costs.

Martin Ch. J. and Christiancy J. concurred.

Campbell J. did not sit in this case.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    Baker Borden and another v. Peoria Marine and Fire Insurance Company.

      Statute of Limitations. Writ of Brroi'. The statute limiting the time for bringing a writ of error, commences to run from the rendition of the judgment. — Teller v. Willis, 12th Mich. 268.

      Submitted and Decided April 24th.

    Motion to dismiss writ of error, issued more than two years after judgment.

      Geo. JET. White, for the motion.

      Livermore & Wood, contra.
   By the Court:

When a writ of error is not brought until two years after the date of the judgment, and not within the statutory exceptions, it will be dismissed. — 2 Comp. L. § 5340.


author: Christiancy J. Martin Ch. J.

text:
    James Newsom v. Abraham Hart.

      Property — Summary proceeding. The power to divest another of his property hy a summary and ex parte proceeding, must be strictly pursued.

      Fstrays — Freeholders. Under sec. 1605 of the Compiled Laws, the right to take up estrays, is confined to the “resident freeholders of the township ” in which such estrays are found. It involves the exercise of a personal discretion, and cannot he delegated.

      Trespass by minor — effect of ratification by father. Where a minor son takes up an estray without the consent or knowledge of his father, he becomes a trespasser, and the subsequent ratification of such act by the father, confirms the trespass merely. It establishes no ground upon which to found title to the property.

      Heard April 11th.

      Decided April 24th.

    Error to Wayne Circuit.
    This was an action of replevin, brought by the plaintiff against the defendant, for one horse pony.
    The plaintiff declared against the defendant for the unlawful detention of the said horse pony; the defendant plead the general issue. The cause was tried by the court upon the following stipulation:
    “ It is stipulated and agreed that the pony in question was the property of the plaintiff at the time of the alleged taking up on a public road, in the township of Southfield, Oakland County, Michigan; that such taking up was by a minor son of one Jonathan W. White, a resident and freeholder of said township; that said son was not a freeholder of Southfield or elsewhere, but that he resided with his father, and was a member of his family; that said taking up was not done in the presence, or with the immediate knowledge or consent of said White; that White did not-know of it, until informed by his said son during the day of the taking up; that he first saw the pony in his stable, where he had been placed by his said son; that White said on the trial of the cause in the Justice Court, ‘ that had he seen the pony at; the time of the taking up, he would have set his dog on Mm and driven him away ’; that White retained said pony in his possession, and afterwards sold him as an estray, by which sale he came into the hands of the defendant; that when taken up, the said pony was unsaddled, unbridled and loose, and not in the .charge-of any person, and was apparently an estray.
    That the only question is as to the legality of the taking up of said pony as an estray by White’s son, as aforesaid, and whether such taking up was sufficient to authorize the further proceedings to sell him as such estray, so as to convey the property of the pony to the vendee on said sale.
    Ward & Palmer, Wm. Gray,

      Att'ys. for Plaintiff. Attfy. for Defendant.”
    The Court found that the defendant did unlawfully detain, &c., as charged in the declaration, and rendered judgment in favor of the plaintiff.

      Wm. Gray, for plaintiff in error.
    By the statute, the right of taking up an estray, and selling, &c., is given only to a resident freeholder. — 1 Comp. L. § 1605.
    In this case the actual taking of the pony from the highway, where he was straying, was done by the son of White, who was not a freeholder; but the case shows very plainly that he acted for his father; he was a minor and living with him; he placed him in the father’s stable, and at once informed White, senior, of what he had done.
    Previous to his acts the son had no authority from his father; but when advised of what had been done, the latter adopted and ratified his son’s action, and proceeded to sell, &c.
    The subsequent ratification relates back to the time when the agent "acted, and leaves the matter as if the agent had original authority. — Story on Agency, §§ 239, 242. This rule extends to tortuous acts of the agent. — Id., § 244.
    Again, at the time that White, senior, found the pony in his barn, and took charge and control of him, he was still an estray under the provisions of sec. 3. It would be unreasonable to require that White should turn the pony loose for the purpose of again driving him hack to the barn. He knew he was an estray, and as such he retained and sold him.

      Ward & Palmer, for defendant in error.
    The right to sell estrays is only created by statute. — 1 Comp. L. chap. 47, p. 507: Authority to take the property of one man and transfer it to another, in an ex parte proceeding-, is a simple naked power given by the statute, and no authority which is not expressly given, can be exercised.—6 Mo. 64-74, and cases cited; 2 Mich. 486-490; Blackwell, 45-58.
    The statute authorizes “ any resident freeholder of any township to take up any stray horses by him found going at large.” — 1 Comp. L. § 1605 ; and by § 1614 of the same act, it is provided that if “ any person shall fail to comply with the act, he shall be precluded from the benefits thereof.”
    The decisions under similar acts have uniformly been, that there must be a strict compliance with the law.—3 Mo. 214; 8 Id. 344; 23 Id. 67.
    If said minor was competent to take up the horse under the statute, then the law would compel him, as “ such finder,” to proceed and sell the horse as an estray; and the entries, notices and proceedings in the sale, in the name of J. W. White, would be irregular and void. — 1 Comp. L. § 1606.
    If said minor was not a competent person to take up the horse, before his acts were approved and recognized by the father, he was a trespasser in the act, and the father, assuming-his acts, would thereby become a trespasser also, and all his act would be void.
    Perhaps it will be contended that all the son did, was the act of the father, he being the general agent of the lather.
    Can the discretion of “ taking up,” authorized by statute to be exercised by particular persons — namely, “resident freeholders ” — be delegated to an agent of immature years, not a freeholder, and if so, would it be such an act as a minor son "'would be authorized to do, within the scope of his ordinary duties, “ without the knowledge, consent or direction of the father ? ”
   Christiancy J.

The horse having been taken trp by the minor son who was not a freeholder, in the absence of the father, and without his previous knowledge or consent, such taking, it is admitted, would have been illegal if left to stand upon the act of the son. But the subsequent acts of the father, who was a freeholder, in retaining and selling the horse as an estray, it is insisted, operated as a ratification, and rendered the act of the son legal, as the act of his father.

The ratification is unequivocal, and so far as respects the father’s liability for the act, was equivalent to a prior command. But here the ratification is set up as the basis of a right to divest the plaintiff of his property; and the plaintiff seeking to make title through the father, the question is the same as if the action had been brought against the father, and he had sought to hold the property on the ground of the ratification.

The power to divest another of his property by this summary and ex parte proceeding must be strictly pursued, and none of the safeguards which the statute has thrown around the exercise of the power can be disregarded. The statute has given the power only to “ any resident freeholder of any township to take up any stray horses, &c., by him found going at large in such township.” The object of the legislature in restricting the power to this class of persons we must suppose to have been to protect the rights of the owner of such property in every way that such a restriction might operate to that end. Other classes of persons might, as a general rule, be not only less able to respond for an abuse of the power, but less careful to inquire into the circumstances before exercising it; less discreet in making seizures, and more disposed to exercise the power under circumstances which would not call for its exercise, than freeholders against whom the same power might be exercised by their neighbors.

In this view, of the statute every owner is entitled, before his property shall be “taken up,” to have the benefit of the knowledge and information of the freeholder, and to the exercise of his personal discretion and judgment upon the circumstances of the case, and his personal decision thereon. That this would in fact have operated as a protection against the seizure in the present case, is very probable from the evidence of the father’s statement; but this is simply what the law would have presumed without this item of evidence. If the father seeing the property running at large, and observing and deciding for himself upon the propriety of taking it up, had directed the son merely to execute the act, this would have been the act of the father and not of the son, and the plaintiff would have had in this respect the protection which the statute intended to give Mm. But the propriety of the act was decided upon by the son, and the horse seized in the absence of the father, and without Ms knowledge or consent. The father had no right to substitute the information, judgment and discretion of the son for his own. The son was a mere trespasser; his act was illegal and void, and the subsequent ratification confirmed it only as such, as a void and illegal act, upon which no right to the property can be founded. — Story on Agency, §§ 241, 242; Harrison v. McHenry, 9 Geo. 164.

The judgment of the Circuit Court must be affirmed, with costs of both courts.

Campbell & Coolet JJ. concurred.

Martin Ch. J.

dissenting. I think that the retention of the horse by the father was a full ratification of the son’s act, and that the “ taMng up ” must be considered his. If he had repudiated the act of the son, and turned the horse loose, upon learning of the son’s act, the rule would be different. I think the judgment should be reversed.'


author: Campbhlu J. Martin Ch. J.

text:
    Dwight G. Holland v. Jesse Hoyt.

      Pi'omisso'nj note. Evidenóe. Want of consideration. An action was brought on certain promissory notes. The defendant, under a proper notice, offered to prove that a verbal contract had been made for the exchange of lands, and that defendant, upon assurances that it would be carried out, had sold the land he so purchased; that defendant executed and delivered his deed to the plaintiff who accepted it, and then executed his deed for. the land to be given in exchange, and sent it to his agent with instructions not to deliver the same until the defendant should pay or give his notes for $1000, on the alleged ground that the deed embraced more land than he had understood was to be conveyed, and that this was the value of such excess. The defendant thereupon being obliged to have the land to carry out his own bargain, executed the notes sued upon under protest, and took the deed. The Court below excluded the testimony. Held, to be error, and that such testimony was admissible, as tending to prove want of consideration. There was nothing in such testimony tending to prove a compromise.

      Equitable tille. Consideration. An equitable title is just as much property as a legal title, and although not in all respects onforcible in a Court of Law, is recognized in all courts as a valid consideration for an agreement.

      Statute of Frauds. There is nothing in the Statute of Frauds which precludes recovery for the price of land actually conveyed, whether the agreement for the price is written or verbal.

      Estoppel — Agent. The acts of an agent whose authority is not valid under the Statute of Frauds cannot estop his principal unless actually adopted by him.

      Heard October 27th, 1865.

      Decided April 24th.

    Error to Saginaw Circuit.
    The facts are stated in the opinion.

      Webber & Smith, for plaintiff in error.
    1. No parol authority could authorize Mott to bind Hoyt by negotiation for a sale of lands. — 2 Comp. L. § 3179.
    The delivery of the deed by Holland to Hoyt can make no difference. If Hoyt refused to carry out a proposed bargain, except for a further consideration, it was at the option of Holland to pay such further consideration, or to resort to his bill for a specific performance, if he had performed on his part. — 1 N. H. 65.
    This cannot be considered as a technical “ exchange” within the common law. If so claimed, it would be void, as never consummated. — 2 Bl. Com. 323.
    2. Inadequacy of consideration is not. in itself any defense to an action on the notes given by Holland.—5 Pick. 380-4; 21 Wend. 588; 1 Starkie, 51.
    Compromises are favored in law, and courts will not disturb them. An adverse claim of right is a good consideration for a promise.—4 Met. 270; 2 Mich. 148; 2 Doug. Mich. 344; 8 Vt. 141; 10 A. & E. 323, 309.
    3. In this case there is a written contract, signed and delivered — a promise to pay the amount of the notes. It is now alleged by way of defence that the notes were obtained by a species of duress. That althoixgh he signed the notes, knowing all the facts, without any fraud or concealment on the part of the other party, yet the contract was quite another thing from what appears on the face of the notes. Such a defence cannot succeed. — 44 Me. 496; 2 Pars. on Bills and Notes, 501, 502, 503, 508; 1 Cow. 249; 1 Greenl. Ev. §275-7; 8 Greenl 213; 24 Me. 566; 11 Mass. 27; 11 Pick. 417; 1 Denio, 400; 12 Met. 275; 5 Mich. 204, 218.
    Duress of goods is no defence. — 6 M. G. & Scott, 596; 11 A. & E. 983 ; 3 M. & W. 633, 650.

      John J. Wheeler, for defendant in error.
    1. The Statute of Frauds has no application to the case.
    It was a parol contract for the exchange of lands, which had been executed by mutual conveyances, and the case is only an inquiry into the consideration, which Is not required to be in writing.—2 Comp. L. § 3180; 17 Mass. 122; 5 Cranch, 142.
    2. Where a contract of sale has been brought to a conclusion, the liability of the vendee cannot be carried beyond the stipulated price by an express promise of an additional sum, though put in the form of a promissory note. — 22 Wend. 470 ; 13 Johns. 257; 2 Barb. 420; 19 Pick. 387; 3 McLean 330; 6 Exch. 839, note; 2 Seld. 369; 25 Vt. 386; 4 Denio, 52.
    In this case the contract was consummated. Holland had deeded, and had fulfilled the parol contract on his side, and all that remained to be done on the other, was to pay the consideration agreed upon, which in this case was to deed other lands. Such a case will enable the recovery at law-of the contract price, and the defence that his' promise to pay is not in writing, in other words the “ Statute of Frauds,” will be no defence.- — 2 Kern. 364; Brown on the Statute of Frauds, §§ 117, 126; 1 Cush. 82; 6 Vt. 383; 14 Conn. 119; 20 Johns. 338; 10 Wend. 436; 12 Mass. 514.
    The consideration agreed upon was a deed of lands by Hoyt, which he refused to pay without a deduction of the price; this is the legal effect.
    It cannot be claimed that Hoyt did not know of the agreement, because he kept Holland’s deed, and sent his own to be delivered, and gives as a reason for demanding the notes in question, not that he wanted a new agreement, but that he was paying more for Holland’s land than he supposed, and ought to get it for less.
    3. He is estopped from claiming this deduction in the price of Holland’s land.
    By his assurances he induced Holland to so place himself that he could not be restored to his former position.
    Hoyt obtained Holland’s deed by agreeing to convey the very land, the deed for which he delivered, after exacting in addition to the agreement, the notes in question — -induced Holland to bind himself to convey the same land to a third party, by assurances that he should have it to convey, and that the agreement would be carried out; and Holland having acted upon this assurance, and bound himself, and so being placed by Hoyt in a position where he could not re-instate himself in his former position; and Hoyt having accepted and kept Holland’s deed, is concluded and estopped, and cannot make any subsequent claim, a legal consideration for a promise to pay Hoyt a sum of money, by way of enabling Hoyt to get the land of Holland for less consideration, by taking advantage of Holland’s position in which he had placed him.— 3 Hill, 219; 2 Smiths L. C. (4th ed.) 562 et seq.; 2 Pars. on Con. 340.

      This doctrine is good, even as to contracts relating to land, and which would otherwise be within the Statute of Frauds.—2 Am. L. C. (4th ed.) 684, 756, 162; 15 Ohio 248; 2 Smith's L. C. (5th ed.) 651; 2 Washb. on R. P. 460 ; 28 Me. 127; 40 Id. 348.
   Campbhlu J.

Hoyt sued Holland on promissory notes for $1000, to which the latter pleaded, and offered to show want of consideration. Having proved that they were given on an exchange of lands, the negotiation for which began with Hoyt and was also partially conducted with an agent, one C. B. Mott, the defendant beloAV then offered to prove the following state of facts: That Hoyt had verbally authorized Mott to negotiate for an exchange of lands, and a bargain was closed Avith him; that when it Avas closed Holland told Mott he was negotiating' a sale of the property coming to him, and, not having a deed, wanted some assurance that his bargain with Hoyt would be carried out, and Mott assured him it Avas all right, and the deed Avould be given, and he might go on Avith his trade with the other party; that Holland, relying on this, made a contract in writing Avith the other party to convey him the land coming from Hoyt. That he then deeded his own land to Hoyt, and Hoyt received it with a deed to be executed back to Holland of the land coming to Holland. That Hoyt kept the deed executed by Holland, and executed the deed to Holland, and sent this last back to Mott, instructing him not to deliver it until Holland paid $1000, or gave his notes to that amount. Hoyt claimed that the deed to Holland embraced more land than he had understood was to be conveyed, and insisted the $1000 should be paid for the excess. Holland having become liable to convey the premises to his vendee, gave the notes in controversy, protesting that Hoyt had no right to exact them.

The Court below refused to allow this proof to be given, and the refusal was excepted to.

The objections to the testimony were based on the Statute of Frauds, and also upon the ground that the existence of a dispute was of itself sufficient to form a consideration for a compromise.

We see no foundation for this last objection. There was nothing in the offer tending to prove a compromise. The notes were given under protest, and for the full amount claimed- by Hoyt as the price of the excess of land which he alleged he was deeding. It is very far from true that every dispute will form the basis of a promise to pay to settle it. In this case there is no pretense of a compromise.

The objections arising out of the Statute of Frauds require more attention. The entire transaction prior to the deeds was verbal, and of course, if no deeds had been made, could not have been the ground of relief at law or in equity. But when a verbal contract is performed by the conveyance of land on the one part, there can be no difficulty in compelling the equivalent from the other contracting party. A Court of Equity can decree specific performance, if that is needed, and a Court of Law can allow a recovery of the purchase money, if that is all that is sought.—Thomas v. Dickinson, 2 Kern. 364.

If Mr. Hoyt himself accepted Holland’s deed in fulfillment of a parol bargain to exchange lands, then Holland could have compelled the exchange in equity, and Hoyt could not have refused to make it. And if Holland had a right to receive the land from Hoyt, for the price already paid, it can make no difference that he could only obtain specific performance in equity. Paying or promising to pay anything more for the land, would be paying for what he owned already. An equitable title is just as much property as a legal title, and although not enforced directly in a Court of Law, stands on the same footing with legal titles as a consideration. And if Holland under such circumstances should see fit to sue for the price of his land at law, on Hoyt’s refusal to convey, he would recover the value of that which Hoyt ought to have conveyed to him.

The offer of the defendant was, in effect, to show that he had conveyed his land under a parol agreement accepted by Hoyt, and that the latter after obtaining- his deed from defendant, refused to perform on his own part, until he had exacted an additional price. The evidence was we think admissible. When the facts all appear, the defence may or may not show Hoyt bound to convey. But there is nothing in the Statute of Frauds which precludes recovery for the price of land actually conveyed, whether the agreement for the price is written or verbal. In the present case the land has been conveyed on both sides, and the only question is whether one parcel fully paid for the other. This must depend upon the facts attending the transaction.

It was claimed as an independent defence that, by inducing defendant to contract for the sale of the land coming to him from Hoyt, the latter was estopped from refusing to convey to him. As Mott had no written authority from Hoyt, his assurance could not bind him any more than his contracts. They stand in this case on exactly the same footing. The defence must all depend on Hoyt’s own conduct, and not on Mott’s, except so far as the former made it his own by his acts.

The judgment must be reversed, with costs, and a new trial granted.

Cooley and Ohristiancy JJ. concurred.

Martin Ch. J.

I concur that a new trial should be granted.


author: Cooley J.

text:
    The People ex rel. Joshua B. Dickinson v. Thomas L. Sackett.

      Quo Wari'anto. Practice. New trial. This Court will not attempt to review the proceedings on the trial of issues of fact framed for trial before a jury in the Circuit Court, except upon the Judge’s report of the proceedings, rulings ancl evidence before him.
    A new trial may be granted after a trial in quo warranto, upon the same grounds, and on the same showing as in civil cases generally. The practice, not being provided for, either by statute or rule of court, is governed by that of the common law.

      The Judge's report, what it should contain. The Judge’s report is the foundation of the motion, and it should he as full, for the purpose of enabling the parties to raise the legal questions, as would be necessary in a bill of exceptions.
    As the practice of proceeding by rule nisi has not been adopted here, the Judge can only be guided in making his report by the objections taken before him; and he would commonly be required to go no further than to show the pertinency oi these objections.
    But if the motion is to be on the ground that the verdict is against evidence, the evidence should not only be incorporated in the report, but the Judge should also express his opinion thereon for the guidance of this Court; and the parties should have an opportunity of appearing before the Judge, for the purpose of settling the report.

      Newly discovered evidence. Amendment. The motion for a new trial, in this case, having been made without a report from the Judge, on various grounds shown by affidavits, and amongst others a refusal of the Judge to allow an amendment at the trial, so as to permit the introduction of newly discovered evidence, the Judge was directed to make his return in full, with his opinion upon the evidence, after giving directions for notifying the parties; and it was held, that, after the coming in of the report, the motion could be renewed, as well upon the report, as upon the affidavits of newly discovered evidence.

      Heard April 11th.

      Decided April 25th.

    Information in the nature of a quo warranto.

    In this cause certain issues of fact, arising upon the several pleas of the defendant, were referred for trial to the Circuit Court for the County of Macomb. A trial by jury was had in said Circuit Court, and the verdict returned to this Court. The defendant now moved for a new trial of said issues, and for leave to amend the pleadings, upon the grounds stated in the opinion of the Court.

      G. Hubbard and Maynard c6 Meddaugh, for the motion.

      J[ JS. Hldridge, Win. JP. Wells and G. V. H. Lollvrop, contra.
   Cooley J.

In this case an information was filed to try the right of the defendant to the office of Register of Deeds for the County of Macomb. It appears from the papers before us that the relator and the defendant were opposing candidates for the office, and that the former appeared by the canvass to have a majority of eight of the votes legally cast; but the certificate of election was awarded to the defendant, and he has since been the actual incumbent. The principal questions raised by the pleadings ar% first, a fraudulent substitution of ballots in the township of Sterling for those cast by the electors; and second, the counting for the relator of certain ballots, in the township of Clinton, which were cast for the defendant. ■

Issues were agreed upon by the parties for the trial of these questions, and by an order of this Court they were sent to the Circuit Court for the County of Macomb for trial by jury. We have before us a certificate of the clerk of that Court, giving a copy of the verdict of the jury, by which it appears that they found no fraudulent substitution of ballots in Sterling, but that in Clinton three votes cast for the defendant were counted for the relator. Correcting the count in this particular, the relator would still appear to have a majority of two votes.

The defendant now moves us to set aside this verdict, and grant a new trial, for the reasons — First, that the Circuit Judge misconstrued the order of this Court transmitting said issues for trial, as giving him no power to continue the trial on cause shown, and refused a continuance on that ground; Second, that the Court erroneously permitted a witness to be recalled and examined after the cause was summed u]d, and refused to permit another to be sworn to contradict him; Third, that the Court refused to allow certain other mistakes in counting in the township of Clinton to be shown, which would have made a further relative difference of two in favor of the defendant in that township ; Fourth; that the. verdict was against evidence; Fifth, that new and material evidence has since been discovered which would have changed the result.

To show cause for the new trial, affidavits were produced by the respondent, purporting to give the evidence on the trial in full, with the various rulings of the Circuit Judge. The principal issue seems to have been upon the alleged fraud in Sterling. The inspectors of election, at the close of the polls, disregarding a plain provision of the statute to which their attention was called at the time, and which required them to proceed,immediately to canvass the votes, and then publicly declare the result of the election, — Laws 1861 p. 294, adjourned the canvass to the next day, and it is alleged that at that time votes upon which the name of the defendant had been substituted by the electors for that of the relator, were not then to be found in the box. Voters seem to have been sworn to establish this fact. The ruling of the Circuit Judge excluding further evidence of mistakes in the township of Clinton, is alleged to have been on the ground that they did not fall within the issue as framed; and the reason given for not framing the issue broad enough to cover them was, because of misapprehension of counsel as to one error, and as to another, that in fact it was not discovered by the defendant until the time of the trial. On the other hand, the relator files affidavits denying that such rulings were made by the Circuit Judge as is alleged, and denying that any mistakes were discovered in Clinton which were not corrected by the jury in their verdict. Affidavits are also put in on both sides as to the alleged newly discovered evidence, and the defendant asks leave, if the motion for new trial is granted, to amend the issues so as to cover all the alleged mistakes in Clinton.

We do not think we should be warranted in disposing of the motions made on the papers which we have now before us. We have no report whatever from the Circuit Judge, and no means of determining what have been his rulings, or what was the evidence given on the trial, except as we gather the facts from the conflicting affidavits. The defendant has. a right to a review of the rulings made by the Circuit Judge on questions of law arising on the trial; but it would not only be exceedingly unsafe, but unjust also to the Judge, to permit such review upion any other statement of the proceedings than his own. In Niagara Fire Insurance Co. v. DeGraff, 12 Mich. 10, the Court refused to allow anything to be added to, or treated as a part of the bill of exceptions, by the consent of the parties, which had not been incorporated therein by the Judge himself; and the Court of Kings Bench in Major v. Oxenham, 5 Taunt. 180, declined to hear a rule for a new trial discussed without having the report of the Judge who tried the cause, though the facts were undisputed. If it is improper to discuss the Judge’s rulings in the absence of his own statement, when the parties agree as to what they were, it is obviously still more improper to pass judgment upon them when we are only informed what rulings the Judge has made, by affidavits which it is impossible to harmonize.

The practice in reviewing trials upon issues in these cases, is not provided for in this state by either statute or rule of court; and it must therefore be governed by that at the common law. It was for a time doubted whether a new trial could be granted after trial on quo warranto, but it is now well settled that it stands in this respect upon the same footing as civil cases generally.—Rex v. Francis, 2 T. R. 484; Rex v. Malden, Burr. 2135; Tidd Pr. 911; 1 G. & W. on New Trials, 372, 533; Note to People v. Richardson, 4 Cow. 120. But the foundation of the motion is the Judge’s report of the trial; and this report should be as full for the purpose of enabling the parties to raise the legal questions, as would be necessary for a bill of exceptions. If the motion is to be on the ground that the verdict is against evidence, the evidence should not only be incorporated in the report, but the Judge should also express his opinion thereon for the guidance of this Court. As the practice of proceeding by rule nisi has not been adopted here, the Judge can only be guided in making the report by the objections taken before him; and he would not commonly be required to go farther than to show the pertinency of these objections, and to report the findings. But as, in this case, the motion assails the verdict as against evidence, the report should also set it forth in full, and the parties should have an opportunity of appearing before the Judge, for the purpose of settling it. When the report comes in, the motion can be renewed, as well upon the report as upon the affidavits of newly discovered evidence.

The motion for leave to amend cannot well be considered, until we have the Judge’s report, as it seems to be based upon what is alleged to have been first discovered at the trial, and excluded from the jury. If the real matters in controversy have not been fully tried, the case should be submitted to a jury again.—Rex v. Malden, Burr. 2135; D'Ayrolles v. Howard, Burr. 1385. And if, by mistake or otherwise, the defendant’s plea has not made the issue sufiiciently comprehensive, the verdict against him may be set aside for the purpose of amendment and new trial, on such terms as to the Court shall seem just.—Rex v. Philips, Burr. 292. Although the pecuniary interests involved are individual, the prosecution is both in name and in fact on behalf of the people, and it is of the utmost importance in every case, that if frauds or mistakes have changed the result of an election, they should be brought to light, while, if they are unjustly charged, the public confidence in the administration of the election laws should be restored by affording an oj)portunity to disprove them.

An order should be entered directing the Circuit Judge to make return of the proceedings and evidence, with his ojfinion upon the evidence, in accordance with these views. To enable him to do this satisfactorily, copies of all the affidavits presented for and against this motion, so far as they relate to the proceedings before him, should be served upon him, and he should assign a time for settling his report, and give directions for notice thereof. On the coming in of the report the motions can be renewed.

The other Justices concurred.


author: Campbell X

text:
    Samuel S. Taff v. John Hosmer and another.

      Irregular writ of erro?\ when bar to a party not joining in it. The defendants in error moved to dismiss the writ df error on the ground that the plaintiff in error ought to have joined in a former writ. Heldt that the former writ, being brought by a party who had no right to maintain it, and having been dismissed for that reason, the plaintiff was not bound to join in it, and the same does not bar him.

      Who is a party? The plaintiff in error appealed from the decree of the Probate Court, establishing the will by which the testator devised his property to his infant son, being the grand-son of the plaintiff; and the proponents of the will having in the Circuit Court joined issue with, and taken a personal judgment against him, affirming the will, with costs; hekl^ that the plaintiff in error was clearly a party to such judgment, and might bring error; and that the writ was therefore regular.

      Who may contest a will. No one can contest a will which only disposes of property, except the heir at law or next of kin of the testator; but where the will appoints guardians to a minor, any one may oppose it who would be entitled to be heard in opposition to an ordinary application for guardianship.

      Next of kin interested in guardianship. Probate and Ghanceny Practice. In the absence of statutory regulations concerning the persons entitled to be heard on such applications, resort must be had to the practice in chancery from which our Probate jurisdiction in this class of cases is derived; and as the next of kin were entitled by that practice to be heard, they should be allowed to appear in the Probate Court.
    But no one has a right to demand an appointment of himself as guardian, except the persons designated by statute, which mentions none but the parents.

      Who may appeal from Probate. Any one entitled to be heard on such an application, must be regarded as entitled to appeal from an adverse decision.

      Heard April 18th and 20th.

      Decided April 25th.

    Special motion to dismiss a writ of error, to Wayne Circuit.

      D. JB. Duffield, C. I. WaUeer and G. ~V. N. Loihrop, for the motion.
    1. Taff cannot at common law bring this writ of error; because it does not appear that he has either been injured by the judgment below, or that he would receive any advantage by its reversal.
    •No one can bring a writ of error unless he brings himself within this rule of law, and to this end are the authorities from the earliest cases down.' — 2 Tidd's Pr. 1135; Coke on Litt. 289.
    “ A man shall not reverse a judgment for error if he cannot show that the error is to Ms disadvantaged — Tey's case, 5 Coke, 38; 4 Term R. 510; 2 Saund. 46; 16 Conn. 536; 27 Id. 566 ; 12 Wheat. 554; 13 Wend. 280 ; 17 Id. 434 ; 1 Scam. 131; 3 Id. 483 ; 1 Blackf. 54.
    “ Writ of error will be dismissed if the plaintiffs in the writ were not parties to the controversy to be reviewed.” — 35 III. 390.
    2. The plaintiff in error is not a party “aggrieved,” under. the> statute regulating appeals from the Probate Court, and therefore cannot prosecute this writ.
    The language of the statute (Comp. L. § 3631) is : “In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a Judge of Probate, may appeal therefrom to the Circuit Court for the same county, by filing a notice thereof, with the Judge of Probate, within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.”
    The first clause of this statute is the same as that of the Massachusetts statute as quoted in 2 Mass. 140.
    ' In order to constitute a legal grievance under the statute, the party appealing must have a right of property — an interest in the administration of the estate. — 16 Pick. 264.
    The following cases show who may or may not appeal from the Probate Court: — 2 Mass. 140; 9 Id. 385; 5 Cow. 719; 3 Pick. 443 ; 16 Id. 264; 9 Gill and J. 324; 6 Metc. 194; 10 Vt. 420; 34 Me. 44; 2 Root 219; 3 Mo. 269.
    In the record, it does not appear that any right of property or interest in this estate, exists in favor of this plaintiff in error.
    3. The right to this motion was not waived by omitting to make it in the Court below. It goes to the jurisdiction, and cannot be waived.—1 Clarke, Iowa, 492; 3 Id. 114; 10 Iowa, 380.
    Neither is an error going to the foundation of the action waived, by omitting to assign it as error. — 24 Texas, 159.

      And the want of jurisdiction can be taken advantage of for the first time, in the Circuit Court, on error. — 12 Iowa, 204.
    4. At common law, all parties interested must join in the prosecution of the writ of error.' — 2 Tidd's Pr. 1135; 2 Burr. Pr. 136 ; 2 Saund. 101, note e.

    And the alternative where a party refuses to join in the prosecution of this writ is, that he be forever debarred from bringing another writ.
    The common law rule is re-enacted by Comp. L. §5336, and our rules must be in harmony with that.
    The alternative must be what we claim it to be, or else there is nothing gained by disseverance, and successive writs may issue to every party, and as we have seen, this is not allowed. — 2 Tidd's Pr. 1135; 2 Burr. Pr. 136.

      Points by T. Romeyn, against the motion.
    1. The plaintiff in error was a party “ aggrieved ” by the order of the Probate Court, from which an appeal was taken to the Circuit Court. — 2 Comp. L. § 3007-3631. But for the will which was admitted to probate, he would have been entitled to the guardianship of the minor. — 2 Kent's Com. 226, note c.

    2. But whether this be so or not, it is very clear that the defendants in' error, not having objected in the circuit to the plaintiff’s right to appeal, cannot now raise the question. This is an elementary principle. — 2 Abbott's Dig. 564, and cases cited.

    It is no answer to this point to say that the question of jurisdiction is always open. This is true only in a qualified sense. If the court is a court of general jurisdiction, having-cognizance of the class of cases in controversy, the right of a particular party to present the case, may be controverted by a motion to dismiss, or a plea in abatement, or otherwise.
    But if the defendant, waiting all objections to the person of the plaintiff, goes to trial on the merits, he is precluded from afterwards raising the question of the capacity of the plaintiff to sue.
    In fact, the exercise of 'jurisdiction by the court in cases whore it has general jurisdiction over the subject matter, implies that it has, in effect, adjudicated upon the question of the particular case having been brought within the range of its authority. — 6 Peter's, 709; 12 Id. 657; 2 How. 319, 339, 340-2; 2 Doug. Mich. 453.
    3. The plaintiff in error is not affected by his neglect, or omission to join in the writ of error sued out by the infant, Samuel W. Jackson.
    That party had no status in the Circuit Court. It was so decided by this Court. That wiit was in law a nullity.

      Points by L. Bishop and A. Bussell, on the same side.
    1. Taff was the guardian by nature of the infant Samuel W. Jackson, and as such he was entitled to his care and custody, at least till the will should be finally established, if not longer. — 1 Coke, 153, note 2; Reeve's Domestic Relations, 314, 315.
    The grandfather, as guardian by nature, stands in loco parentis; and parents, and those who stand in the place of parents, are entitled to the custody and control of their minor children or wards. — 2 C. L. 3303-4; 2 Kent, 226, 228; 6 How. (Miss.) 406.
    Upon principle, the relation of natural guardian to a ehild involves a duty to do whatever belongs to such relation, and it also involves the corresponding right in the guardian to exercise care and custody over the ward.
    This is a right in the guardian in no way dependent upon the condition of the ward, or upon his will, for in law he has no will.
    If this position be correct, Taff, as the natural guardian of the child, was directly interested to resist and defeat a will Avhich appointed guardians over his ward, and thus affected and destroyed his right. This rendered him an aggrieved
      party, within the meaning of the statute, by the decree of the -Probate Court.
    From the decision of the Probate Court, Hosmer and Bissell, as testamentary guardians, could have appealed. — -14 Md. 8.
    If persons thus claiming as testamentary guardians, would be aggrieved in such a case, a guardian by nature could be -equally aggrieved by an adverse decision, and could maintain an appeal.
    It is very clear that until the will be finally admitted to probate, by a court of last resort, the testamentary guardians -could have no control over the child. — 2 C. L. 2844; 1 Jarman on Wills, 218-19.
    The general rule is, that any person whose rights are affected by a decree of the Probate Court, may appeal therefrom.—6 Metc. 194; 6 N. H. 116 ; 4 Pick. 33 ; 1 Id. 71; 2 Root, 219; 4 Mumf. 403.
    A person aggrieved may appeal, though not a party to the proceedings in the Probate Court. — 27 Me. 78; 18 Md. 510.
    2. If the Court has jurisdiction of the subject matter, and the parties go on without objection, as they did in this case in the Circuit Court, and the cause is tried and determined, the ■objection is waived. — 4 Mumf. 422 ; 25 Geo. 467.
   Campbell X

This is a motion to dismiss a writ of error, on two grounds: first, because Taff omitted to join in a former writ which was dismissed; and. second, because he is not entitled to consider himself aggrieved by the judgment below.

The case in the Court below was an appeal from the allowance by the Probate Court of Wayne County of the last will of Cyrus W. Jackson, whereby he left all his property, with some small exceptions, to his son Samuel W. Jackson, an infant -of tender years, and appointed Bissell and Hosmer guardians and executors. The appeal was brought by Taff as grandfather of the child, who was an only child. The decree of the Probate 'Court was affirmed at the Circuit, and a writ of error was sued out in the name of the infant and Taff jointly. Taff was summoned to join hut failed to do so, and the infant severed and became sole plaintiff in error. This writ we dismissed at our last term in Lansing on the ground that the infant could not complain of a decree affirming one from which he had not appealed. Taff then sued out the writ which it is now sought to quash.

The affidavits presented, certainly have some tendency to show that in all these proceedings Taff has been the moving party, and we cannot help thinking that such is the fact. But if he had any grievance which he had a right to complain of in his own name, we cannot hold that he was obliged to join in an irregular writ with some one who could not lawfully sue it out. Had the former writ been regular, and had judgment been rendered upon it, no doubt he would have been barred. But its dismissal for irregularity could not prevent Taff from, suing out a new writ, and while the proceedings are of very doubtful propriety, we cannot say that misconduct has been made out so plainly as to justify us in refusing him a hearing if he has any legal standing in court.

We are, therefore, compelled to consider whether Mr. Taff has the right to consider himself aggrieved by the judgment below.

It appears that, instead of moving to dismiss his appeal in the Circuit Court, the proponents of the will joined issue with him on the merits, and the judgment affirming the will is also in form a personal judgment against him for costs. This liability is clearly a personal grievance of his own, upon which error may be brought, and the writ, therefore, is not irregular. But if he has no further interest in the judgment below, this would give him no right to dispute the will itself, and no error appears to be assigned on this point. We are therefore called upon to examine the more serious question, whether he was legally interested in the main controversy.

The disposition of Mr. Jackson’s estate and the appointment of guardians, are both contained in the same will, there being no codicils. We have no difficulty in holding that Taff could not contest a will merely disposing' of the property. He is neither heir, devisee, nor next of kin, and is therefore a stranger to the inheritance. No case has been cited, and we presume none exists, which would favor any pretence of a right to interfere with the disposition of property because he is next of kin to the heir, who is the only person living concerned in opposing a will which lessens his inheritance.

It is claimed, however, that Taff has a legal right to be heard upon any question involving the guardianship of his grandchild, and that on this account he may oppose the will, because the question of guardianship cannot be severed from the rest of that instrument.

Our statutes give to the father, and where there is no father to the mother, (where capable of acting,) control of the infant’s person.- — -2 C. L. §§ 3303-4. In all other cases the guardian appointed by the Judge of Probate controls both person and property. And where an infant is under fourteen years of age, the Judge, (except in the cases mentioned,) is not compelled to select the guardian from any particular class of persons.— §3300. We do not find in the statute any right secured to „any relatives but the father and mother, to retain control of the infant by any species of guardianship, and as the statute covers the entire subject, we must find Ms right, if it exists, in some form distinct from any absolute claim to appointment.

The question, then, arises, whether his relationship entitles him to be heard in any proceedings to obtain guardianship. If he could appear as a matter of right, upon any application for that purpose, we think it must follow that he could appear to contest the validity of a will appointing guardians. If he could not interfere of right in the one case, he is upon the same grounds a stranger to the other. Although, if the will is duly executed, no one can complain of the father’s choice, yet we think it competent for such persons as are legally concerned, to dispute the fact of any such choice having been made.

• We are therefore to inquire what j>ersons are considered as authorized to intervene in the Probate Court, besides the father and mother, and the infant himself.

The statute throws no light upon this question. .It simply declares that “ The Judge of Probate in each county, when it shall appear to him necessary or convenient, may appoint guardians to minors and others,” <fcc.; § 3299; and that “ if the minor is under the age of fourteen years, the Judge of Probate may nominate and appoint his guardian.” § 3300. If we were to assume that this language was designed to exhaust the subject, we should be compelled to find that the law had placed infants under the age of fourteen in a complete state of isolation from all the ties of blood, and all the associations which we are apt to consider as natural bonds of union. It does not seem probable that any civilized legislation would deliberately cut him loose from his relatives altogether, and leave him entirely at the mercy of strangers. There can be no doubt that the Judge of Probate is the ultimate arbiter in the selection, but if no one else has any right to intervene to aid him in making a good and rejecting a bad choice, the condition of a helpless child would be most deplorable. And yet, if there is no law on the subject, it cannot be helped by any regrets.

We do not think the matter has been left in such an anomalous condition. Although Probate Courts are new institutions unknown to the ancient law, and although the appointment of guardians is in this State vested in those courts, yet the jurisdiction is not in itself a new one, and must be considered as having been transferred with such of its incidents as can be properly exercised in the new tribunal. The power of appointing guardians is one which was formerly vested in the Court of Chancery. Authorities have not agreed upon its origin as a prerogative or a judicial airthority, but it has long-been settled that, so far as infants are concerned, (although perhaps otherwise as to lunatics,) the jurisdiction is one belonging to the Court, and not a personal one in'the chancel lor. — Ex parte Phillips, 19 Ves. 118; 2 Fonblanque's Eq. 232. It has also been sometimes asserted that the jurisdiction of equity was one relating to property rather than to person, but while the Court can rarely find it necessary to interfere when an infant has no estate, yet the jurisdiction does not depend upon that fact.—Wellesley v. Duke of Beaufort, 2 Russ. Ch. 21. We regret that upon the argument the authorities bearing upon this jurisdiction were not brought to our attention. We have been obliged to make such investigation as our own facilities have enabled us to pursue.

It appears that the general practice, where a guardian was applied for, was to refer it to a master to report the circumstances, &e., of the infant, “ and what relations he has and that dll proper parties have notice to attend the said master thereon, and be at liberty to propose such guardian or gtiardicms.” — Seton on Decrees, 211; 1 Turner's Pr. pp. 257—8. The term Belations is said to mean, those who would if he died intestate, be entitled to a distributive share of the infant’s estate.—Hoffman's Master in Chancery, 131; Wright v. Atkyns, 1 Turner & Russ. 143; 4 Kent Com. 537, note a. The common law rule concerning guardianship in socage which •would not allow an heir-at-law to be guardian, has been repudiated by the Court of Chancery as leading to cruel and unnatural results, and is deservedly condemned by Chancellor Kent, who shows how under our American system of descents the mischief of it would be greater even than in England, where heirship is in general confined to a single person. — 2 Kent's Com. 223. And the rule never excluded those entitled under the statute of distribution.—Ex parte Ludlow, 2 P. Wms. 638. See also upon the general doctrine, Livingston's Case, 1 Johns. Ch. 436 ; Dormer's case, 2 P. Wms. 262; Morehouse v. Cooke, Hopk. Ch. 226.

The practice of excepting to the report in these cases has not prevailed, but it is stated by Mr. Daniell that any person interested may present a petition to have the report referred back. — Dan. Ch. Pr. 2081. No cases have¡ come under our observation showing by what persons these objections maybe taken, but it would, seem that the next of kin are authorized to do so.' — Dan. Ch. Pr. 1493. Those who do not intermeddle cannot be considered as parties to the controversy, but it is very plain that all who choose to urge claims to appointment as petitioners or applicants for themselves or others, must be so regarded. — Teynham v. Lennard, 4 Bro. P. C. 302. It was remarked by Lord Commissioner Gilbert, in Eyre v. Countess of Shaftsbury, 2 P. Wms. 103; “ There are often disputes who are the next of kin, or ,who is the proper guardian. That must be determined somewhere; and where can it be determined but in this Court, where all persons under disability are protected.”

It is apparent that if there are not some persons besides the infant who have an absolute right to present their views concerning the guardianship, his interests will often be at the mercy of persons by no means calculated to protect him. And when the settled practice requires certain persons to be at liberty to appear before the master, and requires him to ascertain and report who are the infant’s relations, it must be for some useful purpose,’ and not to preclude them from intervening. Mr. Hoffman evidently understood the English practice as providing for such intervention, and he expresses regret that the New York rules had not expressly required the same precautions adopted in England. — Hoffman's Master in Ch. 131, 132.

The case of Morehouse v. Cooke, Hopk. Ch. 226, is the only case we have been able to discover, in which a statute like ours, so far as the original right of appointment is concerned, has received construction. In that case a guardian had been appointed on an ex parte hearing, without notice to the relations. One of these relatives, who had not appeared before the surrogate, appealed to the Court of Chancery. The chancellor sustained the appeal, censured the surrogate severely for not giving notice, and although the proceedings had been fair, and the guardian was unexceptionable, he removed him and appointed the appellant in his place.

The attention of the Legislature being thus called to the subject, there are now express enactments on the subject in New York, requiring notice to be given, but only to such relatives as the surrogate may direct. This notice was by the Revised Statutes required to be given to all relatives by blood or affinity in the county.- — ■ Underhill v. Dennis, 9 Paige, 206. Such a notice included of course many persons who had no interest as possible distributees, and the amendatory law, while it left the matter somewhat in the surrogate’s discretion, did not confine the notice even to blood relations. The object of such a notice, including so large a range of persons, was mainly to enable him to obtain information concerning the qualifications of candidates and the position of the infant; and it was accordingly held in Kellinger v. Roe, 7 Paige, 362, that such persons resisting an appointment, but not acting as petitioners, were not parties to the appeal, of the unsuccessful applicant whom they had opposed. But in Underhill v. Dennis, 9 Paige, 202, where a person who was not a relative, but with whom the infant had been left by his mother, applied verbally to a surrogate and was refused guardianship, and appealed from a subsequent appointment of a guardian made on a written petition ex parte and without notice, the chancellor entertained the appeal, and reversed the decree as irregular, upon the express ground that notice should have been given to the relatives.

We are entirely satisfied that the next of kin may, if they see fit, make themselves parties to guardianship proceedings, and that when they do so, they may appeal from an adverse decision. And we are therefore of opinion that they may be proper parties to oppose the probate of a testamentary provision appointing guardians. This, of course, gives them no right to oppose it on any ground except that it is not a valid will, as a father’s testamentaiy power cannot be reviewed. Neither does it give them rights to oppose the probate of any instrument not appointing guardians.

The motion must be denied, but under the circumstances we do not deem the plaintiff entitled to costs. We shall be prepared to hear the case in its order on the merits.

The other Justices concurred.