text:
    FRIESENHAN v. MICHIGAN TELEPHONE CO.
    Telephone Companies — Personal Injuries — Wires in Street-Negligence — Contributory Negligence — .Questions for Jury.
    Plaintiff was injured, in the daytime, by driving against a guy wire of a telephone company, which had become loosened, and sagged across the street, by reason of a storm of snow, rain, and sleet. The wire had been in the same condition for five days, and the telephone company claimed it was repairing its line as fast as it could obtain competent workmen. It had no knowledge that this particular wire was down. Held, that the case should have been submitted to the jury to determine the questions of negligence and contributory negligence.
    Error to St. Clair; Thomas, J.
    Submitted April 10, 1903.
    (Docket No. 22.)

    Decided September 15, 1903.
    Case by Mathew Friesenhan against the Michigan Telephone Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      George G. Moore (Gyrus A. Hovey, of counsel), for appellant.

      Lincoln Avery (Avery Bros. & Walsh, of counsel), for appellee.
   Hooker, C. J.

The map accompanying this opinion will show the situation of defendant’s wires, which extended along Water street in Port Huron. It is noticeable that Water street is not straight. From the elbow shown on the map, it extends west, and in erecting the wires it was deemed prudent to stay the pole west of the elbow, to prevent it from being drawn over to the west by the weight of the wires to the west of it, thereby

occasioning sagging. This stay consisted of a guy wire, fastened near the top of the westerly pole, and extending to the pole southeast of the elbqw, and fastened about 10 feet above the ground. The poles were set just outside of the curb line, between the sidewalk and the curb, and the effect was to cause the guy wire to cross above the pavement.

The plaintiff, a milkman, was driving in his wagon, when his horse drew the wagon against the wire, and injured him. This was on Friday, in the daytime, and the wire had then sagged within a few feet of the ground. The defendant showed that on the previous Sunday asevere storm of snow, sleet, and rain, accompanied by wind and freezing weather, set in, and continued for 30 hours; that it was exceptionally severe, and very destructive to the poles and wires of telegraph, telephone, and electric-lighting systems, many poles and wires being broken, twisted, and down all over the city of Port Huron, as well as other cities, to the great danger of the public; that the streets were blocked with snow, and poles and wires covered with ice; and that the sagging of this guy wire was due to this cause. It was shown that defendant set its men at work repairing damages at once where it considered the danger the greatest, and procured what help it could, in addition to its regular force, but had difficulty in finding men who were competent, in view of the condition of wires about the State causing an unusual demand, and from the danger arising from the crossing of wires with others carrying high currents. The defendant had no notice of the sagging of this particular wire, which was one of many of its wires affected by the storm. The circuit judge directed a verdict for the defendant.

We are of the opinion that, under the evidence contained in the record, the case should have gone to the jury upon the question of defendant’s negligence and plaintiff’s contributory negligence.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    LEMON v. McBRIDE.
    Trover — Evidence—Chattel Mortgages — Foreclosure.
    Plaintiff brought an action of trover for tools which he had mortgaged to defendant, claiming that the latter received them under an agreement permitting a year for redemption, and that the amount due was within the year tendered and refused. Defendant claimed that the mortgage was foreclosed; that he offered to sell the tools back to plaintiff for less than the amount due upon the mortgage, which was refused; that the alleged tender was insufficient; and that, before it was made, he had sold some of the tools. Held:

    (1) That a charge withdrawing all questions from the jury except the amount of damages was error.
    (2) That plaintiff might be asked on cross-examination to identify certain of the tools, and to state their value.
    (3) That it was competent to show that plaintiff endeavored to buy the tools back from defendant, and that defendant offered them for less than the amount due on the mortgage.
    Error, to Shiawassee; Smith, J.
    Submitted April 24, 1903.
    (Docket No. 58.)
    Decided September 15, 1903.
    Trover by Joseph N. Lemon against James McBride. From a judgment for plaintiff, defendant brings error.
    Reversed.

      A. L. Chandler, for appellant.

      John T. McCurdy, for appellee.
   Moore, J.

■ This is an action of trover commenced in justice’s court, and afterwards appealed to the circuit court, where plaintiff obtained judgment. There are upwards of 70 assignments of error.

The plaintiff was at one time the owner of a quantity of blacksmith tools, upon which he gave to the defendant a chattel mortgage in the sum of $27. Foreclosure proceedings were commenced, and it is the claim of plaintiff that, before sale, he arranged with the defendant that the latter might take eharge of the tools, and the plaintiff was to have a year therefrom in which to pay the amount due upon the mortgage; that, before the year was up, he tendered the amount due, which tender was refused. It was the claim of the defendant that the chattel mortgage was foreclosed; that he became the purchaser; that plaintiff acquiesced in the sale; that the tools were not worth to exceed the amount of the debt; that, before the alleged tender, he had offered to sell the tools back to the plaintiff for $25; that plaintiff declined this offer, and, after he had done so, defendant sold some of the tools to other persons, and for that reason could not let plaintiff have them when he made his tender. He also claimed that, upon plaintiff’s own theory, the alleged tender was not sufficient, as it included nothing for the expenses of caring for the tools.

The judge charged the jury the only question for them was the measure of damages. In this we think he erred, in view of the claim of defendant.

The plaintiff was sworn on his own behalf, and testified the tools were worth $185. On the cross-examination counsel sought to have the plaintiff identify certain tools which were shown him, and to learn from him what value he placed on those tools; claiming they were part of the tools taken by defendant. He was not allowed to do so. We think this was proper cross-examination, and should have been allowed.

The defendant also sought to show that, through the agency of his sister, plaintiff negotiated for a purchase of the tools, and that defendant offered to take $25 for them, and that this occurred after the alleged foreclosure and before the alleged tender. We think this was competent testimony as bearing, not only, upon the value of the tools, but upon the truth of the claim of plaintiff that the mortgage was not foreclosed, and that the time of -payment had been extended in his favor for a year.

The questions involved in the case are simple, but for some reason a good deal of friction was developed between counsel, and between the court and counsel, which it would seem might be avoided.

We do not deem it necessary to refer further to the other assignments of error. They are either not well taken, or are such as will not occur again.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, C. J.

text:
    STORRIE v. GRAND TRUNK ELEVATOR CO.
    1. Injury to Employe — Contributory Negligence — Evidence— Opinions.
    Where defendant claimed that its employe was negligent in going under a certain gate in a grain elevator building, and plaintiff claimed that the successful operation of the elevator required his presence there, the opinions of experienced workmen- as to whether, in the ordinary course of his duties, it was necessary and proper for him to go there, were competent.
    2. Same — Machinery—Duty to Repair — Evidence—Harmless Error.
    In an action for the negligent killing of an employé by the falling of a gate, an answer of a witness that it was the duty of the superintendent to keep the gate in repair was not prejudicial error, as the important question was whether it was the duty of the intestate; if not, it was the duty of the master, and might be performed by the superintendent or any other person.
    3. Evidence — Former Trial — Misconduct of Jury.
    Where a plug, a part of a gate, was shown to have been in its place when brought into court on a former trial, and plaintiff’s counsel conceded it was taken out about the time it was sent to the jury-room, and it was identified on the last trial, it was not error to refuse to allow defendant to show that it was removed by the former jury.

      4. Evidence — Agents — Matters Within Knowledge op Decedent.
    . Testimony by the superintendent of a factory, relating to the circumstances of the accidental death of an employé, of which he was a passive spectator, should not be excluded as equally within the knowledge of the deceased.
    5. Same.
    Testimony by the superintendent of a factory, relating to warnings and directions given by him to an employé who was killed, should be excluded as being equally within the knowledge of the deceased.
    6. Negligence — Causing Death — Right op Action.
    An action for causing the death of a person by wrongful act, neglect, or default cannot be maintained under the statute (3 Comp. Laws, §§ 10427, 10428) where the death was not instantaneous.
    Error to St. Clair; Whipple, J.
    Submitted May 14, 1903.
    (Docket No. 67.)
    Decided September 15, 1903.
    Case by Flora Storrie, administratrix of the estate of James Storrie, deceased, against the Grand Trunk Elevator Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Herman W. Stevens and John G. Graham, for appellant.

      George G. Moore and John L. Blade, for appellee.
   Hooker, C. J.

The plaintiff’s husband was severely injured at the defendant’s elevator, and died two months later. This action is brought by his widow as administratrix.

At the elevator the defendant had an apparatus for unloading grain from vessels. The building was three feet from the edge of the dock. The grain was raised through a leg, which extended from the upper stories of the elevator into the hold of the vessel. Grain was brought to the end of the leg in the hold by the use of large shovels drawn by ropes, which were wound upon drums in the front part of the lower story of the elevator. There were two shovels, the lines to each winding upon such a drum, which thus drew the shovel full of grain. By reverse action the shovel was drawn back empty, the lines being unwound as they were wound upon other drums. These lines extended from the elevator to the boats through a high and wide door in the first story of the elevator, upon each side of which large door was an ordinary door for ingress and egress to and from the elevator. The space in front of the drums was barred by large levers, one on each side of the large door, which set the respective drums in motion through the contact of a friction wheel. In the large door was a gate, made of heavy timbers, with rollers, over which rollers the lines passed, and by raising or lowering the gate, according to the height of the boat, the lines were properly adjusted to work without friction. It is obvious that the strain on the rollers, and consequently upon the gate, was considerable. The gate was suspended to a pulley, used to raise or lower it, by an eyebolt passed through the top timber or head of the gate, and on the occasion of the accident this eyebolt pulled out, letting the gate fall, and Storrie, who stood under it, was crushed.

The defendant claims that a verdict should have been directed against the plaintiff upon the ground of Storrie’s contributory negligence in. standing under the gate, which it claims was an unsafe place, and that it was unnecessary for him to go there. It also asserts that Storrie fixed the gate and adjusted the ropes, and had an opportunity to see, when it was suspended, that the eyebolt was loose, and had pulled up an inch or two. The gate was made of heavy timbers, two horizontal, constituting the top and bottom, connected with three perpendicular cross-pieces, mortised into the top and bottom. The middle cross-piece was immediately under the eyebolt, and a slot was cut into it to accommodate the nut on the end of the bolt, and a washer, which should have been, but was not, used above the nut. The slot was filled by a block, which, when in. place, would conceal the nut, and washer. It is manifest that, if the nut was pulled up into the wood, the eyebolt would become loose, and that, if it became loose, it must be due to one of two causes, viz., such pulling of the nut into the wood, or the loosening of the bolt from the turning of the nut, which one familiar with the construction would ordinarily know. The accompanying diagrams show the construction; also a break in the upper horizontal bar of the gate. This crack had been discovered, and the bar had been strengthened by spiking some 2x12 pieces upon the sides. This concealed the crack.

It was claimed by the defendant that James Storrie had worked for many years as foreman of the steam shovel gang at this elevator, and in making necessary repairs, and doing other work about the elevator; that he was well acquainted with the machinery, the operation of which it was his duty to oversee, including the oiling of the machinery, and its adjustment to the boat to be unloaded. The defendant insists that Storrie was negligent in going under the gate, and that he had no occasion to go in front of the drums or gate, between the levers, which he would have to stoop and go under the levers to do; while the plaintiff claims that it was necessary for him to go there, to see that the lines did not become tangled or “fouled.” The defendant claims that Storrie built this gate, and put in the eyebolt and nut himself, about a year before the accident, neglecting to put on a washer, but for which the nut would not have pulled up into the wood. He then put in the plug and painted the gate. It is said that he was the only person who knew of the absence of a washer, that he knew all about the construction and strain upon the gate, and, being competent to inspect it, and being at work when it was repaired, and knowing that he was to act as foreman, he made no complaint about its being insecure, and on the day of the accident — being after the repairs were made — he oiled the gearing, and put the machinery in readiness for work, and should have discovered the defect. Just before the accident he took an oil can, stooped down

and went under tbe lever, and entered between the gate and the drums, and, as he stepped under the gate, the eyebolt pulled out, with the nut upon it, and the heavy gate fell upon him. He lived two months, retaining consciousness. The defendant brings error upon a judgment for plaintiff of $8,000.

‘ ‘ The negligence charged was the failure of defendant to inspect the gate, and to see that the head of the gate through which the eyebolt passed was not decayed, or rotted, broken, or splintered.” The plaintiff claims that the gate was taken down for repairs about six weeks before the accident by one Bennett and four carpenters. It was found that the head piece was cracked, and that the ring-bolt had worked up two inches into the wood. The only repair made was the spiking on of the two planks to strengthen the head piece. That Storrie had nothing to do except in the capacity of foreman of the shovel gang,— nothing to do in the line of his work about the elevator except to properly superintend the unloading of cargoes.

The questions discussed in the briefs of counsel relate:

(1) To the admission of opinion evidence as to the propriety of Storrie’s being in front of the drums;' i. e., whether it was necessary, and in the line of his duty.

(2) To the admission of the testimony of witnesses that it was the duty of one Burke to keep the gate in repair.

(3) To the exclusion of evidence of the loss of the plug, upon the former trial, through its being sent to the jury-room.

(4) To the exclusion of the testimony of Burke, the superintendent of the elevator, on subjects equally within the knowledge of Storrie.

(5) To the rule of damages followed in the case.

Opinion Evidence. It was claimed that Storrie was guilty of contributory negligence in going under the gate. Defendant insists that this is a self-evident proposition, and that it necessarily follows from the undisputed facts. The plaintiff urges quite as strenuously that the successful operation of the machine required his presence there, to see that the ropes “did not foul,” and evidence was given pro and con upon that point. Three witnesses were allowed to give their opinions as to the necessity of his going in front of the drums and under the gate, the court holding that it was proper to show the duties of a foreman by competent witnesses. They were also allowed to show the opinions that under the gate was the safest place in front of the drums. This question arose by reason of defendant’s claim that it was negligence per se for the foreman to go there. These witnesses did not assume to say whether it was necessary for Storrie to be there on this occasion, but only that, in the ordinary course of his duties, it was a necessary and proper thing for him to do so. We are of the opinion that it was competent for these witnesses to express their opinions as to the necessity or expediency of entering in front of the drums or under the gate, it appearing that they, were acquainted with the premises and work, having first stated the conditions and circumstances showing their knowledge, and upon which the opinion was based. It follows that the question of contributory negligence was for the jury.

Duty to Keep the Grate in Repair. Defendant complains that one'McFarland was allowed to testify that “he would think it was Burke’s duty to keep the gate in repair.” Upon defendant’s theory this was immaterial, because Storrie was charged with inspecting and repairing; but this was not conceded, and plaintiff’s claim is that Storrie was called upon to operate the machinery, and not to inspect or repair it. There was no exception to this question, and, if there had been, it was not especially injurious, for the witness testified that it was no part of the foreman’s duty, and, if not, it was the master’s, and hence whether it was imposed upon Burke, the superintendent, or some one else would make no difference. The important question was whether it was Storrie’s duty or not, and the witness said it was not.

Misconduct of Former Jury. Defendant’s counsel urge that they should have been allowed to show that the former jury had removed the plug from the gate. It was shown that the plug was in its place when the gate was brought into court on the former trial, and counsel for plaintiff conceded that it was taken out about the time the gate was taken into the jury-room. The plug was identified upon the last trial, and we see no reason for reversing the case upon this ground.

Burke’s Testimony. Defendant’s superintendent, Burke, was asked, “Who had the looking after the fixing of the gate ? ” 'It also sought to prove by him that Storrie assisted in the last repairs by his direction; also that he had cautioned Storrie about standing under the gate. Defendant also sought to show the circumstances of Storrie’s entrance under the gate. All of this testimony was excluded or stricken out upon plaintiff’s claim that the circumstances were equally within the knowledge of the deceased. In the case of Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358), it was held that the effect of this statute should be restricted to the exclusion of the testimony of such agents only as are authorized to act for the company in the matter with reference to which testimony is given. Applying this rule, it is plain that the superintendent was authorized to act for the company in warning Storrie not to go under the gate. The same is true of his direction to Storrie to take down and repair the gate; but his testimony relating to the circumstances of an accident, of which he was merely a passive spectator, and in which no act of his own as agent was involved, would not be excluded. Such testimony was admissible, and the ruling that he could testify to no fact equally within the knowledge of the deceased was too broad.

The Rule of Damages. The various decisions of this court following the case of Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629), and especially Jones v. McMillan, 129 Mich. 86 (88 N. W. 206), show that the only right of action that the administratrix had was under the act providing for the survival of actions, whereas this action was prosecuted and recovery had under the death act. It was tried, and the motion for new trial was made, before the Case of Colson was decided. Hence this question was not presented to the trial court, and ordinarily the question would not be considered here for that reason. As the case must be reversed for the ruling in relation to- Burke’s testimony, it is unnecessary to discuss the question of remedy or damages further.

The other Justices concurred.


text:
    BLOODGOOD v. TERRY.
    Contracts — Trusts—Life Estate — Income.
    An. instrument selling and agreeing to transfer certain bank stock and other property on the following condition, viz., “that I am to have the income of said stocks” and other property “during my natural life, and after my decease the said stocks” and other property, “and all income arising therefrom, are to be the property of ” the assignee, did not convey or'agree to convey the income of the property.
    Appeal from Monroe; Chester, J., presiding.
    Submitted May 14, 1903.
    (Docket No. 77.)
    Decided September 15, 1903.
    Bill by Lynott Bloodgood, individually and as administrator of the estate of Eliza T. Bloodgood, deceased, Louise Bloodgood, and Ruth D. Bloodgood, against Milton G. Terry, individually and as executor of the last will and testament of Louisa P. Terry, deceased, to establish a trust and for an accounting. From a decree for complainants, defendant appeals.
    Reversed.

      George M. Landon (Fred A. Baker, of counsel), for complainants.

      C. A. Golden and E. B. Gilday, for defendant.
   Moore, J.

The bill was filed to establish a trust and for an accounting. Louisa P. Terry, deceased, was the mother of appellant and grandmother of complainants, the children of Eliza T. Bloodgood, deceased, who was the only sister of appellant. The circuit judge held that, by virtue of two instruments (which will be referred to later), Louisa P. Terry became and was a trustee of Eliza T. Bloodgood and her heirs, and held the légal title to all the property in said instruments described and mentioned, and of all the income and accumulations thereof not expended by her in her lifetime, in trust for the use and benefit of said Eliza T. Bloodgood and her heirs, to be delivered and paid to them on her decease, and that her executor should be compelled to account therefor. From that decree the defendant has appealed.

The record discloses that Mr. Harvey Terry, the husband of Louisa P. Terry, was a resident of Connecticut; that he died prior to 1858, leaving a will, by which he gave to bis wife five acres of land and a life interest in the home lot, containing about seven acres. He also gave to her absolutely the household furniture and other personal property, including 11 shares of stock in one bank, and 9 shares of stock in another. He gave to his only daughter, Eliza, who, prior to October, 1858, became Mrs. Blood-good, the privilege of a home in the homestead as long as she remained unmarried, his melodeon, and 10 shares of bank stock. He gave all the rest of his estate to his son, Milton G-. Terry, the defendant.

In October, 1858, Mrs. Terry executed and delivered to her daughter an instrument reading as follows:

“ In consideration of natural affection, and of one dollar to me paid, which I hereby acknowledge paid, I, Louisa P. Terry, of Enfield, Conn., do hereby sell, -assign, and agree to transfer to my daughter, Eliza, the wife of Rev. A. L. Bloodgood, of the same place, the following described stocks, and all my right, title, and interest to and in the same, subject, however, to the condition hereinafter specified, to wit: Eleven shares of the capital stock of the John Hancock Bank of Springfield, Massachusetts, amounting to eleven hundred dollars, the certificate thereof being No. 497, bearing date of July 14th, 1858, made to Louisa Terry (which should have been written Louisa P. Terry), of Enfield, Conn., and signed by J. W. Thompson, president, and E. D. Chapin, cashier.
“Also nine shares of the capital stock of the Western Bank of Springfield, Massachusetts, in two certificates, one of seven shares, of number 341, bearing date of January 1st, 1857, made to H. Terry, of Enfield, Conn., and signed by C. Rice, president, and Gr. P. Bissell, cashier, and one certificate of two shares, of number 462, bearing date of October 9th, 1851, made to Harvey Terry, of En-field, Conn., and signed by C. Rice, president, and Gr. P. Bissell, cashier.
“And also, in consideration of affection, and of one dollar to me paid, which I hereby acknowledge paid, do I hereby sell, assign, and agree to transfer to my daughter, Eliza, the wife of said Rev. A. L. Bloodgood, all of my right, title, and interest in the estate left by my father,. Elisha Parsons, deceased, subject to the use of my mother, Louisa Parsons, during her natural life, and whatever shall be coming to mé from my said father’s estate at the death of my mother.
“ The condition alluded to above is this, to wit: That I am to have the income of said stocks mentioned above, and also the income accruing from my said father’s estate to me upon the death of my mother, during my natural life. And after my decease, the said stocks, and all of my interests in the estate of my father, Elisha Parsons, both by will as well as purchase made of my sister, Mrs. Amelia Chapin, since my father’s death, and all income arising therefrom, are to be the property of my said daughter, Eliza, her heirs and assigns, forever.
“ Witness my hand and seal this seventh day of October, 1858.
“Louisa P. Terry.”

August 10, 1859, Mrs. Terry delivered to her daughter an instrument. The parts material to this controversy read as follows:

“ The last will and testament of L. P. Terry.
“I, Louisa P. Terry, of the town of Enfield, county of Hartford, State of Connecticut, being of sound mind and memory, but mindful of the uncertainty of all human events, do ordain this, my last will and testament, in the following words, to wit: My late deceased husband, prior to his death, and myself, having given in a will to our son, Milton G. Terry, his full and entire share of all our properties owned or. coming to üs, and not having given our daughter, Eliza, her just and equal share, but having been requested by my husband so to do after his decease, do therefore, in order to- make such just distribution, give, devise, and bequeath to my said and only daughter, Eliza, the wife of the Rev. A. L. Bloodgood, of Enfield, Connecticut, and to her heirs and assigns, forever, the following described stocks, and all my right, title, and interest to and in the same, to wit.”

Then follows a description of the bank stock mentioned in the instrument of October 7, 1858.

“And I also give, devise, and bequeath to my said daughter, Eliza, the wife of the said Rev. A. L. Blood-good, all of my right, title, and interest in the estate left by my father, Elisha Parsons, deceased, subject to the use of my mother, Louisa Parsons, during her natural life, and whatever shall be coming to me from my said father’s estate at the death of my mother, Louisa Parsons, including, also, whatever shall come to me of the purchase of my sister Amelia Chapin’s portion, made since my father’s death; intending to make my daughter, Eliza, my sole legatee after my death.
“Louisa P. Terry. [Seal.]”

Attached to this instrument was the following:

“ Having received all that should justly come to me of my father’s or mother’s property, I certify to the above as justly due to my sister, Eliza, now Mrs. A. L. Bloodgood, and therefore renounce all interest, right, or title whatever in the same, forever.
“Milton G. Terry.
“August 10, 1859.”

Mrs. Bloodgood, the daughter, died in October, 1888, leaving complainants her only heirs at law. It was the two instruments mentioned above which the circuit judge held constituted a trust.

A further statement seems necessary to an understanding of the case. It is the claim of defendant, and there is testimony tending to sustain it, that, after the death of Harvey Terry, defendant and his mother continued to live on the homestead in Connecticut for eight years; that he improved the farm, greatly increasing its value; and that, from the income from the farm and the $1,100 stock in the John Hancock Bank, his mother bought from $1,500 to $2,000 worth of United States bonds. It is his claim that in 1865 the defendant and his mother sold the real estate in Connecticut for the sum of $8,000; that of the real estate so sold the defendant owned 27 acres, and the fee to the home subject to the mother’s life estate, and the mother owned, in addition to her life estate in the home lot, 5 acres of land in fee; that the defendant and his mother then moved to the city of Monroe, Mich., and invested between $6,400 and $6,700 in a home in said city, the title to which was taken in the mother’s name; that the balance of the $8,000 was given to the mother, who kept it invested till the time of her death.

Mrs. Terry died in December, 1901, at the age of 93 years and 5 months. At the time of her death her estate inventoried $8,225. During her lifetime she assigned to defendant mortgages aggregating $2,000. On August 10, 1889, she made her last will, by the terms of which she gave to complainants ‘ ‘ eleven shares of the capital stock of the John Hancock National Bank of Springfield, Mass., with all interest and dividends thereon that may be unpaid at the time of my decease;” and, further:

“I give and bequeath [to complainants] the sum of nineteen hundred dollars, to be divided between them, share and share alike, and to be paid to them within one year after my decease, with interest from and after my decease until so paid. The nineteen hundred dollars so above bequeathed is the full amount and sum I received and realized from the nine shares of the stock of the Western Bank, Springfield, Mass., and from my father’s estate, and from the purchase from my sister, Amelia Chapin, and this, with the eleven shares of the bank stock of the John Hancock National Bank, is in compliance with and discharge of the agreement heretofore made with my daughter, Eliza Bloodgoo'd, now deceased, the mother of my said grandchildren, the beneficiaries above named,-”

It also gave to the complainants the wearing apparel and personal ornaments, silver and china ware, etc., of the deceased. This will was duly admitted to probate.

On the part of defendant it is claimed that the paper of October 7, 1858, was not a transfer of property, but at most was but an agreement to transfer at some future time, and was without" consideration, and revocable; that the parties so construed it when Mrs. Terry made the will in 1859. In our view of the case, we do not deem it necessary to decide this contention. Giving the instrument of October 7, 1858, the fullest effect, we think it-conveys to Mrs. Bloodgood and her heirs the property described therein, reserving to Mrs. Terry the income therefrom as long as she lived. There is no ambiguity in the language used. This, too, was the construction put upon it by the parties. Mrs. Terry lived nearly 44 years after the delivery of the paper of October, 1858. During that time no one asked her for the unexpended portion of the income. Thirty-one years after making the paper she gave her understanding of the transaction by the making of the will which was admitted to probate. We think the circuit judge erred in the construction he gave to the language employed by Mrs. Terry. It is not questioned that the will which was admitted to probate accounts for the proceeds of all the property mentioned in the paper of October, 1858, exclusive of the income therefrom during the life of Mrs. Terry. It follows that there was no occasion for filing the bill of complaint.

The decree is reversed, and one will be entered here dismissing the bill of complaint, with costs of both courts to the defendant.

The other Justices concurred.


text:
    STRACK v. MILLER.
    Drains — Application—Equity Jurisdiction.
    Where a. drain, commissioner, acting upon an insufficient application, has only examined the proposed improvement, and made his first order of determination, under 2 Comp. Laws, § 4320, a court of chancery will not restrain the proceedings, as the statute affords an adequate remedy.
    Appeal from Monroe; Lockwood, J.
    Submitted May 15, 1903.
    (Docket No. 90.)
    Decided September 15, 1903.
    Bill by William Strack against John B. Miller, drain commissioner of Monroe county, to enjoin the construction of a drain. From a decree for complainant, defendant appeals.
    Reversed.

      IS. B. Gilday, for complainant.

      Willis Baldwin, for defendant.
   Moore, J.

The bill was filed in this case to enjoin defendant from laying out and constructing a new drain on complainant’s lands, on the ground that the petition gave him no jurisdiction to act, because the statute (chapter 3, § 1, of the drain laws), as amended in 1899 (Pub. Acts 1899, Act No. 272), requires five of the ten freeholders who signed the application to be owners of land liable to an assessment for benefits in the construction of said drain, while only four of the signers were so liable, and because there was no drain or watercourse on thedand of complainant, where defendant was seeking to lay one out. Defendant in his answer claims the petition asked him to deepen and widen an existing drain, and was governed by section 4379, 2 Comp. Laws, which requires for the deepening and widening of an existing drain that the petition need be signed. by only five freeholders, one or more of whom shall be owners of land liable to an assessment for benefits in the cleaning out, and that four of the signers were so liable. Defendant further claimed in his answer that at the time there existed across the lands of complainant an old drain, laid out and established in 1876 by the town drain commissioner, which was the drain he proposed to deepen and widen. The answer also contained a demurrer to the bill for the following reasons:

1. Because the bill does not state a cause of action.

2. Because the probate court was the forum to ascertain complainant’s damages, if any.

3. Because, if complainant suffered damage, the same should be ascertained in the statutory method.

4. Because the commissioner had not made his final order upon the drain, nor in any way signified his intention of entering complainant’s premises.

The court heard the cáse upon the merits, and found from the evidence that no drain and no natural watercourse existed across complainant’s land on the line described in the petition under which the commissioner was acting, and, as five or more of the petitioners did not own land liable to an assessment for benefits, he was acting without authority, and a decree was granted as asked for by the complainant. From this decree defendant has appealed.

We think the disposition of one question should dispose of the case, and that question is, Should the chancery court take jurisdiction under the facts disclosed by the record? All that had been done by the drain commissioner when the bill was filed was to receive a petition asking for the deepening and widening of a drain, after which he examined the proposed improvement, and made his first order of determination, as provided by section 4320, 2 Comp. Laws. The bill does not allege, nor the proofs show, he had committed or threatened any act of trespass. Doubtless his next step would have been to make application to the probate court for the appointment of special commissioners or a jury. Section 4323, 2 Comp. Laws, requires the court to make an examination of the proceedings and of their regularity, and requires notices to be given of the time and place of hearing. Section 4325, 2 Comp. Laws, provides that all persons interested shall be heard, and allows certain amendments to be made, if the application to establish the drain is shown to be sufficient under the statute. Section 4345 provides for an appeal, and section 4346 provides for a review of the proceedings upon certiorari. The purpose of the statute undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity. If the complainant had sworn to the probate court that the application was fatally defective, the proceeding could have then been ended. The same result could have been reached before a board of review. This could have been accomplished without so much delay and expense as is involved in a chancery proceeding. This court has repeatedly construed the provision of section 4346 which provides for a review of these proceedings upon certiorari. See Township of Whiteford v. Monroe Probate Judge, 53 Mich. 130 (18 N. W. 593); Bettis v. Lenawee Probate Judge, 54 Mich. 608 (20 N. W. 608); Campau v. Charbeneau, 105 Mich. 422 (63 N. W. 435); Brady v. Hayward, 114 Mich. 326 (72 N. W. 233); Township of Swan Greek v. Brown, 130 Mich. 382 (90 N. W. 38). No such case was stated in the bill of complaint or shown by the proofs as to call for the interposition of a court of equity.

Decree is reversed, and bill of complaint dismissed.

The other Justices concurred.


author: Carpenter,. J.

text:
    KOTILA v. HOUGHTON COUNTY STREET-RAILWAY CO.

    1. Street Railways — Injuries to Animals — Negligence — Contributory Negligence.
    A person who was guilty of negligence in permitting his cow to be at large cannot recover damages for the killing of the cow by an electric car, in the absence of evidence that the motorman, after he discovered, or by the exercise of due care should have discovered, that the cow was in a position of danger, could, by the use of the appliances at hand, have stopped the car, or so checked its speed as to prevent the injury.

    3. Same — Presumptions—Stopping Car.
    A jury cannot assume, in the absence of evidence on the subject, that an electric car, going down grade at a great rate of speed, could have been stopped in 150 feet with the ordinary appliances.
    Error to Houghton; Streeter, J.
    Submitted May 15, 1903.
    (Docket No. 81.)
    Decided September 15, 1903.
    Case by John L. Kotila against the Houghton'County Street-Railway Company for the negligent'killing of a cow. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Gray, Haire & Rice, for appellant.

      W. A. Burritt, for- appellee.

       Applications for rehearing denied October 37, 1903, and January 5, 1904.

       As bearing upon a plaintiff’s right to recover notwithstanding his negligence, see Sosnofski v. Railway Co., ante, 72; Labarge v. Railroad Co., ante, 139.

   Carpenter,. J.

A cow belonging to the plaintiff was struck by a car operated by defendant, and killed. Plaintiff recovered a judgment of $65 in the court below. The case was tried by plaintiff upon the theory that he was himself guilty of negligence in permitting his cow to be at large. He was permitted to recover on the theory that 'the negligence of defendant’s motorman was such that he was entitled to a verdict notwithstanding his own negligence. Defendant contends that the evidence did not warrant a recovery on this theory. Plaintiff’s testimony tended to prove that his cow stood on defendant’s track, in plain sight of the approaching car in charge of the motorman, while the car was going 150 feet; that the car was going down grade with great speed; that the speed was not lessened until after the collision; and that the car went nearly 100 feet after it struck the cow before it was stopped. There was no testimony tending to show whether or not the car could have been stopped in this 150 feet under the circumstances, or tending to prove how much its speed could have been checked in that distance by the appliances at hand.

If this had been the case of a collision between the defendant’s car and a person of mature years crossing its track, there would be no opportunity of applying the law which permits plaintiff to recover notwithstanding his own contributory negligence. In such a case, the motorman, as this court has held (see Lyons v. Railway Co., 115 Mich. 114, 73 N. W. 139), would be warranted in acting upon the assumption that the person crossing the track would by due diligence escape injury. When, however, the motorman sees upon the track an animal like plaintiff’s cow, he cannot act upon that assumption. He cannot assume that the animal will use diligence for its own protection. Nevertheless, the motorman cannot be held bound to anticipate danger to such an animal until it has reached, or at least approached, the path of the car. Therefore, in this case, to warrant the jury finding a verdict for the plaintiff notwithstanding his contributory negligence, we think the evidence should have warranted the inference that the motorman, after he discovered, or by the exercise of due care should have discovered, the cow in the position of danger, could, by the use of the applianees at hand, have either stopped the car, or so checked its speed as to prevent the injury which actually occurred. This statement of the law, as applied to this case, is, we think, warranted by the following cases: Richter v. Harper, 95 Mich., at page 225 (54 N. W. 768); Frost v. Railroad Co., 96 Mich. 470 (56 N. W. 19); Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 29 L. R. A. 287); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Lyons V. Railway Co., 115 Mich. 114 (73 N. W. 139); Finnegan v. Railroad Co., 127 Mich. 15 (86 N. W. 395); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262).

Under this rule, no verdict could be rendered for the plaintiff unless the jury could, without testimony to aid them, assume that in going this 150 feet the car could be. stopped, or its speed so checked as to prevent the injury which occurred. Plaintiff’s counsel says in his brief: “It is a matter of common knowledge that an electric car can be stopped within much less than 150 feet.” We cannot agree with this statement. Counsel asked too much when he asked the jury to assume, without any testimony whatever, that this car, going down grade at a great speed, could, by the use of ordinary appliances, be stopped in 150 feet. Clearly, this could not be assumed. Neither could it be assumed that in going that distance the speed of the car could be so checked that the cow would not have received injuries which, so far as damages are concerned, would have been equivalent to its destruction.

The judgment of the court below must therefore be reversed, and a new trial granted.

The other Justices concurred.


text:
    CLAY v. LAYTON.
    1. Gifts — Delivery—Trusts,
    The mere act of executing deeds and assignments of mortgages, and drawing checks upon a banker, which the maker retains in his possession in separate packages, with instructions indorsed thereon that they be delivered after his death, doe§ not constitute a gift, for want of a delivery, nor a trust, for want of a declaration.
    2. Trusts — Declarations—Disposal of Property.
    Statements by a person retaining possession of his property, that he has disposed of it in the way he wants it to go, do not amount to a declaration of a trust, as they are as consistent with the idea that he has made a will as that he is holding the property as a trustee. »
    3. Same — Retention of Title by Donor.
    One who, having so arranged his property in anticipation of death that delivery of the papers according to written instructions is all that is required to be done to distribute it, still retains possession of the papers and property, will not be held to have created a trust for the beneficiaries, where there is nothing in his acts or instructions which indicates an intention that effect shall be given to the papers before his death.
    4. Wills — Execution.
    A writing directing the distribution of a person’s property after his death, which is not executed in conformity to the statute, cannot be considered a will.
    5. Same — Deeds—Intent—Parol Evidence.
    Parol evidence is not admissible to show that a deed, unambiguous on its face, was intended to operate as a will.
    6. Estates of Decedents — Checks—Claims.
    A check upon a bank, delivered to the payee, but not presented to the bank until after the death of the maker, if founded upon a sufficient consideration, may be collected as a claim against the maker’s estate.
    Appeal from Lenawee; Chester, J.
    Submitted June 2, 1903.
    (Docket No. 7.)
    Decided September 15, 1903.

      Bill by Frank W. Clay, administrator of the estate of Abel Whitney, deceased, against Sarah Layton, Sarah A. Kline Frary, and forty-three others, to determine the proper disposition of the property of decedent. From the decree rendered, the above-named defendants appeal.
    Reversed.
    Abel Whitney, a wealthy widower, died at Adrian October 18, 1899, leaving no descendants. His heirs consisted of Sarah Layton, a sister, of Wapakoneta, Ohio, and numerous nephews and nieces residing in Michigan and elsewhere. Soon after Abel Whitney’s death, the complainant was appointed administrator of his estate, upon the petition of Josephine Harris, a niece of the deceased, and he qualified in due form.
    The bill alleges that Abel Whitney said to the complainant on several occasions that he had made distribution of his property as he wanted it distributed, and that he wanted it turned over to the several parties entitled thereto, by the complainant; and that Mrs. Freitag, his housekeeper, had been instructed to hand complainant the keys to a certain cupboard, standing in his library, when he should die, and that he wished complainant to open it, where he would find a tin bos locked with a padlock, the key to which was in the pocket of the vest he then wore. It alleges further that, after the death of Abel Whitney, all transpired as he had stated. Upon opening the bos complainant found sundry large envelopes, which, for convenience, he marked from numbers 1 to 17, inclusive. He also found three other envelopes, directed to himself, which he has marked “A,” “B,” and C.”

      Memoranda upon and contents of envelope No. 1 were as follows: Indorsed:
    “ Deed of the Masonic Temple property to various persons in lieu of anything in my will.
    “A. Whitney.
    “Two-sevenths, Sarah Whitney Layton.
    “ One-seventh, Fanny Berdan.

      “ One-seventh, Dwight A. Whitney.
    “Two-sevenths, children of Mrs. Stevens.
    “One-seventh, Mrs. Ida Kline Frary.”
    Inside: Warranty deed, dated March 9, 189?, from Abel Whitney to Sarah A. Kline Frary one-seventh, Helen Stevens Rhodes one-seventh, Edgar Stevens one-seventb, Fanny W. Berdan one-seventh, Dwight A. Whitney one-seventh, and Sarah W. Layton two-sevenths of the undivided one-fourth part of the Masonic Temple in Adrian. Also the following memorandum:
    “In addition to the inclosed deed, I want each one named in it to have the following sums in money, and. I have made checks for the amounts, to be delivered to them at my death:
    “ Sarah A. Kline Frary, $200.
    “ Helen Stevens Rhodes, widow, $200.
    “Edgar Stevens, brother of Helen, both of Delphos, Ohio, or near there, $200.
    “Fanny Whitney Berdan, of Detroit, $200.
    “ Dwight Whitney, her brother, of Detroit, $200.
    “Sarah Whitney Layton, of Wapakoneta, Ohio, $400.”
    Underneath said memorandum is written in the handwriting of said Whitney:
    “Mr. Clay, or whosoever has these papers, deliver ■'them to the parties at my death, checks and also deed.
    “Abel Whitney.”
    Wrapped in the memoranda were checks upon his banker, drawn by Abel Whitney to the respective persons named for the several sums indicated.
    No. 2. A similar indorsement as to Amelia H. Miller. Contents, a deed and a check.
    No. 3, appropriately indorsed, contained a deed to Frank W. Clay (complainant) and Rial Clay of real estate, in trust for certain minors named therein.
    No. 4. Indorsement: “This is to be handed to the officers of the Oakwood Cemetery Association in case of my death.” On the inside of said envelope was the following memorandum:

      “The inclosed check for $200 is a bequest to the Oak-wood Cemetery Association for the care of my lots in said cemetery, numbers 13, 14, and 15, block 2, I think.
    “April 9th, 1897. ' Abel Whitney.”
    On the inside of said envelope were found two checks on Waldby & Clay’s State Bank, — one dated April 9, 1897 (the same date as the memorandum), payable to the Oak-wood Cemetery Association, or order, for the sum of $200, signed by Abel Whitney; and the other check dated October 7, 1899, for the sum of $500, payable to the order of the treasurer of the Oakwood Cemetery Association, signed by Abel Whitney. Upon the margin of said check is written in the handwriting of said Whitney: “For the perpetual care of his lots, numbers 13,14, and 15, block 2.”
    No. 5 contained a mortgage and an assignment thereof from Abel Whitney to two nieces, living in Kansas.
    No. 6 was similar to No. 5, to Emily J. Van Buskirk, of New Jersey, a niece, as to contents. The envelope was indorsed:
    “Emily Jane Van Buskirk, Passaic, New Jersey, to be sent to her in lieu of anything in my will.
    “A. Whitney.”
    No. 7.was indorsed:
    “Assignments to Charles Whitney, of Rome township, Lenawee county, to be delivered to him at the time of my death.
    “Abel Whitney.”
    Contents, three mortgages, duly assigned.
    No. 8.. Indorsed: “Josephine Whitney Harris and Augusta Whitney Teachout.” Contents, two bonds executed by the city of Coldwater, Michigan, Nos. 40 and 41, for $500 each, inclosed in a wrapper, upon which is written in the handwriting of said Abel Whitney the following memorandum:
    “Ithaca school bond, No. 29, to Mrs. Friday, $500, with her papers, — Schwick mortgage, etc.
    “A. Whitney.”

      Also the following memorandum:
    “A corresponding bond to above No. 29, No. 28, for $500, I give to Fanny Lee Berdan, daughter of my late brother William A. Whitney, under the same instructions to any one handling my matters, and have placed the said bond under an envelope covering the F. J. Kuhlman mortgage. This bond is under envelope with F. J. Kuhlman mortgage assignment. Cold water school bond No. 40 I give and bequeath to Augusta W. Teachout, and a like bond, No. 41, I give and bequeath to Josephine W. Harris, both children of my late brother Russell Whitney, to be delivered to them immediately after my death, now in envelope with deed of part of my residence property.
    “ Dated January 27, 1899. Adrian, Michigan.
    “A. Whitney.”
    No. 9. Indorsed: “Assignment of Weaver mortgage to Charles Herbert Whitney and brother, four sisters, six persons in all.” Contents, a mortgage for $3,000, duly assigned to persons named on March 23, 1897.
    No. 10. Indorsed to persons named. Contents, assignment of mortgage, March 23, 1897.
    No. 11. Indorsement as above. Contents, assignment of mortgage, same date.
    No. 12. Indorsed:
    “Wyman Stanton mortgage, to be sent to Sarah E. Fárnham, daughter of Alfred W. Budlong, now deceased. Her residence is Passaic, New Jersey; also check inclosed.
    “A. Whitney.”
    Contents, assignment of mortgage; also a check to person named, $500.
    No. 13. Indorsed: “Charles Wilbee, Esq., Adrian, Mich.” Contents, assignment of mortgage, February 13, 1897.
    No. 14. Indorsement similar to others. Contents, assignment of mortgage, March 16, 1897.
    No. 15. Indorsement: “Louis Krigger and wife mortgage, assignment to Mary (Waller) Bohn, $100.” Also the following memorandum:

      “Mary Waller Bohn, Adrian, Michigan. At my death, whosoever has charge of my matters, hand this to Mary Bohn.
    “A. Whitney.”
    Contents: On the inside of said envelope was an assignment, which had been executed by said Abel Whitney, with an express consideration of $100, to Mary Waller Bohn, of the same place, of a mortgage made by Louis Krigger and wife to Almira Budlong, purporting to have been executed on the 13th day of February, 1897, in the presence of Rial Clay and G. N. Jones, and on the same day duly acknowledged before Rial Clay, notary public. The signature that had been written to said assignment had been subsequently cut out, as appears by said written assignment. There was also found within said envelope the following memorandum:
    - “This mortgage was assigned to Mary Waller Bohn, but soon after Mr. Krigger paid it. I therefore make my check payable to her, so in case of my death she can get the money-that was paid on the mortgage as principal, viz., $100.
    “A. Whitney.”
    Within said envelope was also found a check, dated April 6, 1897, oñ Waldby & Clay’s Bank, made by said Abel Whitney, payable to Mary Waller Bohn, or order, for the sum of $100.
    No. 16. Indorsement: “For Fanny Whitney Berdan, of Detroit. ” Contents, two municipal bonds, school district No. 1,’ townships of Ithaca, Star, Arcada, Newark, and Emerson, one for $500 and the other for $400; also the following memorandum:
    ‘ T give and bequeath unto Fanny Lee Berdan, daughter of my late brother William A. Whitney, Ithaca county school bond No. 28, for $500, which bond is herewith inclosed, due in 1902, together with coupons for the same, to be handed to her at my death, without further ceremony, "by whosoever has charge of my estate.
    “January 27th, 1899. A. Whitney.”
    Also the further memorandum:

      “ I here add bond No. 30, herewith inclosed, $400, to be delivered to her in like manner as the $500 bond above described.
    “A. Whitney.”
    No. 17. Indorsement:
    “Note of S. N. Dada, to be sent or given to him at my death.
    “A. Whitney.”
    Contents, another envelope, with the following memoranda upon it in the handwriting of said Whitney:
    “ Notes due me. In case of my death, these notes inclosed are to be given to the parties who made them.
    “ Dated April 15th, 1898.
    “A. Whitney.
    “ Insurance on house in Home of New York expires in 1901. ”
    Also notes and policy referred to.
    Envelope A. On the back of envelope A, hereinbefore referred to, is the following memorandum in the handwriting of said Whitney:
    “How to dispose of any surplus of my estate after former amounts have been distributed as requested.
    “A. Whitney.”
    On the back of said envelope is a further memorandum as follows:
    “ Circumstances had so changed since I made a will that it was not satisfactory to me, and I have taken this course to dispose of my estate something according with the present condition of matters.
    “Abel Whitney.”
    On the inside of said envelope was the following:
    “Adrian, November 1, 1897.
    “ To whosover has charge of my estate: In settling the same, after distributing the assignments, deeds, checks, etc., drawn-by me, whatever there may be left, if anything, I direct and authorize them to divide it equally between Josephine Harris, Augusta Teachout, daughters of my late brother Russell Whitney, and Mrs. Mary Friday, now in my employ.
    “A. Whitney.”
    Also a further memorandum as follows:
    “Adrian, November 1, 1897.
    “I want one Ithaca, Gratiot county, school bond of $500 belonging to me, in case of my death, handed to Augusta Whitney Teachout, one of the names mentioned in the assignment herewith, without further ceremony.
    “A. Whitney.”
    No such bond was found, except such as had been specifically assigned by other writing.
    Envelope B. On the back of said envelope B is the following memorandum in the handwriting of said Whitney: “ To Frank W. Clay, or Rial, in case F. W. C. cannot attend to ft or should die.” On the inside of said envelope was found the following memorandum in the handwriting of said Whitney on the back of one of the pieces of paper:
    “ To Frank W. Clay, or Rial Clay, to be handed to one in case of my death.
    “A. Whitney.”
    On the reverse side of said piece of paper is the following :
    “Adrian, October 17th, 1898.
    “To F. W. Clay, and, in case he cannot attend to the business, I want Rial to do so. In case of my death, I want you to step right into my matters and take charge of everything, and not allow my relatives or any one else to interfere or meddle with anything. Keep Mrs. Friday in the house to look after matters until everything is settled; and what I have given her is of my own accord. She has never asked me for a penny above her wages, but she has done for me more than any relative, and is entitled to all she gets and all I have provided for her. See that each one gets what I have intended for them, and pay no attention to any one else, for they have no business with my matters, and no right to anything from my estate bpyond what I see fit to give them; and up to my death, unless for some expenses during my last illness, I do not owe any person one dollar. I haye paid as I went along.
    “Abel Whitney.”

      On the inside of said envelope was another paper, upon the back of which was written in the handwriting of said Whitney the following instruction,: “To Frank W. Clay, •or, in case of his death, to his son Rial Clay, in relation to settling my matters in case of my death.” On the other side of said piece of paper is the following, in the hand writing of said Whitney:
    “Adrian, Michigan, November 29th, 1898.
    “ Dear Sir: I have instructed Mrs. Friday, in case of my death, to take the keys to my boxes, and not allow any one else to have them until she and yourself or Rial look over the papers and distribute them to those who have assignments made to them, and, as far as it is possible, have them recorded and pay for the same, and write or send the paper to them, telling them the nature of the transfer to them, and any surplus divide it as I have instructed you to do in another paper. I leave the matters in this form to avoid going into probate, and this course is in all respects my will and wish. Of course, you will pay, funeral expenses first, or at least save enough to do so and for yóur time and trouble. I do not owe any debts, unless there may be some during my last days that I have not been able to settle, and you are authorized to carry out these provisions the same as though I had done it myself or was alive to do it, and I hereby authorize you, as my attorney, to execute my will in these matters.
    “ Yours truly,
    “Abel Whitney.
    “ To Frank W. Clay, or, in case of his death, Rial Clay.”
    There was also found in said envelope another letter of instructions in the handwriting of said Whitney, as follows:
    “Adrian, August 26th, 1899.
    “To Frank W. Clay, Rial Clay, or whosoever has charge of my estate:
    “ Not knowing how soon I may be called to leave this earth, I make this memoranda to show that whatever I leave Mrs. Friday is my own voluntary act. I am more dependent on her than any other person on earth, as she is not only faithful, but honest, and I can trust her in any •and all things. I intend to leave her with means sufficient to maintain herself without resorting to work out for her living; and in case any one who may perhaps, according to our laws, claim as heir or heirs, but have no claim on me or my property, attempt to reverse this my wish, I want you to see that such person or persons do not get anything out of my property. I claim the right to leave it as I think proper. She has never asked me for anything, and what I give her is of my own will, and if any one, as it happens in many cases, attempts to slur or traduce her, see to it that they do not get anything, but, instead, give what might otherwise go to them to her (Mrs. Friday), and this shall be your voucher for your act. I have been disgusted with the way and manner heirs treat old and faithful women who devote their time and energies to the care of old and helples men, for the sake of getting what does not belong to them; and I want whosoever has charge of my matters to see to it that that is not permitted in this case, and, if necessary, spend all the rest of my estate in seeing this is not allowed. I am not either indebted to or under obligations to any relative living, and, if any of them get anything, they may be thankful for it, and, if they do not, they are not out of pocket on my account.
    “Yours truly,
    “Abel Whitney.”
    Envelope C. On the back of the envelope marked “ C ” is the following memorandum in the handwriting of said Whitney:
    ‘ ‘ To Frank W. Clay, Rial Clay, to be referred, in case of my death, to whosoever has charge of my estate.
    “A. Whitney.”
    On the inside of said envelope was found the following letter of instructions in the handwriting of said Whitney:
    “Adrian, October 17th, 1898.
    “ In case of my death, I want Mrs. Friday to have such articles of crockery in the buttery as she may wish, including pans, knives and forks, and in fact everything in the buttery, only I would like for Mrs. Friday to divide about half between Mrs. Harris, Augusta Teachout, and Amelia Miller. The large upholstered rocking chair to Mrs. Harris, if she is alive; all the rest of the chairs to Mrs. Frary of that kind of furniture, that is, the maroon or red silk plush. Mrs. Friday to have the carpet in the kitchen and in the dining room, Mrs. Harris the carpet in the parlor, and Augusta Teachout those in my bedroom and library. My books, mainly, to go to Charles H. Whitney, of Baker City, Oregon. I have already spoken of them in another paper to be referred to. Some of my books of poems might be distributed among different nephews and nieces, and I would wish to leave it so that whosoever has charge of my matters can use their discretion in making such distribution, according to taste and position of the individuals to receive them. The picture representing family group, including William A. Whitney, to go to Dwight A. Whitney; Lincoln and his cabinet to go to Mrs. Frary, of at present Ypsilanti, but her home is in St. Joseph county, Michigan; the bathing picture in the library to Dwight A. Whitney; and the one nest to it, ‘Crossing the Stream,’ to Mrs. Friday. The cook stove to Mrs. Friday, and one coal stove to Mary Waller Bohn, one to Clanton, and one to Mrs. Harris. My tables, stands, bookcases, looking-glasses, and any other articles not hereinafter mentioned, to be given to such relatives as Mr. Clay or the manager may think best. There are a great many things difficult to specify, but divide them as just as possible, and according to the wishes of heirs. Photographs and such like, distribute as individuals wish them. Effie Dean’s picture to Fanny Berdan. The clock in the library to Mrs. Friday, and that in the kitchen to Augusta Teachout. The bureau in what is called Augustus’ room to go to Sampson Whitney; Almira’s room to Mrs. Friday; the one in my bedroom to Mrs. Frary; the one in the library to Mary Bohn, if she wants it, if not, to Mrs. Friday. Articles in cellar like canned fruit, stone-ware, etc., cider and vinegar, leave it largely to Mrs. Friday to divide as she thinks best with my relatives and herself. Give the tools in the barn to Mrs. Harris. Anything not distinctly named so you will know what to do with it, leave it in the house, to go to those who have a deed of that in proportion to their share in the house.
    “ Yours truly,
    “Abel Whitney.
    “To F. W. Clay, Rial Clay, or whosoever has charge of my estate as requested.”
    On the same piece of paper, and below the above, in the handwriting of said Whitney, is the further memorandum as follows:
    “The white china in closet from dining room give to Mrs. Frary, and the blue-ware set to Fanny Berdan. Give one mattress to Mrs. Friday, one to Helen Bohn, her niece’s daughter, one to Mrs. Harris, and one to Augusta TeacHout, and .allow Mrs. Friday to distribute the bedding among heirs as she thinks best, or leave them in the house for those who have the deeds.
    “A. Whitney.
    “The silverware to the children of Mary Helen Bohn, their mother to divide the same between them.
    “A. Whitney.”
    Also a further memorandum, as follows, in the handwriting of Mr. Whitney: ■
    “My picture in the parlor to be given to Mrs. Friday, and also that of Mrs. Whitney, and also that of Almira M. Budlong, if she would like them, instead of going to relatives. I think she would prize them more than the relatives would. The small family group picture in the parlor to be given to Mrs. Dr. N. H. Kimball. It could be enlarged if she wished to do so. This has been done by me.
    “A Whitney.
    “The bedstead, when the mattress is divided, to go with the mattress.
    “A. Whitney.”
    The bill also alleges that, a short time before his death, the deceased handed to his housekeeper, Mary Freitag,his bank check for $500, a school bond for $500 issued by Ithaca school district, another school bond for $500, a mortgage and assignment for $1,700, and another for $800. The bank has refused to pay the check.
    The estate has been inventoried at $34,620.12, and includes cash in bank $5,008.67. No debts were left by deceased, the funeral expenses have been paid, and the property is ready for distribution when the expenses of administration shall have been paid. Most persons interested consent to the distribution in accordance with the directions hereinbefore mentioned, but one or more of the heirs oppose. The bill is filed for directions in the premises, and prays a decree fixing the rights of the parties.

      Several minor defendants answered by guardian ad litem, and several of the adult heirs by solicitor. Mary Freitag and others', not relatives of deceased, also answered. Most of the answers admit the allegations of the bill, and some ask that the directions of the deceased be given effect. A hearing was had, and the court made a decree:
    “That Abel Whitney, in his lifetime, did divide the greater part of his property, and set it apart to the various parties mentioned in said bill and hereinafter named, and did make and constitute himself a trustee for the said parties, for the purpose of reserving unto himself the use thereof during his lifetime, and did all that was in his power to do to deliver to the said parties their portion thereof, consistent with his desire to retain the use for his support during his lifetime; and that the various letters of instructions left by him, and directed to Frank W. Clay, were for the purpose of informing the said Clay what he had done with his property, with instructions to said Frank W. Clay to make the delivery after his death; * * * that the division of the notes, mortgages, bonds, checks, etc., were made by the said Whitney, and put under separate covers for the parties named by him, meaning and intending by so doing to hold and treat it as their property; and that, when payments were made of interest on any of said notes, mortgages, or bonds, that was treated as his own, and used for his support so far as needed; and that, whenever payment was made upon the principal, that was treated as belonging to the party for whom it had been set'apart, and the money, or its equivalent by way of check upon the bank, or in some other manner, was kept separate and distinct from the other property, but the party to whom it belonged should have the full benefit thereof.”
    It was adjudged and decreed that:
    “Frank W. Clay proceed to carry out the instructions given him by said Abel Whitney in the writings left by him, in so far as it may be necessary to deliver and transfer to the parties entitled thereto that portion of the property set apart to them by the said Abel Whitney in his lifetime, and held by him as trustee aforesaid. * * * The mortgages, bonds, assignments, checks, and other papers delivered to Mary Freitag, as set forth in paragraph 28 of the bill, were delivered by the said Abel Whitney in his lifetime, and there was a valuable consideration therefor, and the same is hereby declared as property transferred to her to convey title, and the bank is hereby authorized to pay the check of $500 delivered to her. And it is further ordered that the various banks upon which the checks hereinbefore in this decree mentioned were drawn by the said Abel Whitney be, and are hereby, authorized to pay the same to the payees of said checks.”
    The appeal was taken by Sarah A. K. Frary, a niece, and Sarah Layton, the sister, of deceased. Their answers leave complainant to his proofs, allege that it would be unsafe to accept distribution in accordance with deceased’s directions, and ask an adjudication of the rights of the parties. The testimony sustains the allegations of the bill in most essential particulars.

      B. A. Watts, for complainant.

      John B. Ayres, for defendant Sarah Layton.

      Stewart & Bliss, for defendant Sarah A. Kline Frary.

      Morgan & Priddy, for other defendants.
   Hooker, C. J.

(after stating the facts). Complainant contends:

(1) That the acts of the deceased constituted him a trustee for the several persons named in the papers executed by him.

(2) That, if not, the deeds and assignments should be held to operate as a testamentary disposition of the property therein described.

Counsel for the defendants discuss three questions, into which they say that the case should be resolved, viz.:

“(1) Are the checks, including the one to Mrs. Freitag, legal transfers of the funds in the bank, and are the payees named therein entitled to draw the money from the bank thereon, or are they void ?

“ (2) Are the transfers of the real estate by way of deed and the transfers of mortgages by way of assignments valid and legal transfers of the property attempted to be transferred to the persons named therein, or are they void for want of delivery ?

“ (3) Do the deeds and the assignments of mortgages operate as a will ? ”

We can have no doubt that the papers found in the tin box indicate the deceased’s wishes as to the disposition of his property. Had he seen fit during his life to deliver the deeds and assignments to those for whom they were intended, the title would have passed, and they would have become valid gifts. Had he made a formal will directing such disposition, the law would carry out his expressed wishes. But he did neither.

Did the deceased hold the property in trust ? This cannot have been, unless he devested himself of the equitable title to the property, and vested it in others. He executed deeds, and assignments of mortgages of real estate, and set them aside in packages for the respective parties. He drew checks upon his banker, and made the same disposition of them. He kept all of these in his own possession up to the time of his death. Clearly, if this was all that he did, these were not gifts, for want of delivery. See Young v. Young, 80 N. Y. 422 (36 Am. Rep. 634). Indeed, it is not claimed that they were gifts. The case last cited was much like the present, and, while it was intimated that a delivery to a trustee would be sufficient to complete a gift inter vivos, it was said that a trust would not be created except by acts or words, unequivocal, implying that the person held the property as trustee for another; and, while it is not necessary that the declaration of trust be in terms explicit, the donor must have evinced by acts which admit of no other interpretation that such legal right as he retains is held by him as trustee for the donee, or, as said in Milroy v. Lord, 4 De G., F. & J. 264, “ The settler must transfer the property to a trustee, or declare that he holds it himself in trust.” We have held that a donor may be a trustee for the donee. See O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511). But it does not follow that the donor of an uncompleted gift is a trustee in all cases. In the case of Young v. Young, supra, attention is called to two cases where the courts practically-held such a rule. Morgan v. Malleson, L. R. 10 Eq. Cas. 475; Richardson v. Richardson, L. R. 3 Eq. Cas. 686. But the writer of the opinion says:

“In speaking of these cases in Richards v. Delbridge, L. R. 18 Eq. Cas. 11, Sir George Jessel, M. R., says:
“ ‘If the decisions of Lord Romilly [in Morgan v. Malleson] and of Vice Chancellor Wood [in Richardson v. Richardson] were right, there never could be a case where an expression of a present gift would not amount to an effectual declaration of trust.’
“And it may be added that there never could be a case where an intended gift, defective for want of delivery, could not, if expressed in writing, be sustained as a declaration of trust. Both of the cases cited are now placed among overruled cases.

He continues:

“In Moore v. Moore, 43 L. J. Ch. (N. S.) 623, Hall, V. C., says:
‘“I think it very important, indeed, to keep a clear and definite distinction between these cases of imperfect gift and cases of declarations of trust, and that we should not extend, beyond what the authorities have already established, the doctrine of declarations of trust, so as to supplement and supply what otherwise would be mere imperfect gifts.’
“If the settlement is intended to be effectuated by gift, the court will not give effect to it by construing it as a trust. If it is intended to take effect by transfer, the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. Milroy v. Lord, 4 De G., F. & J. 264.
“The case of Martin v. Funk [75 N. Y. 134] and kindred cases cannot aid the respondent. In all those cases there was an express declaration of trust. In the one named, the donor delivered the money to the bank, taking back its obligation to herself in the character of trustee for the donee; thus parting with all beneficial interest in the fund, and having the legal title vested in her in the character of trustee only. No interposition on the part of the court was necessary to confer that character upon her; nor was it necessary by construction or otherwise to change or supplement the actual transaction. None of the difficulties encountered in the present case stood in the way of carrying out her intention. It was capable of being executed in the form in which it was expressed.
“The question whether a remainder in a chattel may be created and given by a donor by carving out a life estate for himself and transferring the remainder, without the intervention of a trustee, is learnedly discussed in the appellant’s brief; but the views we have expressed render it unnecessary to pursue that inquiry. We are satisfied that it is impossible to hold that the facts as they appear establish a valid transfer of any interest in the bonds in question to the donee, and that the attempted gift cannot be sustained as a declaration of trust.”

Accordingly, we have held that an expression of an intention to pay another $1,000, in accordance with the expressed wish of the husband of the person expressing such an intention, did not create a trust. Hamilton v. Hall’s Estate, 111 Mich. 291 (69 N. W. 484). It was there said that, “to create a trust, where the donor retains the property, the acts or words relied upon must be uneqivocal,” — citing 27 Am. & Eng. Enc. Law, 56; and that ‘ ‘ this rule applies with peculiar force where it is claimed that the donor constituted himself trustee.” As said there:

“The mere declaration of an intention or purpose to create a trust, which is not carried out, is of no value, and a mere agreement or statement of an intent to make a gift in the future is not sufficient. It must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trust itself.”

See, also, Peninsular Sav. Bank v. Wineman, 123 Mich. 257 (81 N. W. 1091).

These cases show that the mere making of the deeds and checks and keeping them in possession are as far from creating a trust as they are from making a completed gift inter vivos. We must, therefore, look at these and other writings, and the acts and words of the deceased, for a declaration of a trust, or its equivalent, failing to find which we - must say there was no trust. Counsel call attention to the directions given Mr. Clay; also deceased’s actions in two instances in dealing with the property, where he is said to have accounted for certain moneys collected upon two mortgages previously assigned. These instances appear from memoranda of the deceased found in two of the envelopes. They have been quoted, but are repeated for convenience:

“Adrian, June 10th, 1897.
‘ ‘ As the Lehman mortgage has been assigned to Charles Herbert Whitney, of Baker City, Oregon, and Lehman paid $200 on it, I make a check for that amount, payable to the order of said C. H. W., to take the place of the $200 indorsed on that mortgage; the check to be sent to him in case of my death at once, by whosoever has charge of my business.
“A. Whitney.”
“This mortgage was assigned to Mary Waller Bohn, but soon after Mr. ICrigger paid it. I therefore make my check payable to her, so in case of my death she can get the money that was paid on the mortgage as principal, viz., $100.
“A. Whitney.”

So far as these two transactions are concerned, the action of the deceased is as consistent with defendants’ theory as complainant’s, and therefore should not be said to declare a trust.

Coming next to the conversations with Clay, decedent’s statements to him and others that he had disposed of his property as he wanted it to go are as consistent with the idea that he had made a will (as he had at one time apparently done), or that he had parceled it out in the way that the record shows, to be given effect after death, if not changed, as that he intended Clay to understand that he was holding it as trustee, which he could easily have said if it was his design. See Young v. Young, 80 N. Y. 435 (36 Am. Rep. 634), for a parallel case on this point.

We will next examine the contents of the envelopes.

No. 1. In this deceased says: “In addition to the inclosed deed, I want each one named in it to have the following sums in money, and I have made checks for the amounts, to be delivered to them at my death.” He concludes as follows: ‘ ‘ Mr. Clay, or whosoever has these papers, deliver them to the parties at my death.” Clearly, he did not hold the checks in trust; and why should not this fact, and the language used, characterize his holding of the deed inclosed and withheld from the grantees ? This is certainly no declaration of trust.

No. 4. “ This is to be handed to the officers of the Oak-wood Cemetery Association in case of my death.” This envelope contained two checks. Why were these retained, if he intended to pass title to the money P

■ No. O. The contents of this envelope were to be “sent to Emily Jane Van Buskirk, in lieu of anything in my ivill. ” This indicates that he had made or contemplated a will, and is not consistent with the idea of a trust.

No. 7. Contents “to be delivered to him at the time of my death. ”

No. 8. A similar provision is found here.

No. 15. “At my death, ivhosoever has charge of my matters, hand this to.Mary Bohn.” This was one of the cases where he subsequently made a collection, hereinbefore mentioned, and substituted his check for the security paid.

No. 16. Here he “gives and bequeaths” a bond, “to be handed to her at my death, without further ceremony, by ivhosoever has charge of my estate.” He afterwards added another bond, to be delivered to her in like manner. The words “ give and bequeath ” are suggestive of a future, rather than a present, delivery, and is not appropriate language for a declaration of. trust.

No. 17. “Note of S. N. Dada, to be sent or given to him at my death.” And again: “In case of my death, these notes inclosed are to be given to the parties who made them.”

There is not any evidence of a trust in these papers. On the contrary, it seems plain that the deceased proposed to keep them until he died. The letters contained in envelopes A, B, and C do not indicate that the deceased supposed that he held this property in trust. On the contrary, they direct distribution after death, and’ one, found in Exhibit B, states that he “left matters in this form to avoid going into probate, and this course is in all respects my will and wish; ” while in another he discusses Mrs. Freitag, and directs whoever shall have charge of his matters to see to it that she gets what he intends for her, and, “if necessary, spend all the rest of my estate to that end. This is cogent evidence that he proposed to keep control of his estate during life. The letter in Exhibit 0 has all of the attributes of a will, except a proper execution, as far as it goes. It contains nothing in the nature of a declaration of trust as to the articles mentioned.

Counsel rely, in their contention that this property was held in trust, upon the cases of Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178), and O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511). The former was a trover case, and the defense was based upon a gift causa mortis. The circumstances in that case show that the donor was in extremis, and did all that she could to express a present intention to make a gift, and this was held sufficient to defeat trover brought by the administrator. The case of O’Neil v. Greenwood was much stronger than the present case, and there was strong evidence of an explicit declaration of trust.- No trust was created in the present case, for there is nothing which indicates an intention that effect should be given to any of the papers before his death.

This discussion has not taken into consideration the question whether a trust in real estate can be created in the way claimed, under our statute of uses and trusts.

Can the deeds and assignments of mortgages be treated as a testamentary disposition of the property ? Counsel for the complainant appears to concede that the checks cannot be so treated, and there is nothing upon the faces of the deeds and assignments to indicate that they were not to take immediate effect, which they would have done had they been delivered. We must look, then, to other circumstances to show the testamentary character, and there is plenty of evidence tending to show that intent, provided it can be said to be such evidence as the law accepts. Thus we have seen that most of the envelopes contained memoranda showing an intent that these gifts should be given effect after death, and the letters to Clay contain similar indications; but no writing which contains such evidence was executed in conformity to the statute of wills. Had such memoranda not been accompanied by the deeds and assignments, no one would claim that they could be given effect as wills; and whatever force is to be given to them must come from the fact that formal deeds and assignments, duly witnessed, were inclosed with them. We think it obvious that no paper not executed in conformity to our statute can be considered a will, and, with the exception of the deeds and assignments, these papers were not. Whether the deeds and assignments may be so considered depends on the intent of the deceased and the character of the proof disclosing such intent. If the intent must appear upon the face of the instruments themselves, we cannot hold them to be testamentary, for it does not so appear; but, on the other hand, if the question of intent is susceptible of proof by parol, and is permissible where the instrument is unambiguous upon its face, it will be easy to infer such intent.

The'cases may be divided into three classes:

(1) Those in which the testamentary intent is clearly deducible from the writing.

(2) Those where the instrument is ambiguous, or of doubtful meaning.

(3) Those where there is nothing to indicate a testamentary intent, but, on the contrary, the instrument is in terms plainly a deed.

In the first class of cases there is no difficulty in holding, the document to constitute a will, if properly executed. In the second class the instrument may doubtless be interpreted in the light of the circumstances. In cases of the third class (and it is in this class that the documents properly belong), may the instrument be contradicted, and determined to be a will, upon extrinsic evidence of an intent on the part of the deceased that it be given effect by delivery upon his death? This is really the only important question in the case, for, answered in the affirmative, we have ample evidence to justify us in calling the instruments a will, while a negative answer will require us to treat them merely as undelivered deeds, without force.

We have been unable to find a Michigan case directly in point. Bigley v. Souvey, 45 Mich. 370 (8 N. W. 98), is a case of the first class. In Lautenshlager v. Lautenshlager, 80 Mich. 285 (45 N. W. 147), the writing contained evidence indicating an intent that it was to take effect at death, and, like Ferris v. Neville, 127 Mich. 444 (86 N. W. 960, 54 L. R. A. 464, 89 Am. St. Rep. 480), it belongs to the second, if, indeed, it does not belong to the first, class. The remaining case of Lincoln v. Felt, 132 Mich. 49 (92 N. W. 780), arose over a lost deed. The case went to the jury upon the question whether the decedent’s intent was that the gift should take effect only after death, and that such intent was expressed in the instrument in some appropriate form. The jury found it to be a will, and the order entered in accordance with the verdict was affirmed. Clearly, this was as favorable instruction as the contestants could ask; but it is obvious that the question before us now was not passed upon.

The proposition is to show that certain instruments, which could only become effective by delivery, can be made effective by calling them by another name, and giving them an interpretation which their words do not warrant, through parol evidence tending to show that such was the decedent’s intention. The authorities cited in support of this contention are the Lautenshlager Case, hereinbefore mentioned, which does not support it, and a statement in 29 Am. & Eng. Enc. Law, at page 158, where it is said that “ evidence is admissible to show that a deed or other instrument of gift, which on the face of it is not testamentary, was not intended to operate until the death of the person executing it; to show that an instrument on the face of it testamentary was not written animo testancli; but not to show that the operation of a will absolute in its terms depends upon a condition.” An examination of the authorities cited in support of the first proposition will show that they are for the most part cases where the instrument was reasonably open to two constructions, and related to personal property. Thus in Cock v. Cooke, 1 L. R. P. & D. 241, a paper was executed in the following language: “I wish Mym Sister, Louisa Cock, * * * to have my Schering (Charing) Cross bank book for her own use.” Proof that it was executed in contemplation of death, and as a bequest, was admitted. It was clearly open to that construction upon its face, and can hardly be said to have been a valid present gift or assignment. In the Goods of Morgan, 1 L. R. P. & D. 214, the instruments all contained clauses directing that the conveyances were not to take effect until after the testator’s decease. Nothing is said in this case about extrinsic evidence. In Robertson v. Smith, 2 L. R. P. & D. 43, the deceased died November 8th, having made a will July 29th, and a codicil October 12th, previous. November 7th he executed a document in the presence of two witnesses, to the following effect, viz.: “I hereby make a free gift to Maria R. of sixty pounds, and to John Y. of fifty pounds, being the sum deposited by me with,” etc. Parol evidence of the situation was admitted to show the intent to make a testamentary gift. In Goods of Coles, 2 L. R. P. & D. 362, the paper was plainly as consistent with the intention of a testamentary disposition as a gift inter-vivos; in fact, more so. The circumstances were shown, and it was held a will. Lister v. Smith, 3 Swab. & T. 282, is not in point upon this question, while In re Goods of English, 3 Swab. & T. 586, is similar to Cock v. Cooke, supra. The instrument considered in Robertson v. Dunn, 6 N. C. 133 (5 Am. Dec. 525), was doubtful upon its face. If the text is construed in the light of these decisions, it does not support the proposition that parol evidence may be offered to show that a deed not doubtful upon its face was intended to have a testamentary effect.

In 1 Underhill, Wills, § 37, it is said:

“The courts, in determining whether an, instrument disposing of real estate is a deed or a will, are guided by the following considerations: If the instrument, whatever its form or the mode of its execution, passes a present interest, which vests from the time of its execution, it will he a deed, though the possession and the enjoyment of the estate granted in it do not accrue to the grantee until a future time. On the other hand, if the instrument, though it is in form a deed, does not convey any vested interest, right, or estate until the death of the person executing it, it will be regarded as testamentary and revocable.
“The employment of language appropriate to either instrument is never controlling. Nor is the belief of the maker or an understanding between the parties interested that the instrument is a will or a deed conclusive upon the court (except when made so by statute), though evidence as to the belief of the parties as to its operation and effect is relevant to show their understanding as to the intention in executing it. The court must take into consideration the language of the instrument, and the circumstances surrounding the parties and attendant upon its execution; and if, from all the evidence, it appears to have been the intention of the maker that the instrument shall have a post mortem effect only, it will be held to be a testament, and not a deed. ”

In discussing the admissibility of parol evidence, the author says:

“ In seeking the intention of the maker of an instrument, the court must, in the first instance, consult the language of the writing itself. The fact that the writing which is presented for probate is testamentary in form is some evidence that it is a will. The form of the instrument is not controlling. The court of probate may go outside of the writing to ascertain its character; not to supply an intention which cannot he found in it, but to ascertain with what intention .the execution of the instrument was accompanied.” Id. § 39.

This plainly implies the correct rule that the writing must be susceptible to such a construction without doing violence to its plain terms, and no amount of parol testimony should authorize a court to vary the unmistakable terms of the instrument alleged to be a will. These papers plainly provide in terms for a present transfer of property, and to show that a different intention existed would be to contradict them, and this cannot be done.

We have examined many authorities where the question involved was whether papers in form deeds were testamentary in character, and it is a significant fact that not one has been found which supports the complainant’s contention. In nearly every instance the question is solved from the writing itself, or, if not, the construction adopted is not contradictory to its provisions, which are open to two interpretations. We cite a number of the cases alluded to: Stevenson v. Huddleson, 52 Ky. 299; Armstrong v. Armstrong, 4 Baxt. 357; Miller v. Holt, 68 Mo. 584; Brewer v. Baxter, 41 Ga. 212 (5 Am. Rep. 530); Fulcher v. Royal, 55 Ga. 68; Williams v. Tolbert, 66 Ga. 127; Worley v. Daniel, 90 Ga. 650 (16 S. E. 938); Goff v. Davenport, 96 Ga. 423 (23 S. E. 395); Hall v. Bragg, 28 Ga. 330; Herrington v. Bradford’s Ex’x, Walk. (Miss.) 520; Wall v. Wall, 30 Miss. 91 (64 Am. Dec. 147); Sartor v. Sartor, 39 Miss. 760; Sewell v. Slingluff, 57 Md. 537; Lauck v. Logan, 45 W. Va. 251 (31 S. E. 986); Wren v. Coffey, (Tex. Civ. App.) 26 S. W. 142; Bowler v. Bowler, 176 Ill. 541 (52 N. E. 437); Robinson v. Brewster, 140 Ill. 649 (30 N. E. 683, 33 Am. St. Rep. 265); Burlington University v. Barrett, 22 Iowa, 60; In re Longer’s Estate, 108 Iowa, 34 (78 N. W. 834); President, etc., of Bowdoin College v. Merritt, (C. C.) 75 Fed. 480; Cates v. Cates, 135 Ind. 272 (34 N. E. 957); Stroup v. Stroup, 140 Ind. 179 (39 N. E. 864, 27 L. R. A. 523); Bromley v. Mitchell, 155 Mass. 511 (30 N. E. 83); Walker v. Jones, 23 Ala. 448; Gillham v. Mus- tin, 42 Ala. 365; Mosser v. Mosser’s Ex’r, 32 Ala. 551; Hall v. Burkham, 59 Ala. 349; Sharp v. Hall, 86 Ala. 113 (5 South. 497, 11 Am. St. Rep. 28); Jordan v. Jordan’s Adm’r, 65 Ala. 301; Crocker v. Smith, 94 Ala. 295 (10 South. 258, 16 L. R. A. 576); Turner v. Scott, 51 Pa. St. 126; Patterson v. English, 71 Pa. St. 454; Knox’s Estate, 131 Pa. St. 220 (18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798); Outlaw v. Hurdle, 46 N. C. 150; Lyles v. Lyles, 2 Nott & McC. 531; Hone v. Van Schaick, 3 N. Y. 538; Hazleton v. Reed, 46 Kan. 73 (26 Pac. 450, 26 Am. St. Rep. 86); Lacy v. Comstock, 55 Kan. 86 (39 Pac. 1024); In re Ogle’s Estate, 97 Wis. 56 (72 N. W. 389); Clarke v. Ransom, 50 Cal. 595; Leaver v. Gauss, 62 Iowa, 314 (17 N. W. 522); Daniel v. Hill, 52 Ala. 430; Frew v. Clarke, 80 Pa. St. 170.

That parol evidence is not admissible to add to, alter, vary, or contradict a will, see the following: 1 Redf. Wills, p. 426, sub. 8, and cases cited, and page 435, sub. 21, page 496, sub. 2, page 501, sub. 10, page 507, note 21; Hone v. Van Schaick, 3 N. Y. 544; President, etc., of Bowdoin College v. Merritt, (C. C.) 75 Fed. 480, syl. 3; Sewell v. Slingluff, 57 Md. 537; Herrington v. Bradford’s Ex’x, Walk. (Miss.) 520; Miller v. Holt, 68 Mo. 584; Armstrong v. Armstrong, 4 Baxt. 357. For a discussion of this general subject, see 19 Cent. L. J. 46.

We have had difficulty in finding a case in which the exact point before us is raised, but it seems manifest that the same rule that forbids the contradiction of an established will should forbid the contradiction of the same instrument as a means of establishing it as a will, when its terms plainly show it to be a deed conveying a present interest. It is only when the writing is of doubtful import that interpretation by the aid of extrinsic evidence becomes necessary, and in such case interpretation, not contradiction, is permissible.

We are reluctantly driven to the conclusion that we cannot give effect to the deceased’s manifest desire, a desire so well established, and so apparently well grounded and just, as to merit our approbation; but we fear that the trite saying that “hard cases make bad law” would be applicable should we sustain the complainant’s contention. To do so would be to override established rules and principles essential to the protection of the rights of heirs.

It remains to refer to the rights of Mrs. Freitag. The record indicates that the papers designed for her were delivered to her, and we do not know that any one disputes it. Being delivered, they became gifts inter vivos, and conveyed title to her. As to the check for $500, we feel justified in finding it tobe based upon a valid and sufficient consideration, and therefore collectible against the estate.

' The parties are all before the court, and we think that her rights should be set at rest by this decree. Otherwise we are of the opinion that the property should be decreed to be assets of the estate, subject to administration in accordance with law. Neither party will recover costs, except Mrs. Freitag. She will recover costs from the estate. The disbursements of the complainant should be allowed him from- the estate.

Decreed accordingly.

The other Justices concurred.