text:
    McDUFFEE v. COLWELL.
    1. Landlord and Tenant — Lease—Specific Performance — Covenant to Heat — Interference of War Regulations.
    On a bill for the specific performance of an agreement in a lease to beat a store building, and for damages for failure to perform, defendant is liable if be failed to make use of tbe fuel available in beating said building, altbougb because of fuel regulations it was impossible for him to keep tbe temperature up to tbe standard required by tbe contract.
    2. Same — Damages—Certainty—Liability.
    Because of tbe difficulty in establishing with certainty tbe extent of plaintiff’s damages, defendant should not be allowed to escape all liability growing out of bis wrong, where the evidence shows that there was a loss.
    For authorities discussing the question of duty and liability of landlord of apartment as to heating, see note in 37 L. R. A. (N. S.) 1213.

      Appeal from Wayne; Mayne, J., presiding.
    Submitted June 3, 1919.
    (Docket No. 32.)
    Decided July 17, 1919.
    Bill by Charles S. McDuffee against Daniel L. Col-well for the specific performance of a contract, and damages for failure to perform. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Henry H. Wait, for plaintiff.

      Sehmalzriedt & Toms (Ezra H. Frye, of counsel), for defendant.
   Moore, J.

In May, 1916, the plaintiff entered into a five-year written lease for two store buildings with defendant, who was, as part of the consideration, to heat the buildings. Plaintiff claims defendant, did not heat the stores as he agreed and filed this bill to compel the specific performance of the agreement to furnish heat in the premises covered by the lease. Plaintiff also claims damages resulting from loss in his business in December, 1917, and January, 1918, by reason of the refusal of defendant to furnish reasonable heat. The trial court decreed specific performance and allowed plaintiff $200 damages. The case is brought here by appeal.

We quote from the brief of appellant:

“Unuer these facts the following legal questions arise: '
“(1) Can there be liability on the part of the landlord for alleged damages arising from the acts of third persons not under his control or acting without his consent, and particularly for acts of the municipal police, acting under the fuel administrator in the exercise of war powers?
“(2) If the landlord is liable under such circumstances, what is the correct measure of damages?
“ (3) Can damages be recovered for loss of probable profits based upon speculative and uncertain sales?
“1. We submit that this court should take judicial notice of the fuel stringency in Detroit and vicinity in the winter of 1917 and 1918. Konieczny v. Railway Co., 164 Mich. 66; Inglis v. Driving Ass’n, 169 Mich. 311, and the state of war in which this country was at that time; the unusual cold temperatures of December, 1917, and January, 1918, in Detroit and vicinity; the conduct of local fuel administrators during this winter acting under powers vested in the President of the United States by congress. Fed. Stat. Ann. (2d Ed.) p. 181, § 1 (Supp. of 1918, Act of August 10, 1917).
“It is undisputed that the defendant had provided upwards of 500 tons of good fuel for the purpose of heating plaintiff’s stores during the winter of 1917-1918, which fuel was taken from him by government authority, and the trial court also found that defendant was obliged to use fuel not adapted to the particular furnace used in heating the stores in question.”

There is a very learned discussion of the subject of “Subsequent Impossibility of Performance as Affecting Contractual Obligations” in volume 17, Mich. Law Review, p. 689, but we do not think that subject is important here. In the instant case the trial judge who heard and saw the witnesses stated in part in his opinion;

“The court finds that the defendant did not make use of said fuel in heating such building to the extent that it was possible for him to do. That the building could have been kept to a higher degree of temperature than it was kept although not possibly up to the standard required by the contract.
“The court finds that there was a falling away in the sales for the month of December and January from that of previous months and in comparison with those months, and the court finds that it can be traced to insufficiency of heat, and that the defendant is responsible under the terms of his contract for this loss. In other words that he is not excused by reason of the acts of the fuel administration in seizing the coal and making use of it otherwise.
“The court determines that specific performance may be decreed and the damages of the plaintiff assessed at the sum of $200.
“I am making allowance somewhat in this petition for the fact that even under the most favorable circumstances it might not have been possible to have kept the heat to normal. Therefore I do not hold the defendant responsible for the full damages,_ * * * and I allow such a percentage of profits as will amount to $200.”

A reading of the record justifies the conclusion of the trial judge that defendant might have done much better in heating the premises than he did. It is probable that if rents had not so advanced that the stores occupied by the plaintiff for which he was paying a rental of $85 a month would rent for $125 a month, there would have been less trouble about the heat.

Groups two and three may be considered together. It is claimed that the proof of damages based upon profits is too speculative and uncertain to warrant a verdict for any substantial amount. The plaintiff produced in court the original entries of each day’s sales and the bank book showing deposits for comparative months in 1916, 1917 and 1918. There was a decrease in December, 1917, from December, 1916, of $771; likewise in January, 1918, from January, 1917, of $308, making a total of $1,079 decrease for the two months in question, while in every other comparative month there was an increase in gross receipts of plaintiff’s business, except the month of August, 1917. He also introduced testimony tending to show that instead of a decrease in the gross receipts as above set forth during this holiday season there should have been an increase of at least $4,000; that he was equipped to handle the increased business ; that his overhead expenses would be practically the same therefor and that the average profit on the gross receipts was 33 1/3 per cent.

17 C. J. p. 910, reads as follows:

“As has already been stated, profits cannot be recovered as an element of damages where they are speculative, contingent or uncértain. Hence there must be reasonable proof of their amount, and for this purpose, actual past profits and receipts in the particular business or undertaking, where not too remote from the injury or wrong complained of, and although they may vary from time to time, may be shown, although they cannot be taken as exact measure of future profits; and the various contingencies by which they would probably be affected should be considered and given such weight as they are entitled to in the sound discretion of the jury.”

The cases of Allison v. Chandler, 11 Mich. 542, and Moss v. Railway Co., 188 Mich. 1, are in point.

In the instant case the defendant should not be allowed to escape all liability growing out of his wrongdoing because of the difficulty in establishing with certainty the extent of the damages.

The decree is affirmed, with costs to the plaintiff.

Bird, C. J., and Ostrander, Steere, Brooke. Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CRAWFORD v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Pedestrians—Personal Injuries — Negligence—Contributory Negligence — Question eor Jury.
    In an action against a railroad company for personal injuries caused by plaintiff’s being struck by' defendant’s train while backing over a street crossing, where the evidence as to defendant’s negligence and plaintiff’s contributory negligence was very conflicting, the issue was for the jury, under proper instructions.
    Error to Kalamazoo; Weimer, J.
    Submitted June 5, 1919.
    (Docket No. 65.)
    Decided July 17, 1919.
    Case by William Crawford against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Stewart & Stewart (Victor M. Gore, of counsel), for appellant.

      Claude S. Carney, for appellee.
   Moore, J.

Plaintiff was struck by one of defendant’s trains at the North West street crossing in the city of Kalamazoo, on the 15th day of April, 1916. His leg was severed below the knee. At a trial of the cause a jury returned a verdict in his favor for $5,000. The case is brought here by writ of error.

An order of the Michigan railroad commission required the gates at this crossing to be operated 24 hours of each day. The train which caused the injury consisted of a tender and locomotive which were running backwards, pulling a train of cars. A tower was located some distance west of this crossing, from which tower the gates maintained at the North West street crossing and the Kalamazoo avenue crossing were operated.

The general charge of the trial judge to the jury covers nearly 19 pages of the printed record. We quote from it sufficiently to indicate the questions involved :

“The burden is upon the plaintiff to establish by such preponderance of the evidence, the greater weight of the evidence: First, the negligence of the defendant. Second, that that negligence was the proximate cause of the accident. Thirds, that the plaintiff himself was free from contributory negligence, that is, free from an ordinary want of care and caution, on his part, which contributed to the accident. Just as the defendant was required in the premises to exercise ordinary care and caution, that degree of care and caution which I have just described to you, so on the other hand, the plaintiff, for his. own safety, is required by the law to exert the same degree of care and caution, namely, that which an ordinarily prudent man would exercise under the same or similar circumstances. * * *
“A little further with reference to the question of contributory negligence. It may be defined as some act or omission by a person injured which an ordinarily prudent man would not have done or would not have left undone under the same circumstances, which directly aided in causing or contributing to the injury. The rule of prudence binding on any person in any circumstances must be that which under just such circumstances would restrain a man of ordinary prudence. If the mind of an ordinarily prudent man would be impressed with a belief of danger he has no right to incur that danger. If the danger would not be apparent he is not negligent in acting upon that assumption.
“Every person is supposed to use his senses of sight and hearing in self-protection, whenever and wherever there may be reasonable cause to apprehend danger. Absent mindedness of a person injured is no excuse for going into danger. Every person must use ordinary care to protect himself, and if he neglects such duty he cannot claim damages for an injury happening or in part happening from a neglect of his duty. * * *
“It is the theory and claim of the plaintiff in this case that the defendant was guilty of negligence in several respects, namely:
“1. That defendant failed to give warning of the approaching train either by lowering the gates timely or by blowing the whistle from the engine or ringing the bell.
_ “2. That the defendant carelessly obstructed the view of the main line to the east (that is east of West street) by a number of freight cars on the siding.
“3. That the defendant operated the train which struck the plaintiff at a greater speed, an unreasonable, imprudent and careless rate of speed, particularly at a rate of speed greater than ten miles an hour, in violation of the ordinance of the city of Kalamazoo.
“4. That the defendant failed to lower the gates one minute before the train passed the crossing in violation of the ordinance of the city of Kalamazoo.
“It is the claim of the plaintiff that such negligence or some of it, was the proximate cause of the accident and of his injuries. That he himself was free from negligence, contributing to the injury; that he looked as he approached the crossing and observed that the gates were up and proceeded on the sidewalk, or the sidewalk line, on the west side of West street, and that he saw some freight cars on the siding and that his view of the main track was obscured by them, so that he did not and could not see the moving train approaching.
“It is his claim that he was upon the highway, that is, within the confines of the highway; by that I mean, he was between the sidewalk lines. It is claimed he was on the sidewalk or where the sidewalk would be if there was a sidewalk. In other words, that he was where he had a right to be; that he was in the public highway; that he was not outside of the highway line, that is, he was not upon the defendant’s property, to the west of the highway, when he was struck. * * *
“It is the claim of the defendant:
“X. That the gates were lowered properly and timely. At such time as was reasonably necessary under all the circumstances to give sufficient warning to the public to protect the public.
“2. That warning was given by the bell, that the bell was rung, as required, that is continuously as it approached the crossing until after the train passed the crossing.
“It is' not claimed that the whistle was sounded, but it is claimed that there was no requirement, and that is true. * * * Its failure to sound the whistle would not as a matter of law constitute, negligence on its part, so you will disregard the question of the whistle.
“It is the theory and claim of the defendant that ' the bell was rung continuously as it approached and passed the crossing.
“3. That there were no cars standing upon the siding to obstruct the view. Perhaps that might be stated another way, at any rate, the cars if there were any, did not obstruct the view. * * *
“It is the theory and claim of the defendant that the speed of the moving train was not excessive or unlawful or careless or negligent, or an imprudent speed, that it was a moderate, prudent, careful speed that was being maintained. That the train was just starting, just getting under way, that it had shortly before that come to a full stop and was then starting.
“It is the theory and claim of the defendant that the plaintiff was not upon the highway, that he was as a matter of fact on the contrary on the defendant’s right of way, on its private property, in other words, that he was a trespasser and that the defendant owed him no duty, that is, not such a duty as would entitle him to recover in this case. I will explain the duty in a moment, that railroads owe to trespassers; but that is not the duty that is claimed to have existed in this case.
“For the purposes of this case if you find that the plaintiff was on the defendant’s right of way when he was struck he would not be entitled to recover.
“It is the claim of the defendant that the plaintiff’s injuries were not caused or sustained' by reason of any negligence on its part, but on the contrary, by reason of his own negligence. That the plaintiff was not upon the sidewalk but upon the right of way of the defendant railroad company, and that there was a clear view of the main track to the east, and that if the plaintiff had looked he must have seen the train moving.
_ “It is the theory and claim of the defendant if he did not see the train it was because he did not look; that that is a physical fact from the evidence, that it was where he could see it if he had looked, that in short, the plaintiff did not exercise that degree of care for his • own safety that men of ordinary prudence would have exercised under the same or similar circumstances, and that his failure to do so contributed to produce his injury. Those are the two theories and claims as I understand them substantially as made by the pleadings and the testimony.
“The defendant railroad company owed a duty to • the public to lower the gates at that crossing timely upon the approach of trains, and failure to do so would as a matter of law, constitute negligence on the part of the defendant.
“It was the duty of the defendant company to lower its gates upon the approach of trains at such time as would be fairly and reasonably necessary to protect the public, to give warning to the public and persons about to cross the right of way; not at any particular time or any particular moment, but at .such time as under all the circumstances in this case would be a timely lowering, not necessarily ten minutes, or five minutes, or three minutes, nor one minute, notwithstanding there is an ordinance to that effect. You must take into consideration the ordinance; the ordinance requires one minute. It is for the jury to say whether or not the ordinance is reasonable, if it is valid, and it is reasonable and valid it may then be considered by you as evidence of negligence if valid. A violation of it does not necessarily constitute negligence on the part of the company. * * *
“It was the duty of the defendant company, its employees and agents upon the train to ring or cause the bell to be rung and to be rung continuously on approaching and passing the crossing, and its failure to do so would constitute negligence, because it is required by State law; the lowering of the gates is required by State law. For that reason as I have already stated to - you, failure to lower them timely would constitute negligence. It would not necessarily follow that that negligence caused the injury, but it would be negligence, and it is for you to say whether or not that was the proximate cause of the injury or whether something else was. * * *
“It is claimed as we have noted, that the plaintiff was a trespasser. If he was the defendant owed him no duty while he was on its private right of way except not to wantonly or wilfully injure him after discovering he was in a place of danger, if it was so discovered. * * *
“So, as I have already stated to you, under the evidence in this case, under the theory upon which the case has been tried, and under the evidence that has been offered to support the theories of the plaintiff, if the plaintiff was not on the public highway, was not within the limits of North West street, if, on the contrary he was west of the sidewalk line, was on the Michigan Central private right of way, he cannot recover. * * *
“It is incumbent upon the plaintiff to show and he must show to your satisfaction by a preponderance of the evidence that the defendant not only carelessly and negligently obstructed the view of the plaintiff when he was crossing the defendant’s tracks by causing a number of freight cars to be and remain standing on the sidetrack or sidetracks so he could not see the train approaching, but he must also show it was through such negligence in placing such freight cars that he was injured, as he alleges on the sidewalk within the limits east and west of North West street, without contributing to the injury himself.
“The plaintiff in order to recover, must also show not only that the defendant did not lower the gates on the approach of the train in question, but that it was because of the failure of the defendant to lower the gates seasonably and timely that he became injured, without negligence on his part contributing to it. If the plaintiff suffered an injury on defendant’s grounds then in that case it is of no consequence whether the gates were up or down. * * *
“It was the duty of the plaintiff as I have already stated to you in a general way, to use that degree of care and caution for his own safety, as men of ordinary prudence would have used in the same or similar circumstances. To use his senses of sight and hearing. Not only to use his senses of sight and hearing at the time he was outside of the gates, before he used the gates but afterwards. There was more than one track, there were several tracks, and after he proceeded across the tracks it was still his duty to use his senses of sight and hearing in the same manner and to the same extent as men of ordinary prudence under the same or similar circumstances would do. A railroad track is in itself a warning of danger and any pedestrian about to go upon it should look and listen before attempting to cross, and a failure to do so is negligence. So strongly has this rule been enforced that even where there is a clear view of the track for only a very short distance and the approach of trains could have been seen by stopping, looking and listening before crossing the track, a traveler in the highway has been held guilty of contributory negligence as a matter of law when injured in such a case, unless of course, he was misled by the flagmen or the acts of the trainmen on the train-or gates.
“Where gates or a flagman are maintained the public have a right to presume that they will perform their duty. A traveler is not then required to stop, look and listen before crossing the track. When the gates are up it is usually, as in this case, a question for the jury to determine whether or not under all the facts and circumstances the pedestrian was deceived in assuming that the way was safe. Of course, a man may not rely upon the gates if he has knowledge of the train; if he in fact knows that a train is moving on the track he is not then deceived in relying upon the gates; but in the absence of notice to the contrary, where there is a regular gateman, or where there is a regular flagman or gates ordinarily operated, usually and customarily operated, as in this case, it is for the jury to say in what manner and to what extent the traveler is deceived in relying upon those gates, whether under the particular and peculiar circumstances of the case under consideration he is deceived. Whether or not he was negligent depends in a measure upon whether or not he had a right to rely under the circumstances upon the position of the gates and whether or not he did in fact rely upon that. It is not the law of this State that under all circumstances it is absolutely necessary for a person approaching a railroad crossing to look both ways and listen for approaching trains. It is generally required. That is the general rule as I have already stated to you. If there were no gates at all at this crossing then that rule would apply-; but in cases where there are gates or where there is a flagman, that rule does not always apply. As I stated to you, it is generally required but it is not a rule of universal application. Every case must depend upon its own circumstances. A traveler in every case is only required to take such precautions as an ordinarily prudent man would under like circumstances, and whether or not he did use such care is generally, as in this case, a question for the jury. * *
“It is for you as jurors to say whether or not under the circumstances the plaintiff had a right to rely, and if he had such right then in fact how far did he rely upon the position of the gates, or any signal of danger performed as an assurance of safety. If an ordinarily prudent man would have done the same as the plaintiff did under the circumstances and you find that the defendant was guilty of negligence causing his injury, then of course he should recover.
“If you find that the plaintiff as I have just stated to you had the right to rely and did in fact rely upon the position of the gates, that is, that they'were up, before and at the time of entering upon the norther-most track then, in order for the plaintiff to recover you must also find that he crossed in a southerly direction towards the main track — west bound track— and that his view of the approaching train was obscured by the freight cars, for the reason that although he in the first instance, upon approaching the first _ track to the north, might have been and was deceived in relying and did in fact rely, upon the position of the gates, namely, that they were up, still, if as he proceeded to the south towards the main line his view of the approaching train was not. obscured by standing cars, and there was nothing to prevent him from seeing the train had he looked as he traversed the distance from the north track to the main track, he would be guilty of contributory negligence as a matter of law in failing to see the train in time to avoid the accident.
“Perhaps that should be stated in this way: If those freight cars were not standing there, as he claims, on that siding then, although the gates were up when he crossed, although you find they should have been down, they were up, still he would be guilty of contributory negligence for as he passed from the north track he failed .to see the approaching train.”

There are several assignments of error but the contention of appellant' which is important is tersely stated by counsel in the supplemental brief as follows:

“Crawford’s own story proves him guilty of contributory negligence:
“First. The record shows that he exercised no care whatever for his own safety; and that if he had, he would have escaped injury.
“Second. The entire absence of care or attention by plaintiff renders the issue one of law, as the claim that the gates were up cannot and does not excuse contributory negligence.
“We submit it must be held in this case, as a matter of law, that the neglect of plaintiff to observe that active watchfulness which ordinarily prudent men would exercise under like circumstances bars his recovery. The question was, therefore, not one for the jury. The evidence leaves no doubt or room for doubt, that if Crawford had made any use of his senses he could have both seen and heard in due season The approaching train.’ Blount v. Railway Co., 61 Fed. 375.
“It cannot be stated too often that the plaintiff was a pedestrian, having quick control of his own movements, whose casual use of his senses afforded complete assurance of his personal safety. In order even to avoid seeing this train coming across this wide street, it was necessary for plaintiff to have his eyes riveted on his toes or else his back toward the train; either attitude was negligent.” Citing Detroit Southern R. Co. v. Lambert, 150 Fed. 559, and other cases.

A reference to Blount v. Railway Co., supra, will show that it is not controlling. In that case Mr. Blount had he looked could have seen an approaching train from the porch where he was visiting, and all the way from the time he left the porch until he was finally struck.

Judge Taft speaking for the court said:

“In this case Blount had stood at Hoy’s porch where he could see the track for 800 feet. From Hoy’s gate for 60 feet he walked towards the track, while the train was in full view but 300 feet away, and was getting nearer and nearer each second. As the train passed the ice house at a speed of 15 miles an hour, its roar must have been heard by any one giving the slightest attention, who was not 100 feet away. When he was 6 feet from the track, the train was only 30 feet from him and in full sight, and yet he did not halt or hesitate but rashly stepped in front of it. It was a quiet night. There was no confusion at the crossing. _ There were no other trains in sight. There was nothing to distract Blount’s attention from the oncoming train except a self-absorption which in approaching a railway crossing is gross negligence. On these facts can reasonable men fairly reach any other conclusion than that Blount was wanting in due care in not observing his danger?
“We have no wish, in expressing this conclusion, to weaken at all the obligation upon the railway company to lower its gates when trains pass, and we freely concede that such a failure is to be regarded as an invitation to the traveler to cross the track in safety. Northeastern R. Co. v. Wanless, L. R. 7 H. L. 12-15. The extent to which the traveler may rely on such an invitation, and omit the ordinary precautions of looking and listening is usually a question for the jury. This case, however, we think to be exceptional in its facts which permit only one inference.”

In the instant case it was claimed and there was testimony to sustain the claim that plaintiff’s view was cut off by cars on the sidings until he got nearly upon the main track.

The question involved is not a new one in this State. In Richmond v. Railway Co., 87 Mich. 374, Justice Morse, in speaking for the court, said in part:

“We do not think from the testimony produced by the plaintiff that Sherwood could have seen the cars approaching from the south, after he left the crossing of the Lake Shore & Michigan Southern Railway, until he came within about 20 feet of the crossing. If he had looked then, he would have undoubtedly seen these cars in time to have stopped and avoided a collision. And it is pretty apparent — almost absolutely certain from the plaintiff’s own showing — that he did not look south within said 20 feet, until his horse was upon the track.
“Whether he was negligent depends in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him.
“It is claimed by defendant’s counsel that the obstruction of the view to the south, and the absence of the watchman from his post called upon Sherwood to have stopped, and looked and listened before he attempted to pass this crossing. This claim would be correct if at this street crossing no flagman had been stationed to give warning. But the testimony shows that a flagman had been kept at this point for three or four years, whose duty it was to signal by a flag in the street the approach of trains. It is not the law of this State that under all circumstances, it is absolutely necessary for a person approaching a railroad crossing to look both ways and to listen for approaching trains. It is generally required, but it is not a rule of universal application. Every case must depend upon its own circumstances, and it would be unreasonable to apply such rule, under all circumstances, without regard to the condition of things at the time. Cooper v. Railway Co., 66 Mich. 266. Nor is a traveler compelled, under all circumstances to stop before crossing, if his view is obstructed from one way. He is only required to take such precaution as an ordinarily prudent man would under like circumstances, and whether or not he did use such care is generally a question for the jury. See Guggenheim v. Railway Co., 66 Mich. 157, 158, and cases cited.
“Plaintiff’s counsel contend that, it appearing that the defendant had stationed a flagman at this crossing, whose duty it was to warn parties about to cross of approaching trains, it was for the jury to say whether the deceased, in keeping his eyes directed to the flagman for the very purpose of observing a signal at the earliest moment that it could be given, was not exercising due care. They cite the following cases in support óf this contention: French v. Railroad, 116 Mass. 537; Sweeny v. Railroad Co., 10 Allen (Mass.), 377; Chicago, etc., R. Co. v. Hutchinson, 120 Ill. 592 (11 N. E. 856); Pennsylvania Co. v. Stegemeier, 118 Ind. 305 (20 N. E. 843); Glushing v. Sharp, 96 N. Y. 676; Cleveland, etc., R. Co. v. Schneider, 45 Ohio St. 678 (17 N. E. 321); State v. Railroad Co., 80 Me. 444 (15 Atl. 39); Central Trust Co. v. Railway Co., 27 Fed. 159; Tyler v. Railroad Co., 137 Mass. 238; Pittsburgh, etc., R. Co. v. Yundt, 78 Ind. 373. * * *
“The defendant asked the court to instruct the jury in substance, that the absence of the flagman from his post did not in the least excuse Sherwood from exercising his senses of sight and hearing to ascertain whether the train was approaching; and that, if the deceased Sherwood, by looking up the track in the direction of the approaching train, could have seen it in time to avoid the injury, his omission to do so was such negligence as would prevent plaintiff’s recovery. This was refused, and it will be seen that the court left it to the jury to determine whether, under the circumstances, Sherwood had a right to rely and how far, upon the absence of the flagman from his post of duty, and the want of any signal of danger from such watchman, as an assurance of safety; and they were instructed that, if an ordinarily prudent man would have done the same as Sherwood did under the same circumstances the plaintiff could recover. I find no errors in the charge on the subject of negligence.”

In Tobias v. Railroad Co., 103 Mich. 330, it was said:

“With these facts appearing plainly upon this record it is evident that the deceased, if he had looked, might have seen the train in time to avoid the accident, and the fact that he drove upon the track would be conclusive evidence that he did not look; and the court should have directed the verdict in favor of the defendant, but for the question of the maintenance of an electric bell there. The court was expressly asked to charge upon this point, by the plaintiff’s third request, that if the deceased did not know of any fault in the condition of the bell,, this fact might be taken into consideration, with other facts in the case, as bearing upon the question of deceased’s contributory negligence. This request should have been given. It cannot be said that the deceased would have no right to rely upon the ringing of this electric bell to warn him of the approach of the train. If the electric bell had rung, it would have given him warning. That he expected it to ring might make,him less cautious in looking for the coming of a train. The case is somewhat similar in principle to Richmond v. Railway Co., 87 Mich. 374. In that case it was said substantially that it was almost absolutely certain, from plaintiff’s own showing, that he did not look south when within 20 feet of the tracks, and that whether he was negligent depended in a great measure upon whether or not he had a right to rely, under the circumstances, upon the absence of the flagman, and the lack of any signal of danger from him. The cases upon that question are collected, and upon the whole case it was held that the circumstances were such that it became a question for the jury whether the plaintiff was guilty of contributory negligence. So we think in this case that under proper instructions from the court, that question should go to the jury, in connection with plaintiff’s third request, which should have been given.”

In the recent case of Coston v. Railroad Co., 201 Mich, at page 241, it is said:

“This intersection of the railways was on the main thoroughfare between Owosso and Corunna, the county seat of the county in which both were located. Defendant’s line approached it from the south on a curve and crossed it diagonally; it was within the power of the railroad commission to make this order, and when the system was installed with an alarm bell to give warning of an approaching train which all approaching the crossing could hear, it cannot be said that it was not intended to and did not mean anything to that portion of the public using the highway on foot or by private conveyance. Such warning bells are not required or customary at ordinary highway crossings and when installed are inevitably a notice to the general public that the ordinary means of warning at a highway crossing are inadequate for that particular place, which would naturally tend to divert the vigilance of those regularly using the highway from the ordinary methods of warning. This bell had been maintained by defendant at the crossing where the accident occurred for several years. How it came to be installed, the manner in which it operated, the extent to which it was kept in working order, deceased’s knowledge of its condition and the extent to which he in the exercise of reasonable caution and prudence might and did rely upon it were, under the Tobias Case, questions for the jury.”

In the instant case the testimony was very conflicting. Of the 19 written requests preferred by counsel for defendant, 14 were given. We have already seen that the trial judge gave a very long, general charge in which he attempted to cover every phase of the case. The parties had able counsel and the case was carefully tried. We find no reversible error.

The judgment is affirmed, with costs to the plaintiff.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    PEOPLE v. WHEATON.
    Criminal Law — Opening Statement — Prior Oeeense — Evidence —Credibility oe Witness.
    In a prosecution for hunting and trapping for game without a hunter’s license, an assertion in the prosecutor’s opening statement that defendant had been guilty of the same offense five days previously, and the admission of testimony of said offense, held, to be error, which was not cured by the court’s instruction that said testimony was admitted solely as affecting defendant’s credibility, since the statement was made and the testimony admitted before it was known that defendant would be a witness
    Exceptions before judgment from Muskegon; Vanderwerp, J.
    Submitted June 12, 1919.
    (Docket No. 96.)
    Decided July 17, 1919.
    George Wheaton was convicted of hunting and trapping- without a license.
    Reversed.

      Willard G. Turner, Jr., for appellant.

      Alex. J. Groesbeck, Attorney General, Christian A. Broek, Prosecuting Attorney, and Harry W. Jackson, Assistant Prosecuting Attorney, for the people.
   Moore, J.

This case is here on exceptions before sentence. The respondent was. convicted of hunting and trapping for game without having a hunter’s license, the hunting not being upon his own inclosed land. The alleged unlawful hunting and trapping is charged to have taken place on the 27th day of February, 1918.

We quote from the brief of counsel for respondent:

“The propositions urged for reversal are divided into four parts as follows:
“First. Errors in allowing the prosecuting attorney to make assertions in his opening statement to the jury which were incompetent, and only served to prejudice the respondent in the eyes of the jury.
“Second. Errors in allowing the prosecution to present proof of an entirely incompetent character, and particularly evidence which was connected solely with the commission of another offense, five days previous to the one on which the alleged offense in question occurred.
“Third. Error in ruling out the photographic copies of treaties between the United States and Chippewa tribes, of which the respondent was a member, certified as true copies by the assistant commissioner of Indian affairs. ,
“Fourth. Error in the instruction of the court to the jury in the charge made.”

1 As to the third proposition the alleged copies of the treaties do not appear in the record, and we are unable to say whether this rejection is reversible error.

The other assignments of error may be considered together.

We quote from the opening statement of the prosecuting attorney:

“The testimony will show further, as bearing upon whether or not on this day in question he was hunting and trapping, the testimony will also show that on the 22d, five days prior to this time, Mr. Weilhamer met Mr. Wheaton in Muskegon township, and at that time Mr. Wheaton was actually spearing muskrats.
“Mr. Turner: If your honor pleasé, I move that that be stricken out. This man is not being tried for something that happened five days prior to this offense.
“The Court: That is true.
“Mr. Turner: It can’t but prejudice him in the eyes of the jury.
“The Court: It may, however, be material.
“Mr. Broek: If the court please, in the statement I attempted to show how we will connect it up with this offense on the 27th, as bearing upon the question of whether or not at this time he was hunting and trapping, because he was not caught in the act of hunting and trapping at that time, and our proof will sho-^ — if I am permitted to say to the jury — our proof will show that on the time we allege he was violating this law he had exactly the same implements of hunting and trapping that he did have on this day five days prior, when he was caught in the act of spearing muskrats.
‘‘Mr. Turner: I would like to object to that again, your honor, to get it on the record.
“The Court: The record will show your objection. Proceed.
“Mr. Broek: We will also show, gentlemen of the jury, that he was on the 22d, at this time having those same implements and tools and weapons, or whatever you want to call them, he was brought into justice’s court and pleaded guilty to trapping and hunting without a license and was fined—
“Mr. Turner: I object to that also.
“Mr. Broek: • — and then, five days later he was caught again in the same way, and that is the case you are to try now. We are not attempting to show that this first conviction on the 22d is an indication of his guilt, and we are not going to ask you to do that except as bearing upon his credibility as it might develop later in the trial, but we propose to show it, gentlemen of the jury, because the circumstances were the same as on the 27th and it might have a bearing upon the question of whether or not he was guilty at the time as charged on the 27th.”

The people were allowed to give testimony against respondent’s objection in keeping with the statement of the prosecutor which we have quoted.

The trial judge in his charge to the jury referred to this testimony as follows:

“Now, gentlemen, that has been introduced and has been admitted for the sole purpose of affecting the credibility of the respondent as a witness for himself, and as bearing upon the purpose for which he had with him on the days in question, that is, the 27th day of February last, the bag, spear and hatchet. He is not being tried for any other offense that he may have committed, but only upon the charge contained in the information, to which I have already called your attention. You have the right to consider the testimony regarding the former hunting for game, the former arrest and conviction of this respondent, for the purpose for which it has been introduced and for no other purpose.”

The opening statement of the prosecutor was made and the testimony was admitted before it was known that the respondent would be a witness. If it had not been admitted he might not have been sworn. It will be observed that the trial judge did not limit the use that might be made of this testimony to its bearing upon the credibility of the respondent.

In Tiffany’s Criminal Law (4th Ed.), p. 529, it is said:

“Another general rule is, that the evidence offered must correspond with the allegations, and be confined to the point in issue. This rule supposes the allegations to be material and necessary. Surplusage, therefore, need not be proved. Where no criminality is alleged against a defendant, none can be proved. Nor is it competent for the prosecution to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the offense in question.
“Thus, in a trial for burglary, evidence that the defendant broke and entered the same house a few months previous to the breaking charged in the indictment, was held inadmissible as having no tendency to prove anything but the earlier offense, for which the defendant was not on trial. There being no connection between the two crimes, proving one had no tendency to prove the other. The admission of such testimony must manifestly prejudice the jury against ' the prisoner, while he cannot be expected to have made any preparation to meet such irrelevant charges. The rule of exclusion is more important in criminal than in civil cases, because the consequences of its violation are more serious, and the danger of conviction on irrelevant matter is more direct.
“The general rule in criminal cases is well settled that the commission of other, though similar, offenses by the defendant cannot be proved for the purpose of showing that he was more likely to have committed the offense for which he is on trial, nor as corroborating the testimony relating to the principal offense.”

We think the opening statement and the testimony of the commission of a previous offense were reversible error.

The conviction is set aside, and a new trial ordered.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Kuhn, J.

text:
    WOODRUFF v. VENIA.
    Adverse Possession — Quieting Title — Evidence—Sufficiency. On a bill to quiet title to land, testimony of plaintiffs held, to show such an open, notorious, continuous, exclusive, distinct, and hostile possession to the land in question as to make out a title by adverse possession.
    Appeal from Monroe; Gilday, J.
    Submitted June 11, 1919.
    (Docket No. 14.)
    Decided July 17, 1919.
    Bill by Ari E. Woodruff and others against Joseph Venia and another to quiet title to land. From a decree dismissing the bill, plaintiffs appeal.
    Reversed, and decree entered for plaintiffs.

      Woodruff & Woodruff and Frank W. Atkinson, for plaintiffs.

      Willis Baldwin, for defendants.

      The bill of complaint in this cause was filed to quiet title to lands lying between the property of the plaintiffs and the property of the defendants. The location of the disputed strips can be readily seen from the annexed map of the locus in quo, which was offered in evidence and marked “Exhibit A.”

    The defendants filed an answer and a cross-bill in which they claimed ownership of that portion of the property lying between the line of the “old fence,” which it is claimed followed the course of Bad creek, and the so-called “new fence” which the defendants attempted to erect on the said property. The line of this new fence cuts off from the property which the plaintiffs claim to own, two parcels, one consisting of 1.162 acres and the other consisting of 15.339 acres. These parcels are designated on the map, Exhibit A, as “Parcel 1” and “Parcel 2.” On the hearing of the case in the court below both parties claimed title to the disputed land by adverse possession. A decree was entered dismissing the bill of complaint and giving to the defendants affirmative relief sustaining their contention that they had acquired title by adverse possession to the two disputed strips in question, and from this decree the plaintiffs have appealed.
   Kuhn, J.

(after stating the facts). It is the claim of the defendants that they owned the property, first, by virtue of conveyance which is attached to the bill of complaint, and second, by adverse possession. Defendants’ claim of title by virtue of deed is based upon a deed from Louis Lozon to Adolph Venia and Joseph Venia, dated February 20,1889, and a subsequent conveyance to him by Adolph Venia of the undivided one-half interest of the said Adolph Venia in the property described in said deed. The description in this deed is as follows:

“Being a part of the north half of the northwest quarter of section two (2) in township six (6) south, range ten (10) east, and bounded north by Bad creek, east by the northeast quarter of said section and Bad creek, south by land formerly owned by Godfrey Venia and west by section three (3), containing thirty acres more or less.”

It will be noticed that the north boundary of this land is described in the . deed as Bad creek, and the difficulty here arises from the fact that the location and character of Bad creek is in dispute. For a period of about 17 or 18 years the fence, which was constructed by the defendant himself, followed what was known as Bad creek. It is his claim that he constructed it for the purpose of keeping his cattle from trespassing upon the lands of the Elliotts to the north. The record discloses that Bad creek is well defined to the west of the highway, but to the east of the highway it gradually widens out and at places is 30 or 40 feet wide and becomes swamp land. The record also discloses that a dike was erected by Julius Elliott upon a portion of the land in dispute to make it more suitable for cultivation, and that at least a portion of the land in dispute lying north of the old fence was cultivated by Huldah Elliott without any objection being made thereto by the defendant, although he admitted that he knew this was being done.

Counsel seem to have no serious controversy as to the law which is applicable to the situation, here presented, but the dispute arises over the determination of what conclusion should be drawn from the facts as presented by the record. It is reasonable to assume that at the time that the deed in question was drawn, Bad creek must have been a well defined stream suitable to have been used in a description as a boundary line. The deed further described the land as 30 acres, more or less. A reading of the record gives no convincing reason why the defendant built a meandering fence and thereby cut off, as he now claims, about 17 acres of his property, instead of in a straight line, as would ordinarily be done, unless he recognized that the center of Bad creek was the division line between the properties. The only claim of actual possession which the defendants rely upon is that from time to time he hunted over the grounds and gave permits to ■ others to hunt thereon. The record, however, shows that the defendant Venia never planted crops on any part of the property in dispute, and it is admitted that he never used it other than for hunting as above stated. On the other hand; the testimony of the witnesses is convincing that, with reference to the property north of the old fence, which it is claimed came into the possession of Huldah Elliott in 1877 and was owned by her up to the time of her death, it was well understood that the southern boundary of this property was the old line fence, which followed the course of the creek, and that the Elliotts, for upwards of 20 years prior to the commencement of this suit, have used from time to time portions of this land for farming purposes. Considering the character of the property in question, that a part of it was swamp land and not suitable for cultivation,, we have come to the conclusion that it is clearly shown that the possession and occupancy of the plaintiffs and their predecessor in title was of such a character as to openly and publicly indicate an assumed, control and use thereof and that the occupancy was of such a character as to notify and warn a claimed owner who should visit the premises, that a person was in possession under a hostile claim. The plaintiffs by their testimony have shown such an open, notorious, continuous, exclusive, visible, distinct and hostile possession to the disputed land in question as to make out a title by adverse possession by clear and cogent proof.

The decree of the lower court must be reversed and a decree will here be entered in accordance with the prayer of the bill of complaint, with costs to the appellants.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    HARRIS v. MICHIGAN MUTUAL HAIL INSURANCE CO.
    1. Insurance — Hail Insurance — Growing Fruit — Definition.
    Fertilized growths on apple and pear trees, which in due course would have been apples and pears, held, to be within the terms of a hail insurance policy, indemnifying insured against damage to “growing grain, fruit, and other farm products,” in the absence of a rule in said policy defining growing fruit.
    2. Same — Damages—Evidence—Sufficiency.
    Where, in such action, it cannot be said that there was no competent evidence before the jury of the damages sustained, and no complaint is made that the judge’s charge to the jury was erroneous, the judgment in favor of plaintiff will be affirmed.
    Error to Van Burén; Des Voignes, J.
    Submitted April 29, 1919.
    (Docket No. 12.)
    Decided July 18, 1919.
    Assumpsit by George E. Harris against the Michigan Mutual Hail Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Kinnane, Black & Leibrand, for appellant.

      William J. Barnard and Earl L. Burhans, for appellee.
   Ostrander, J.

The plaintiff made written application to defendant for membership and for—

“indemnity against damage or loss to growing grain, fruit, and other farm products * * * $1,000 on 112 acres of fruit, on Sec. 20, Lawrence Twp., Van Burén Co., Mich.”

—from noon of the 25th of May, 1915. The policy issued upon this application recites that plaintiff—

“has this 25th day of May, 1915, become a member” of the defendant company and “has insured in said company, against loss or damage to growing grain, fruit, and other farm products by hail, to the amount of $1,000, from noon of the 25th day of May, 1915.”

The premises and specification of the insurance are as stated in the application, namely, “$1,000 on 112 acres of fruit, Sec. 20, Lawrence Twp.” * * * The undertaking of the company is—

“to make good unto the said insured * * * all such loss or damage, not exceeding the amount insured, as shall happen by hail to the property above named, and more specifically described in the application on file, * * * which is hereby made a part of this contract, from the 25th day of May, one thousand, nine hundred and fifteen, * * * the. said loss or damage to be estimated according to the actual cash value at the time the same is adjusted.” * * *

The policy was in force May 8, 1916, on which day a violent hail storm occurred at the plaintiff’s farm. Plaintiff then had, on section 20, about 2,000 bearing fruit trees from 14 to 40 years old, apple and pear trees. He notified the defendant that he had sustained a loss by the hail storm. Officers of the defendant visited the orchards, there was some correspondence. Finally, after an attempt had been made to adjust the loss, and on October 16, 1916, defendant wrote plaintiff a letter, signed by its secretary, the pertinent portions of which are:

“We will say in regard to your claim for damages by hail on May 8, 1916:
“First, that blossoms are not fruit and, hence, is not covered by the policy.
“Second, that on your pear orchard on which you claimed 50 per cent, loss, did not show to as good fruit men as are in Van Burén county, any loss by hail. So if any loss occurred to your crops,' it was from something besides the hail of May 8, 1916.”

In September, 1917, plaintiff filed Ms declaration in tMs cause, with a bill of particulars. Defendant pleaded the general issue. The cause came on to be tried in February, 1918. Plaintiff offered, defendant did not offer, testimony. There was a motion by defendant for a directed verdict upon the grounds:

(1) That plaintiff had shown no injury to' any property covered by the policy, namely, growing fruit.

(2) That the plaintiff “has failed to show any damages that could be submitted to a jury at this time, all damages from whatever cause they may haye occurred, or whether they occurred or not, being uncertain, speculative and contingent.”

There was a verdict for plaintiff for $1,056.60, upon which judgment was entered. The grounds asserted in the motion for a directed verdict are those urged here for a reversal of the judgment. Upon the first point, defendant, appellant, presents the question in this way:

“Whether or not,” it says, “the incorporators had in mind the line of demarkation where the protection would commence, there certainly is a line somewhere and that line must be ascertained from the language they used. If we say ‘growing fruit’ includes blossoms, then it is by a hair’s breadth to the next station and include fruit buds. Horticulture teaches and the evidence shows that the fruit of this year is produced from buds grown last year. Therefore damage to this year’s fruit buds’ may have a tendency to damage next year’s fruit crop. Having gone that far it is only a very short step to the next station, by claiming that inasmuch as damage to fruit buds is proof of damage to fruit, proof of damage to leaf buds ought to be admitted as proof of damages to fruit on the theory that damage to the foliage has a tendency to damage the fruit crop, present or future. This line of reasoning could be continued like the rhyme of ‘The House that Jack Built,’ to include future damage to foliage, damage to the limbs of the trees, then to the trunk, then to the soil from which the trees draw their sustenance, etc.
“It must be clear that these farmers intended mutually to insure another against loss or damage to some kind of growing fruit and grain, not something that might or might not develop into growing fruit and grain.
“To determine what the contract is we must resort to the language used in the writing. There is no parol testimony from which assistance may be had in the construction and whatever that construction is found to be, the parties must be held to be bound by it.”

It refers to the Century dictionary, the New International Encyclopedia, and to the opinion of a Federal court (Nix v. Hedden, 39 Fed. 109, 149 U. S. 304) for a definition of the word fruit. With respect to these definitions it is said:

“It will be observed that one element tenaciously present in all these definitions is the element of seeds. We find no comprehensive definition of the term ‘fruit’ which does not contain the element of ‘seed.’ We can then say that unless the blossoms contain seed they would not be fruit within the purview of the policy.
“There is no evidence that any of those blossoms or fruit buds contain seed resulting or contained in a pollenized ovary which develops into the core and obtains the result of proper fertilization — seed.
“Pollen is referred to by some of the witnesses as seed, but pollen is not the seed mentioned in the definitions. The stamens which contain the pollen is part of the blossom (the leaves and carpels), and is never contained in the growing or ripened fruit. The seeds of fruit have such a well known meaning that no one can be mistaken as to what is meant when it is said that one of the constituent elements of fruit is seed, contained in and covered by the juicy, pulpy product of a tree or plant.
“This would seem to be the only logical place to draw the line. The policy covers when the embryo apple is sufficiently advanced so that the presence of seed is susceptible of proof, until then five-sixths of the blossoms may not be fertilized and those not fertilized would, of course, never develop into fruit.
“To hold the other policyholders liable for damages to blossoms that would never have developed even into a fertilized embryo apple was certainly not within the contemplation of the incorporators. It would be doing violence to their language to so hold.”

Counsel for appellee, directing attention to the fact that in the policy the words growing fruit are employed to describe the risk insured, refers to the lexicographers and to botanists for definitions of “growth,” “grow,” “growing,” and to Black’s and Bouvier’s dictionaries for a definition of “growing crop,” and they say that anything that is developing is growing and—

“We claim fruit is growing fruit any time after the ovary within the blossom is pollenized, or is impregnated, as it were. From that point life begins and from then to maturity it is merely in its stages of growth. True, a bare blossom is but a possibility. The ovary of the blossom contains what we call ovules. On receiving the pollen it fertilizes and the ovules become seeds. Where fruit is spoken of as a ripened ovary, we find botanists using this word in the sense of a pollenized or impregnated ovary.”

Upon the other point the defendant, appellant, says, in the brief in concluding the argument:

“In this case there were no damages whatever proved. There was no proof that the blossoms claimed to have been injured had' been far enough advanced to have even developed into embryo fruit. There is absolutely no proof of any kind or character as to how many bushels less the plaintiff probably received as a result of the hail storm. There is not even any proof of that character to enable the jury to make any kind of a guess. What the jury did was to simply allow plaintiff the full face of the policy without having anything before them by which they could tell whether his damages were $1,000, $100, or $10,000. There was just as much proof as to any one of the above three sums as there was to either of the other two.” * * *

To this, appellee replies, generally, that difficulty in ascertaining the damages is not a reason for refusing recovery, and that it does not follow that because their ascertainment is difficult they are therefore uncertain, remote or speculative. He asserts that the damages may be measured by the difference between what his orchard, affected by the hail, produced, and what other orchards in the immediate locality, not affected by the hail, produced. For the purpose of applying this rule, he contends that the record furnishes an ample basis. The rules given to the jury by the trial court we do not know, none of the charge of the court appearing in the printed record, and no complaint being made that the charge was erroneous.

Defendant is a mutual company and its articles and by-laws are printed upon the policy which it issued to plaintiff. In the articles of association, the “object” of the company is stated to be—

“to _ mutually insure the property of its members against loss or damage by hail on grain, fruit and other farm products in such a manner as set forth in its by-laws.”

The 16th article provides that the company insures its members against loss or damage by hail to growing crops — on farm crops not to exceed $30 an acre, on fruit and garden truck not to exceed $100 per acre.

“The rate of assessment on fruit and garden truck shall be treble what it is on farm crops.”

It is provided in the by-laws that a loss exceeding $100 shall not be adjusted before the maturity of the crop, and further provided that the association will not be liable for any loss or damage except that occasioned by hail.

The- testimony tended to prove a rather severe hail storm, the wood of trees and buildings being scarred, the blossoms knocked or cut from the trees, that plaintiff had in one field 550 apple trees, 15 years old in 1916, in another about 800 apple trees, 10 years old, that there were also 940 or 950 Keifer, 400 Bartlett, and 150 Angel pear trees, 14 years old in 1916. On the 8th of May, 1916, the trees had been in blossom for a week or more and the blossoms were dropping.

The secretary of defendant, called as a witness by the plaintiff, testified that he looked the orchards over June 14, again in September, and a third time in October, that he estimated plaintiff’s loss on his pears at from 300 to 350 bushels. To this effect, under date October 9, 1916, he wrote to plaintiff. He testified, also, that he never admitted plaintiff had any loss on his apples by hail. In what manner this witness estimated the loss of pears is not shown. No expert biologist or botanist gave testimony. A number of fruit growers, with large practical, but with little theoretical, knowledge of the subject, gave testimony. Plaintiff, on direct examination, testified, in part, as follows

“The hail storm had the effect of knocking off the blossoms, that is, the fruit on the stem. It eut some of them. That morning I went out and found the blossoms cut off. Some was knocked off entirely and some was cut off so you could cut it with shears, the little fruit, the fruit, you know; after the blossoms, you know how the fruit looks. After these white leaves, blossoms, drop off, there is your fruit right there, and it cut them off. They were all over the ground, it was covered.
“Q. With things that you could identify as apples and pears?
“A. Yes, sir.
“Q. I will ask you if previous to the storm, you had examined blossoms out there with regard to whether or not pollenization or fertilization had taken place. You know what I mean when I speak of a stamen, don’t you?
“A. Yes.
“Q. What was the condition of that practically on the end of the stamen — now I don’t know what they call it?
“A. Well, the way that I should call that, it. was ripe, it was kind of a brownish; it had turned brown. When they first comé out they are white and then they turn kind of a yellowish color and grow a little darker.
“Q. When they turn that color what is that an evidence of?
“A. That the pollen is distributed.”

On cross-examination, he testified, in part:

“Friday, previous to the hail storm, I opened up some of the buds to show Mr. High some of the inside, the fruit; you can see the fruit with the naked eye when they are blossomed. You could see the small apple. The apple would be about the size of a pin head. The blossoms were about half on. It showed the fruit on May 4th or 5th. I went out there to show him my prospect of the fruit crop. When I went out there, Monday morning, I don’t know as I saw a branch broke off from the trees, but I saw that my blossoms was cut. Some was knocked clear off from the main branch and some was cut just as you cut it with shears. And they were laying all around on the ground with the fruit in the blossom. That I did notice that it knocked off the blossoms that had the fruit set in them and that they were laying on the ground. There are always more blossoms than a tree is capable of bearing apples or pears. Not all the blossoms were cut off, there was those left, Monday morning, that I thought at the time might make a crop, but in two or three days those stems had been hit with the hail and turned black. Then I knew I had a pretty heavy loss and got busy and wrote Garber. There are different things that might injure the blossom and kill the fruit, besides the breaking off of the stem. A cold, steady rain for a week will damage the blossoms and a hard enough freeze will hurt apples. * * *
“Q. Did you, at any time previous to the trial, claim any damage on growing fruit? Was it not always damages to the blossom?
“A. On growing fruit. I claim that the blossom, when it gets developed as far as they was developed, is growing fruit, because your fruit is in the — you can open it — I have opened probably thousands of them; I am always in the orchard seeing how they are coming, probably 3 or 4 days in a week, I go out in the orchard and open up these blossoms — and you can see it. If you have ever examined it yourself you can see it.
“Q. Your position is that the blossom was injured and as a result the fruit would be injured?
“A. Why, the fruit was injured when the blossom was injured; it is all the same thing; the fruit was there with the blossom.”

Another witness, a fruit grower of long experience, testified:

“From my observation, I find an apple makes two kinds of growth, what we call wood growth and blossom growth. All apple buds are produced, practically all of them, on the end of a fruit spur which must be produced the season previous or some time before the blossom bud can be formed. Many other fruits have lateral fruit buds that grow on the previous year’s growth, as a peach, but the apple grows on a fruit spur which is made in some previous year before that, and the bud for the ensuing year’s crop— the bud for the 1916 crop would be completed during the growing season of 1915, and in the following spring, if nothing should happen to injure that bud in any way whatever, I think there could be no reason whatever why that bud shall not proceed to grow and make a bloom and we believe, from my observation, that every perfect bloom, under right weather conditions, fertilizes. Later on, as the apple begins to grow, nature eliminates the weakest of these apples and thins them — what we call the June drop — and usually thins them down to the crop that the tree can mature.
“Q. From your experience as an apple man, can you tell by the examination of the apple tree whether or not the apple has been fertilized?
“A. Under normal conditions, under normal weather conditions, when the petals begin to drop naturally the growth of the little apple is visible, at the time which the petals drop naturally.
“Q. By the petal you mean the flower?
' “A. The white bloom of the apple. But my observation is that when the petal drops normally fertilization has taken place and to prevent — the only thing that will prevent its making an apple or starting to grow — and until that dropping period what we call the June drop — would be some disease affecting the apple, or bad weather conditions; that might affect it. I think that apples may be sometimes fertilized and still injured later by bad weather conditions, but it would be very exceptional; as an incident, I might give the year, I think, of 1910, when our apples blossomed in April; on the 16th of April, apple trees were in full bloom in our township; that is the year snow went off about'the latter part of February and we sowed our oats in March — but that was very exceptional— and that year, in May, we had a very severe snow storm and freeze from the northwest and it practically ruined the apple crop which was formed at that time. That is the only instance I know of being ruined from that cause after fertilization has apparently taken place or positively taken place.
“Q. And after these petals have begun to drop normally the fruit is then growing?
“A. Yes, sir.
“Q. And it can be distinguished, you say?
“A-. Yes, sir. One point I would like to make. Every observer knows that a cluster of about 6 or 7, 5 to 7 blossoms — in each apple bud, contains 5 to 7 blossoms separately, and the center one of -those seems to be a Stronger bud than the others and blossoms generally about two days earlier than .the other blossoms open; and that center blossom usually fertilizes and the petals begin to drop by the time the others are in full bloom. And in our own orchard at home, we had one crop of Jonathans, a very good crop that consisted entirely of apples formed from that one strong bloom in the center which blossomed two days previous to the others coming out, and the others were destroyed, simply withered up and turned brown, the petals did, and made no apples and didn’t fertilize.
“Q. From your observation as an apple man, can you tell by the examination of these petals on the tree, whether or not fertilization has taken place — that is, supposing it has not taken place, explain what condition you find the petals in?
“A. I find when weather conditions are so as preventing apples fertilizing that the petals remain on very much longer than in case fertilization has taken place, if the weather conditions are such and it is damp and the pollen can’t circulate; I suppose that is the reason, but the petal will remain for a long period; I have known it to remain for ten days or two weeks.
“Q. Under favorable weather conditions, where it is warm, how long does it take for fertilization to take place?
“A. I think under perfect weather conditions, that the apple will, at the expiration of two days after the apple is in full bloom, that the petals will begin to drop.”

Other witnesses gave testimony to the same effect.

The articles of association and the policies issued by defendant seem to make no distinction between fruit and grain or other farm products. These members ought to have agreed among themselves concerning the state to which nature must have brought growing grain and fruit before liability would attach for its destruction, if they did not want the courts to give to the words employed by them a popular meaning. The argument of defendant that blossoms are not insured could be modified and used in the case of grain by saying that the growing wheat plant or corn plant was not’insured. Suppose the property insured and destroyed was a field of wheat, not headed out, or a field of tomatoes, with plants in bloásom or having lost some or all of their blossoms. Without applying to the contracts of these mutually insuring members of the defendant corporation the rule that the language used by the insurer in the policy will be given a meaning favorable to the insured, we are justified in saying that in popular phrase wheat not headed and corn upon which no ears have formed are growing grain. It being so easy, and manifestly so proper, for defendant to state a rule, we shall attempt to state none for its guidance. We are contented to say that evidence was introduced which fairly tends to prove that the trees in plaintiff’s orchards had on them growing fruit, fertilized growth, which in due course of time would have been apples and pears, for the destruction of which by hail the defendant, by the terms of its policy, may be liable.

The subject of the damages sustained by plaintiff has given us greater trouble. It must be assumed that the defendant did not intend merely to collect premiums and suffer no losses. Earely, will two orchards, or two fields of growing grain, with different owners, be found where the soil, the exposure, the tillage, are the same. The rule that to prove the extent of his loss by the crops secured by a neighbor whose orchard was untouched by the hail, the plaintiff must prove that in the orchards compared the soil, moisture, exposure, fertilization, spraying, were the same, is not a workable one in such a case as this. Corporations like defendant have themselves made a practical rule for estimating damages to grain by hail which is (Barry v. Insurance Ass’n, 110 Iowa, 433, 437 [81 N. W. 690, 692]):

“The loss in all cases shall be considered the difference between the amount grown on the damaged tract, and a fair average of the same kind grown on an equal tract in the immediate neighborhood, where no damage was sustained.”

In the case at bar, the testimony for plaintiff tended to prove that there were in the immediate neighborhood orchards of pear and apple trees not affected by the hail and some trees in the plaintiff’s orchards somewhat protected from the storm. The yield of the protected trees, the usual yield of the orchards themselves, the yield of fruit in the neighborhood orchards, these facts were laid before the jury. The cost of picking, packing and marketing the crop was in evidence. We are not warranted in saying that the jury had before it no competent evidence of the damages sustained. We must assume that the court properly instructed the jury upon the subject. The court did not err in refusing to direct a verdict for defendant.

The judgment is affirmed, with costs to appellee.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Fellows, J.

text:
    SELLICK v. SELLICK.
    1. Wills — Construction—Life Estate.
    Where a husband’s will gave to his wife “$25,000, to he used and enjoyed hy her during her life, and at her death to he equally divided between” his nephew and niece, held, to give the widow the use of the money for her life, a life estate, and no more.
    2. Same.
    That testator in one clause of his will gave said nephew and niece $5,000 to he paid presently, in no way modified the plain, unambiguous language of another clause giving them $25,000, to he paid upon the death of the wife.
    3. Same — Termination of Life Estate — Disposition of Fund.
    Where the widow took under the statute and rejected the life estate in the $25,000 given her in the will, thereby diminishing the fund of the residuary legatee, held, that said sum should be placed in trust and the income therefrom paid to the residuary legatee during the life of the widow and at her death the corpus he paid to the remaindermen.
    4. Same — Acceleration—Applicability.
    While the doctrine of acceleration of the time of taking effect of the remainder upon the termination of the life estate hy act other than the death of the life tenant must be recognized and applied in proper eases, such doctrine should not be applied where, by the election of the widow to take under the statute, a portion only of the legacies are diminished in order to make up the amount required by the statute to satisfy the widow’s statutory rights.
    Appeal from Van Burén; Des Voignes, J.
    Submitted June 11, 1919.
    (Docket No. 3.)
    Decided August 9, 1919.
    Bill by William R. Sellick against Arthur F. Sellick and another for the construction of a will. From a decree for plaintiff, defendants appeal.
    Reversed, and decree entered.

      Thomas J. Cavanaugh, for plaintiff.

      Alfred J. Mills, for defendants.
   Fellows, J.

This case involves the construction oi; the will of William J. Sellick, late of Paw Paw, Van Burén county, and the effect as between certain of the legatees of the election of the widow to take under the statute. Mr. Sellick left real estate inventoried at $8,500 and personal property inventoried at upwards of $176,000. He left a widow, Caroline Sellick, and one son, William R. Sellick, the plaintiff,, now grown to manhood, who was the child of a former wife. He also left collateral kindred, including the defendants Arthur F. Sellick, a nephew, and Gertrude Sellick, a niece. To his collateral kindred other than defendants he gave varying sums aggregating $15,-000. By the second clause of his will he gave to each of the defendants $5,000. The first clause of his will is as follows:

"I give, devise and bequeath to my wife, Caroline Sellick, Twenty-Five Thousand Dollars ($25,000), to be used and enjoyed by her during her life and at her death to be equally divided between my nephew, Arthur F. Sellick, and my niece, Gertrude Sellick.”

The residue of his estate he gave to his son, the plaintiff. The widow elected to take under the statute. The trial judge construed the first clause of the will, when taken in connection with the second clause which gave each defendant $5,000 and the residuary clause, as giving the widow absolutely $25,000, and accordingly held that the.defendants took nothing under such clause. This rendered unnecessary the determination of the other questions involved. From a decree in accordance with these views the defendants appeal and it is here urged by their counsel that the first clause of the will gave the widow a life estate with remainder over to them; that by the election of the widow to take under the statute her life estate is at an end, and that applying the doctrine of acceleration of remainders they are now entitled to said sum of $25,000. On the other hand, it is insisted by counsel for the appellee that the bequest to the widow gave her an absolute estate; that the bequest falls within that class of bequests controlled by Jones v. Jones, 25 Mich. 401, and kindred cases, and that the decree should be affirmed. It is further insisted by appellee’s counsel that if we decline to follow this contention and accept the view that a life estate only was given the widow, still we should not apply the doctrine of acceleration of remainders, but that such life estate given to the widow by the will should be sequestered to reimburse the plaintiff in part for the depletion of his bequest occasioned by the payment out of it of the sums necessary to make up the widow’s statutory share. In short, that he is known in the law as a disappointed legatee, and that the doctrine of acceleration of remainders should not be adopted at the expense of disappointed legatees.

We are not disposed to take time or space in differentiating between the instant case and Jones v. Jones, supra, and kindred cases. Under the repeated decisions of this court the clause of Mr. Sellick’s will above quoted gave the widow the use of $25,000 for her life, a life estate, and it gave her no more. Glover v. Reid, 80 Mich. 228; Gadd v. Stoner, 113 Mich. 689; Farlin v. Sanborn, 161 Mich. 615 (137 Am. St. Rep. 525); In re Moor’s Estate, 163 Mich. 353; Bateman v. Case, 170 Mich. 617; Laberteaux v. Gale, 196 Mich. 150. The opinions in these cases together with the authorities cited in them establish beyond doubt that under the language found in this clause Caroline Sellick took but the life use of $25,000. While it is true that the entire will must be considered, we find nothing at variance from this conclusion in any of its provisions. The fact that the testator gave each of the defendants $5,000 to be paid presently in no way modifies the plain, unambiguous language of clause one by which he gave them $25,000, to be paid upon the death of his wife.

This brings us at once to the interesting and novel questions in the case. It must be conceded at the outset that the decisions of the court of last resort of the State of Pennsylvania sustain the contention of defendants’ counsel unequivocally. Coover’s Appeal, 74 Pa. St. 143; Ferguson’s Estate, 138 Pa. St. 208 (20 Atl. 945); Vance’s Estate, 141 Pa. St. 201 (21 Atl. 643, 12 L. R. A. 227, 23 Am. St. Rep. 267). Is the rule laid down by the Pennsylvania court supported by the weight of authority apd by equitable principles? .Should the doctrine of acceleration of remainders be applied where by its application the remainderman gets more than the will gave to him and legatees either specific or residuary get less? To these questions we shall now direct our attention

Some support is given defendants’ contention by the holding of the court of appeals of Kentucky in Trustees Church Home v. Morris, 99 Ky. 317 (36 S. W. 2). But in that case it was said:

“There is no reason whatever, in this case to depart from the direct command of the testator to distribute this estate in the manner in which he directs it to be done. It might be different if an intention was apparent to benefit certainly the residuary legatees, and the bulk of the estate was expected to be left for them. In such event they, and not others, could be said to be the chief objects of the testator’s bounty, and they would be protected, not because it would be equitable or just, but because such was the intention of the testator.”

And Sherman v. Baker, 20 R. I. 446 (40 Atl. 765, 40 L. R. A. 717); Dean v. Hart, 62 Ala. 308; Slocum v. Hagaman, 176 Ill. 533 (52 N. E. 332), and Adams v. Gillespie, 55 N. C. 244, give color to defendants’ claim. But some of these cases only consider the general doctrine of acceleration of remainders and do not determine that such doctrine should be applied where by an election not to take under the will other legacies to other legatees are diminished.

That the determination of the life estate by act other than the death of the life tenant is as effective to let the remainderman into possession as the death of the life tenant, that the time of taking possession is accelerated by such act, is generally recognized in this country and in England. Thus in Jull v. Jacobs, 35 L. T. Rep. 153, the testator gave a life estate to his daughter with remainder over to her children on their becoming of age. The daughter witnessed the will thus incapacitating her from taking the life estate.. The life estate having failed from this fact it was held that the children who took the fee should be let into possession at once, Vice Chancellor Malins remarking:

“Then, taking away her life estate, does that cause an intestacy as to the life, or an acceleration of the estate in remainder? It is clear that the children are postponed because of the mother’s life estate, but if she does not take the life estate why should they be postponed? It is a mere accident, through ignorance on the part of the testator, and I think that, as the tenant for life cannot take, the reason for postponing the children ceases.”

In the case of Lainson v. Lainson, 18 Beav. 1, the testator gave an estate for life to A and on his decease to B in tail. By a codicil he revoked the devise to A. It was held that the estate of B was accelerated and that he took at once. A similar result was reached on a similar state of facts'in Eavestaff v. Austin, 19 Beav. 591. But it has also been held in England that where the heir takes against the will under which he received considerable benefit, those devisees and legatees disappointed by such election may not have a lien upon the estate but may require such heir to account for the whole amount received by him under the will. Greenwood v. Penny, 12 Beav. 403.

This court has recognized the doctriné of acceleration of remainders upon the termination of the life estate of the widow by her election to take under the statute. In re Schulz’s Estate, 113 Mich. 592. But that was a case where none of the legatees were in any way harmed by the application of the doctrine. By the election of the widow to take under the statute their bequests were proportionately diminished, and by the acceleration of their remainders they were proportionately reimbursed.

The supreme court of Ohio in Millikin v. Welliver, 37 Ohio St. 460, has also recognized the doctrine of acceleration of remainders. But that case like the Schulz Case did not involve a disappointed legatee whose legacy was depleted to make up the sum paid to the widow for her statutory right. This was pointed out by that court in the later case of Holdren v. Holdren, 78 Ohio St. 276 (85 N. E. 537, 18 L. R. A. [N. S.] 272), where the court quoted from the former case and said:

“This holding is based upon the doctrine of acceleration, but it must be understood as limited to cases in which that doctrine is applicable; otherwise it is too broad. In that case there was no disappointed legatee, but all of the estate went to the remainder-man. It is well settled, when a widow elects not to take under a will, but to take under the law, her portion under the will will be sequestered to compensate those beneficiaries under the will whose shares are cut down by her election.”

And this was but a reiteration of the early case of Jennings v. Jennings, 21 Ohio St. 56.

So likewise the court of appeals of Maryland recognized the doctrine of acceleration of remainders. Randall v. Randall, 85 Md. 430 (37 Atl. 209), but declined to apply it in a case somewhat similar to the instant case. Hinkley v. The House of Refuge, 40 Md. 461 (17 Am. Rep. 617). Considering the rule it was there said:

“But, while this is the general rule, it is modified under certain circumstances, by the application of the principles of equity, where it is apparent that the event producing the acceleration of the time for vesting the remainder in possession, is not contemplated by the will, and the result produced would contravene the intention of the testator. In this case, it is manifest that it was never contemplated by the testator that the legacies now claimed as payable presently, should be paid before the death of his widow. The renunciation by the widow is an event not provided for by the will; and as by that event a certain portion of the principal or corpus of the estate is withdrawn from the trust intended for the benefit of the children of the daughter and sister of the testator, it is but equitable that they should be indemnified or compensated as far as can be, by the appropriation of the benefit renounced by the widow. This is not an application to compel an election, but to have declared the effect of an election already made; and, in such case the general and. well established principle applies, that a court of equity will assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those disappointed by the election.”

And in the later case of In re Rogers' Trust Estate, 97 Md. 674 (55 Atl. 679), the Maryland court again declined to apply the doctrine because so to do would be contrary to the intent of the testator.

The supreme court of New Hampshire in a case similar, to the Schulz Case (Parker v. Ross, 69 N. H. 213 [45 Atl. 576]), applied the doctrine of acceleration of remainders, but when that court had before it the question of a disappointed legatee whose estate had been diminished by the election of the widow, and such diminution differed in proportions from other legatees (Cotton v. Fletcher, 77 N. H. 216 [90 Atl. 510, Ann. Cas. 1915A, 1225]), the doctrine contended for by the plaintiff here was applied, and the estate given the refractory legatee by the will was held for the purpose of indemnifying the disappointed legatee.

In the case of Jones v. Knappen, 63 Vt. 391 (22 Atl. 630, 14 L. R. A. 293), the court had before it a,case quite similar to the instant case. We quote from the syllabus:

“The election of the widow, who is made life tenant of her husband’s property, to take against his will, does not accelerate the time for distribution so that it may be made during her life time; where the remainder is to be divided between specific and residuary devisees and the result of her election would work inequity by diminishing the residuary, and leaving the specific devisees to be paid in full.”

In this case the court quotes the following from 1 Woerner on Administration, § 119:

“The rejection by the widow of the provisions made for her by the will generally results in the diminution or contravention of devises and legacies to other parties. The rule in such case is that the devise or legacy which the widow rejects is to be applied in compensation of those whom her election disappoints.”

And then says:

“The controlling, and, we think, the more reasonable, principle announced in most of these cases, is the one expressed by Woerner, supra, viz., to use the renounced devises and legacies given by the will to the widow, to compensate, so far as may be, the devises and legacies diminished by such renunciation. When the remaindermen are affected pro rata by such renunciation, acceleration of the enjoyment of their devises or legacies, diminished proportionally, will equitably compensate them, so far as possible, for such diminution. But in this case acceleration of enjoyment would increase the specific pecuniary legacies, to the detriment of the residuary legatees, whose shares lonly are diminished by the renunciation. Applying the principle stated, the life use of the property given by thé will to the widow, and renounced by her, should be used to compensate the residuary legatees, the next of kin of the testator and of his wife.”

Another quite similar case to this one is that of Firth v. Denny, 2 Allen (Mass.), 468. We quote the syllabus:

“A testator in his will, after various absolute devises and bequests, directed a certain sum to be invested, and the income thereof to be paid to his wife during her life, and, after her death, to be distributed among various legatees in certain specified sums, and gave the rest of his estate to his residuary legatees. He died without leaving issue, and his widow waived the provisions of the will in her behalf, and thereby became entitled to a larger share of his estate than the will gave her. Held, that the residuary legatees are entitled, during the life of the widow, to the income of the fund provided for her, and after her death the principal should go to the legatees named in the will, in like manner as if the widow had accepted the provisions therein made for her.”

See, from the same court, Brandenburg v. Thorndike, 139 Mass. 102 (28 N. E. 575).

In McReynolds v. Counts, 9 Grat. (Va.) 242, the court had before it the question here involved. The widow had renounced the provisions of the will, and it was determined that the disappointed legatees were entitled to the estate renounced for the purpose of reimbursing them the amount of their disappointment, and such estate was placed under the control of the court for such purpose.

Mr. Pomeroy in his work on Equity Jurisprudence (1 Pomeroy Eq. Jur. [4th Ed.] § 517) says, in considering the question of elections:

“The other parties interested as' donees under the instrument creating the necessity for an election are affected by it, when made, in the following manner: If the person on whom the duty of electing rests elects to take in conformity with the will or other instrument of donation, he thereby relinquishes his own property, and must release or convey it to the donee upon whom the instrument had assumed to confer it. If he elects against the will or other instrument of donation, he thereby retains his own property, and must compensate the disappointed donee out of the estate given to himself by the donor. A court of equity will then sequester the benefits intended for the electing beneficiary, in order to secure compensation to those persons whom his election disappoints. This rule is applied in many of the American cases cited below to elections made by widows in favor of their dower and against the testamentary provisions, whereby the interests of other devisees were disturbed. Such disappointed devisees 'are held entitled to compensation out of the benefits intended to be conferred by the will on the widow, but which she had rejected.”

See, also, Timberlake v. Parish, 5 Dana (Ky.), 346; Wakefield v. Wakefield, 256 Ill. 296 (100 N. E. 275, Ann. Cas. 1913E, 414); Fox v. Rumery, 68 Me. 121; Lovell v. Charlestown, 66 N. H. 584 (32 Atl. 160); Ford v. Ford, 70 Wis. 19, 54 (33 N. W. 188, 5 Am. St. Rep. 117); Colvert v. Wood, 93 Tenn. 454 (25 S. W. 963); Miller v. Miller, 91 Kan. 1 (136 Pac. 953, L. R. A. 1915A, 671, Ann. Cas. 1917A, 918); Latta v. Brown, 96 Tenn. 343 (34 S. W. 417, 31 L. R. A. 840); Carper v. Crowl, 149 Ill. 465 (36 N. E. 1040); Woods’ Adm’r v. Woods’ Devisees, 1 Metc. (Ky.) 512; 2 Alexander on Wills, §§ 837, 838; 1 Woerner on Administration (2d Ed.), § 119, p. 293; and notes in 12 L. R. A. 227; 14 L. R. A. 293; 18 L. R. A. (N. S.) 272; 27 L. R. A. (N. S.) 602; L. R. A. 1915A, 671; Ann. Cas. 1913E, 416.

We are persuaded that under the great weight of authority the contention of plaintiff’s counsel in this regard must prevail. While the doctrine of acceleration of the time of taking effect of the remainder upon the termination of the life estate by act other than the death of the life tenant (i. e., by the election of the widow to take under the statute), must be recognized and applied in proper cases, such doctrine should not be applied where by the election a portion only of the legacies are diminished in order to make up the amount required by the statute to satisfy the widow’s statutory rights. And that this should be true whether the legacy diminished be a specific or a residuary one. Under such circumstances the disappointed legatees may in a court of equity compel the sequestration of the legacy to the refractory legatee for the purpose of diminishing the amount of his disappointment.

Manifestly this is in consonance with equitable principles. In the instant case the residuary fund given to the plaintiff has been diminished by many thousand dollars in order to discharge the claim of the widow resulting from her election. To adopt defendants’ claim would give to them the $25,000 many years before the time fixed by tÜe testator for its payment. They would not only receive the amount given them by the will, but they would also receive the widow’s life estate renounced by her to the disadvantage of the plaintiff. Equitable principles do not require that this should be done.

We are asked to fix the present worth of the widow’s life use of the $25,000 with a view of finally closing the estate and disposing of all matters at once. The parties interested are all of age and may make such adjustment as they may desire, but we do not feel empowered to fix the present worth of the widow’s use and direct its present payment. We see no- occasion, however, to longer hold the estate open. A trustee may be appointed to handle this fund of $25,-000. He shall annually pay the income thereon to the plaintiff during the life of the widow, and upon her death pay the corpus to defendants in equal shares.

It follows that the decree must be reversed and one here entered in conformity with this opinion. The defendants will recover costs of this court. Neither party will recover costs of the circuit court.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.