text:
    FAIR v. MARTIN.
    Contracts — Actions—Parties Plaintiff.
    Where a third party worked a farm rented by plaintiff, and had an interest in the proceeds of the crops after the debts were paid, but not in the crops themselves, iilaintiff was entitled to bring suit in' his own name for the price of produce sold under a contract signed only by the third party, but based on an oral contract between the plaintiff and the purchaser.
    Error to Shiawassee; Smith, J.
    Submitted December 6, 1900.
    Decided January 29, 1901.

      Assumpsit by Robert C. Fair against John W. Martin for goods sold and delivered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      A. L. Chandler and A. J. Kellogg, for appellant.

      Martin V. B. Wixom, for appellee.
   Long, J.

This action was commenced in justice’s court to recover from the defendant the value of 102 barrels of apples, which plaintiff claims to have sold him for $1.65 per barrel. The plaintiff had judgment in that court. The defendant appealed to the circuit court, where he prevailed. On the trial there the plaintiff testified as to the contract as follows:

“I had some business relations with him [defendant] regarding the sale of apples last fall. I had one meeting with him in Durand. Mr. Martin talked with me in Durand about buying the apples, and I asked him what he was paying. He said, ‘$1.55,’ and I told him I had an offer of $1.75 for No. 1 apples, and he told me I would be foolish to sell my No. 1 apples; they would cull out the bulk of the apples; and to hold them, and he would see and try and do better than any one else by me; that he would take everything except cider apples; and I told him I would hold the apples, and talk with him again before I sold them to any one else. So, on October 4th, he called me up by ’phone, and asked what I had done about the apples. * * * I told him I had received an offer of $1.65. * * * ‘Well,’he says, ‘I will give you $1.65, and if I get them I will hire Covert to pack them.’ * * * I told him at that time I would let him have them at $1.65; and, when Mr. Covert came, Mr. Martin called me up again, and said Covert was there, and I told Covert I had sold the apples to Martin, and that I wanted Martin to give him $25 forme to bind the bargain. Covert spoke to Martin. Martin answered back through the telephone, and said that was all right; he would give me $25. I would recognize his voice over the .telephone as well as any one. I was acquainted with him. I have talked with him since, and he acknowledged that he was the one I talked with over the ’phone. Covert went in there, and packed the apples. I was to draw the barrels out to the farm, board the packers, and draw the apples back, when they were packed, to Bancroft. Mr. Martin was to furnish the barrels. There were 102 barrels delivered.”

It appears further from the plaintiff’s testimony that he received, in addition to the $25, the further sum of $8.25, and that those were the only payments made by the defendant on the apples.

The defendant testified that, when he first talked with the plaintiff, he (plaintiff) said: “Ike [meaning Mr. Covert] had an interest in the apples, and he would not want to sell them until he consulted with him.” Defendant detailed the conversation with plaintiff as related by plaintiff, except as to the closing of the bargain with the plaintiff at $1.65 per barrel. Defendant testified:

“ I told Covert I made the statement what I would give him. He said he thought it would be satisfactory. He told me to call Dr. Fair up at 8 o’clock the next morning, — that would be about the time I would catch him at home. He said, ‘You state to him our bargain, and tell him to meet me at the ’phone at 11 o’clock, and I will be here.’ I called him up the next morning, and I said to him, ‘ Mr. Covert was in here, and made an arrangement about the apples.’ I told him I told Mr. Covert I would give him $1.65 for the apples and 12] cents for packing. I don’t think I told him what arrangement I had made with Covert. I told him Covert said he would be in there, and talk with him over the ’phone. Mr. Covert asked me to do this in order to call his attention to it if he was away. About my making arrangements with’Mr. Covert, he said it would be all right. Covert came in about 11 o’clock that same day. He called up Dr. Fair, turned around, and told me it was all right. After he said it was all right, he drew up a contract.”

The contract reads:

“ Sold to J. W. Martin my crop of number one packing apples now" on trees, estimated at about 200 barrels; to be hand picked, and delivered at Bancroft, when packed, free of charge. Empty barrels to be hauled to the orchard, and men for packing to be boarded by me free of expense. Paid on contract $25. Price to be as follows: $1.65; 12] cents for packing.
[Signed] “I. Covert'.”

At the close of the testimony the court directed the verdict in favor of the defendant. The court took the view of the case that Covert had a legal interest in the apples, and the plaintiff could not maintain his suit.

This charge was based upon the cross-examination of plaintiff, in the course of which he stated:

‘ ‘ I know Isaac Covert. He lives on my farm. I don’t know as he works the farm on shares. He has an interest in the proceeds after the debts are paid, and so on. He had an interest in the money that would come from the apples after the debts had been paid.”

Plaintiff also testified:

“About this arrangement with Mr. Covert, I said he was to have one-third of the proceeds after I paid up his debts and any obligations I had become responsible for. Mr. Covert did not have a third interest in the apples; he had a third interest in what would come from the apples, to be applied on his account, and the balance turned over to him, if any.' I claim now that I reserved the right to say when they were to be sold. When I did sell anything from the farm, he had an interest in the money. I claim he would not have any right of his own accord, without my consent, to sell stuff off the farm; it would be contrary to our agreement.”

On redirect examination plaintiff testified:

“I let the farm in my own name. The crops are all in my own name. The deal between me and her [his wife] is simply a money matter after I am through.”

The plaintiff’s claim was that he rented the farm from his wife for money rent, and that Covert worked for him on the farm, having a share of the money proceeds from the sale of the crops. He testified that Covert had no interest in the crops themselves. There was no testimony in the case disputing this. We think the court was in error in directing a verdict for the defendant. According to the plaintiff’s version, Covert was directed by him to close the bargain at $1.65 per barrel with the defendant. The mere fact that Covert signed his own name to the contract could not affect the right of .the plaintiff to recover. It was in fact the plaintiff’s contract, as he was the legal owner of the apples, and was so understood to be by the defendant at the time of the purchase.

“ It is a general rule of the common law that the action must be brought in the name of the party in whom the legal interest is vested, and that the courts will not, in general, take notice of mere equitable titles and rights of action, as contradistinguished from the strict legal title and interest, so as to invest the equitable or merely beneficial claimant with the ability to adopt legal proceedings in his own name.” Forrest v. O’Donnell, 42 Mich. 558 (4 N. W. 259).

According to plaintiff’s testimony, Covert had merely an interest in the proceeds of sales of the products of the farm.

Defendant claimed that the apples were defective. That question should have been submitted to the jury.

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

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    COY v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.

    1. Street Railways — Fares — Township and Village Franchises.
    Where the councils and township boards of several cities, villages, and townships, under whose ordinances and resolutions an electric railway runs, fix a rate for travel thereon through each city, village, and township respectively, a through passenger is entitled to ride through a township and the villages therein at the township rate, since a village is under the jurisdiction of the township board as to all but village affairs.
    2. Same — Township and City Franchises.
    Whether such passenger would be entitled to ride through a township and a city therein at the township rate, — qumre.
    3. Same — Effect of Franchise.
    Granting that a village has the power to provide, by its franchise to an electric-railway company, that the company may not charge to exceed a specified rate per mile for the carriage of passengers between any two points on its line outside the village, the benefits of the provision accrue to the general public, any member of which, though not a resident of such village, is entitled to be carried at such rate.
    4. Same — Rule as to Procuring Tickets.
    ¿The right of a passenger on a suburban electric railway to be carried at the rate of fare prescribed in the company’s franchise cannot be made dependent upon compliance with a rule of the company requiring the purchase of tickets at regular stations. ^

      Error to Wayne; Donovan, J.
    Submitted December 6, 1900.
    Decided January 29, 1901.

      Assumpsit by Erastus P. Coy against the Detroit,Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hamilton Baluss (T. T. Leete, Jr., of counsel), for appellant.

      J. Emmet Sullivan and Edward M. Vining, for appellee.

      Rehearing denied June 7, 1901.

   Hooker, J.

The defendant is a suburban electric line, whose road has been built and is run under and by virtue of ordinances and resolutions adopted by the respective councils and township boards of the several cities, villages, and townships through which the road has been constructed. These ordinances and resolutions are not uniform. The city of Ypsilanti fixed the rate of fare at 5 cents within the city limits. In the township of Ypsilanti the power to regulate fares is reserved to the township, with a minimum of 10 cents within the township limits. Yan Burén township required that the rate for any distance within the township should not exceed 5 cents, and outside of that township the rate should not exceed 2 cents a mile. In Canton township the rate within the township of Canton for any distance should not exceed 5 cents, and for any distance outside the township it should not exceed 2 cents a mile. In Nankin township the rate for any distance in the township should not exceed 5 cents, and for any distance outside the township it should not exceed 2 cents a mile. The ordinance of the village of Wayne provided that defendant should he entitled to charge at the rate of l£ cents per mile (except as thereinafter provided) for the carriage of any single passenger for a continuous trip between any two points on its line between the cities of Detroit & Ann Arbor. It provided further that no fare for any distance should be less than 5 cents.

The plaintiff is a resident of the village of Wayne, and went from there to the city of Ypsilanti, a distance of 13 miles, upon defendant’s car. He rode upon a ticket purchased at defendant’s office in Wayne, for which he paid 20 cents. He knew that he might have bought a return ticket either at Wayne or Ypsilanti for the same price, but did not. On his return he took .the car at Ypsilanti city, but some little distance from the station. Upon announcing his destination to be Wayne, the conductor demauded 30 cents for fare, which plaintiff paid under protest, and subsequently brought this action in assumpsit to recover the excess of'10 cents. The justice rendered a judgment for 5 cents damages and costs in favor of the plaintiff, and this was affirmed at circuit upon certiorari. The case is before us upon writ of error.

The errors relied upon are stated as follows:

“First. That the justice erred in receiving in evidence the franchise of the village of Wayne for the purpose of fixing the rate of fare to be charged for the carriage of a passenger from the city of Ypsilanti, in the county of Washtenaw, and the village of Wayne, in the county of Wayne, or for any other purpose.
“Second. Because a passenger boarding a car at Ypsilanti cannot avail himself of a lower rate of fare provided in the franchise of the village of Wayne until he has reached Wayne.
“Third. Because the several franchises under which the road is operated between the city of Ypsilanti and the village of Wayne authorize the charge made in this case; and the fact that the plaintiff was a resident of the village of Wayne can make no 'difference.
“Fourth. Because it was the duty of the plaintiff to purchase a ticket at the office of the company, either at Wayne or Ypsilanti, where he says he knew tickets were sold for 20 cents, because he had bought them.
“Fifth. Because the judgment should have been for the defendant.”

The accompanying plat shows the course of defendant’s road.

The defendant’s counsel take the position that, under a rule of the company, persons not purchasing tickets (which can be procured at regular stations only) are charged the sum of the local fares of the cities, villages, and townships through which they are carried. ' In the case of Kissane v. Detroit, Ypsilanti & Ann Arbor Railway, 121 Mich. 175 (79 N. W. 1104), some of these questions were involved. In that case the plaintiff took the car in the township of Canton, with the intention of going to Detroit. He paid, under protest, 15 cents as fare to Inkster, claiming that he was entitled to go for 10 cents. Upon arriving at Inkster he tendered a ticket good for a ride from Inkster to Detroit, issued by defendant under a requirement of the township of Dearborn, costing

13 cents each in lots of five. This was refused by the conductor, who exacted 20 cents. The court held that the plaintiff was under no obligation to pay more than local rates because a through passenger; that Wayne, being a village under the jurisdiction of the township board as to all but village affairs, did not, by its ordinance, take its territory out from the provision of the township resolution as to fares, and that the plaintiff had a right to ride entirely through the township of Nankin for 5 cents, and through Canton for 5 cents; hence his tender of 10 cents to Inkster was sufficient.

It will be observed that the case settles the proposition that a passenger riding through two townships may ride upon local fares, and may not be required to pay a larger sum, computed upon local rates of 5 cents each in the township and village; also, a through passenger might take advantage of local reductions by purchasing tickets in blocks. It may be said that it does not pass upon the question whether the company might have charged 1\ cents a mile for the entire distance. It is true that we cannot say that the distance traveled in that instance would have amounted to more than 10 cents at 1£ cents a mile, but nothing was said about that rate. The claim was made, however, that the defendant had authority to charge 2 cents a mile to through passengers. This was emphatically negatived by the holding upon both branches of the case, which clearly establishes the proposition that a through passenger, so called, may ride through each township for 5 cents, or upon tickets sold at a lower price, regardless of a general mileage rate. Applying this doctrine to the present case, the plaintiff was entitled to ride through the township of Ypsilanti for 10 cents, and through Van Burén, Canton, and Nankin (including the village of Wayne) for 5 cents each. To this should, perhaps, be added 5 cents for his ride through the city of Ypsilanti, for, being a city, it may be contended that it is not affected by the action of the township of Ypsilanti. This would make a total local rate of 30 cents; just the amount charged.

There is another question in the case. It is contended that the provision of the village of Wayne, which was apparently the only one to limit outside travel to H cents a mile, has the effect to preclude a charge of over that rate upon any portion of its line, except as modified by the authority to charge 5 cents for any ride, no matter how short. We have seen that the defendant charges but 20 cents for tickets to cover this distance, but it claims the right to charge local rates where tickets are not bought, and also that only the inhabitants of Wayne are entitled to such fares. It is urged that a conductor has no means of knowing whether a passenger lives in Wayne, and is, therefore, entitled to such a rate, unless he has a ticket. If the village of Wayne had authority to make a contract with the defendant (which does not seem to be questioned, and which, for the purposes of this case, we take to be conceded), we know of no reason why it might not contract for a cent and a half rate the entire length of its line, and, if it did so, any member of the public might claim the benefit of that rate. See Rice v. Detroit, Ypsilanti & Ann Arbor Railway, 122 Mich. 677 (81 N. W. 927, 48 L. R. A. 84).

We think the plaintiff was entitled to recover, and the judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    MAXWELL v. AUDITOR GENERAL.
    Taxation — Local Improvements — Bill to Set Aside Assessment-City as Party — Bill op Review.
    A decree setting aside certain taxes assessed- for local improvements in a city was properly vacated on bill of review filed by the city, where it was not made a party to, nor given an opportunity to be heard in, the original suit.
    Appeal from Bay; Snow, J., presiding.
    Submitted December 7,1900.
    Decided January 29, 1901.
    Bill by Edna Maxwell against Roscoe D. Dix, auditor general, and Charles J. Smith, county treasurer- of Bay county, to set aside certain taxes. There was a decree pro confesso for complainant, after which the city of Bay City, by its mayor, recorder, and city attorney, petitioned for leave to file a bill of review. From an order vacating the decree and dismissing the bill, complainant appeals.
    Reversed.

      A. C. Maxwell, for complainant.

      Horace M. Oren, Attorney General, for defendant auditor general. .

      Brakie J. Orr, for petitioner.
   Long, J.

This proceeding is by petition in the above case for leave to file a bill in the nature of a bill of review against the complainant, Edna Maxwell, for the purpose of having a certain decree entered in said cause reviewed, reversed, and set aside; that the city of Bay City may be made a party defendant in the cause; that the cause may be reheard, and the city of Bay City given an opportunity to make a defense against the allegations contained in the original bill of complaint. The original bill was filed, as alleged in the petition, to set aside certain assessments upon property described in the bill' for certain local improvements in Bay City, to wit, paving taxes for the year 1883, taxes for 1885 (being taxes for 1882 reassessed), paving taxes for the years 1894, 1895, 1896,. and a sewer tax of 1898. The petition shows that, when the original bill was filed, subpoena was served upon defendant Smith in September, 1899; that the appearance of both defendants was entered by the then prosecuting attorney of Bay county; that a stipulation signed by the then prosecuting attorney, dated in December, 1899, admitted notice of hearing of the cause for the September term of 1899. This stipulation was filed in the cause in January, 1900. The petition states that the cause came on to be heard before Judge Snow, of the Tenth judicial circuit; that no witnesses were examined, and no testimony given or received to sustain the allegations contained in the bill; but that a decree was entered in the cause setting aside all such taxes, and directing the auditor general and county treasurer to cancel all such taxes on the books of their respective offices. It is further alleged in the petition that the city of Bay City is the real party in interest, and should have been made a party defendant, but that such city was not made a party, and had no notice or information of the pendency of the cause, and no opportunity to be heard or make any defense, until after the decree was entered therein. It is claimed that the bill should be reviewed, and the decree reversed and set aside, for the following reasons:

1. That the solicitor for the complainant was the circuit judge of said county, and discharged the duties of such circuit judge during the time he was acting as solicitor for complainant in the cause.
2. That the solicitor for complainant was the husband of complainant, and did not address the bill of complaint to any justice of the Supreme Court, but as such solicitor for said complainant addressed the bill to himself as circuit judge.
3. That the said circuit judge, while acting as solicitor for the complainant during his term of office as circuit judge, was not a party to the suit, or interested in the subject-matter thereof.
4. That the said city of Bay City was the real party in interest, and a necessary party to said suit, and was not joined as a party thereto.
5. That the decree was made and granted by the court at a hearing of which the city of Bay City had no notice.
6. That the decree in said cause was made and signed contrary to the provisions of standing rule 14 of said court; none of the evidence in said cause taken in open court having been reduced to writing or typewriting, and filed, as required by rule 14, at any time previous to the time of signing or filing said decree.
7. That no officer, agent, or representative or solicitor for said city of Bay City had any knowledge or notice that said cause was pending, or that it was coming on for hearing, and had no opportunity to present .any testimony.
8. That no testimony was offered in said cause warranting the court in setting aside the taxes referred to in said decree.
9. That no service was had upon the auditor general in said cause.

An affidavit was filed with this petition, sworn to by Brakie J. Orr, who is the present city attorney for the city of Bay City, in which he states on information and belief that the taxes so set aside are valid, and were legally assessed. The affidavit also states that no notice was given to the city of Bay City before decree taken in the original suit; that in the afternoon of December 30, 1899, he was called up by telephone, and informed that such suit was to be heard in court, but that such notice was so short it left him no time to examine and make preparation in the case. It also states that the city of Bay City has a good and meritorious defense to the suit, which it wishes to interpose.

Upon the hearing of the petition in the court below, Judge Snow again sat in the case, and, after hearing it, entered a decree setting aside the original decree, and also dismissed the complainant’s original bill, with costs. Complainant has appealed.

We think the court was not in error in setting aside the original decree, as the city should have been made a party defendant in the suit. It certainly was interested in being heard upon the question of the legality of the local assessments of taxes which were set aside, and therefore a necessary party. It was not made a party, and never has had an opportunity to be heard. We need not discuss the other claimed reasons for setting aside the decree. We think, however, the court was in error in dismissing complainant’s bill. The decree below will be reversed, and the case remanded. The defendant will have 30 days in which to answer the bill. Complainant will recover costs of this court.

The other Justices concurred.


author: Gkant, J.

text:
    KOPELKA v. CITY OF BAY CITY.
    Defective Sidewalk — Contributory Negligence.

      K. stepped into a small hole in a sidewalk in the night. He and others were accustomed to walk over it daily. There was evidence that the hole was filled with leaves and dirt. The jury viewed the walk, and the nearest electric light, if it was burning, was 800 feet distant. Held, that the question of contributory negligence was for the jury.
    Error to Bay; Shepard, J.
    Submitted December 7, 1900.
    Decided January 29, 1901.
    Case by Charles Kopelka against the city of Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff left his home at half past 9 o’clock on November 24, 1899, to go to a grocery near by to buy some tobacco, stepped into a hole in the sidewalk, about 12 inches long by 6 or 8 inches wide, fell, and fractured his ankle. Plaintiff worked in a lumber yard near by, and had for several years walked over this sidewalk to and from his home every day. It was in bad condition. The negligence of the defendant is conceded, unless it was under no obligation to look after the walk.
    The sole defense is, assuming the defendant is liable for the condition of tho walk, that the plaintiff knew of its condition, and that it was so bad that he had no right to walk over it, but should have walked in the street, or passed over to the sidewalk on the other side. The city employed two men in every ward to look after the sidewalks, but they had not reported or repaired this one. Policemen were also required to notify them of all holes throughout the city, but no notice of this hole had been given.' Mr. Orr, the city attorney, was called as a witness by the plaintiff. He went to see the sidewalk the second day after the accident. He described its condition as follows :
    “The hole, I think, was between the fourth and fifth boards. There were no boards broken. There were three stringers under the sidewalk. The sidewalk was from 2y to 3 inches from the ground at the bottom of the planks, by measurement. The highest that the sidewalk was above the ground was 3 inches. Some places it almost touched the ground. I will further say, at the time I noticed the electric light. There were no leaves on the trees at all. The electric light was about 300 feet south of there. Standing on the end of the sidewalk, and stooping down so you could look at the light, the light would shine squarely just past the first tree on the corner, and right down on the sidewalk. * * *

      “Q. How large was this hole in the walk ?
    “¿..The hole, I should judge, was perhaps 6 or 8 inches, maybe 8 inches wide at the widest part, and, I should judge, not more than a foot long.

      “Q. Did it go down far ?
    “¿. No; while I was there it was filled up with dirt and leaves and stuff that had apparently gathered in there and filled it up, so that where the hole actually was, up to the bottom of the planks, it was newly-made dirt and .leaves that had fallen in.

      “Q. This hole was the only defect you observed in the surface ?

      “A. It was the only hole in the sidewalk at that time.”
    Plaintiff testified that he did not know whether the electric light was burning at the time or not. While various witnesses testified to the bad condition of this sidewalk, yet they all used it. Just how long the hole had been there is not shown.
    Besides the testimony appearing upon the record, the jury, at the request of the defendant, were sent to view the sidewalk and the situation. They were therefore in position to determine whether the electric lights, which the defendant claims were burning on the night in question, would shine upon the sidewalk so as to disclose the hole.

      Brakie J. Orr, for appellant.

      Isaac A. Gilbert, for appellee.

       Head-note by Grant, J.

   Gkant, J.

(after stating the facts). 1. It is conceded that the sidewalk was then within and a part of the public highway. As between the public and the city, the latter was responsible for its condition, and liable for injuries resulting from its negligence to keep it in repair. It is immaterial whether the walk was constructed with or without the order of the council.

2. Complaint is made of the following instruction:

“ If, under the circumstances as they appeared, and as detailed to you, he [the plaintiff ] may not have deemed it to be unsafe and dangerous to walk on, and he thought it was proper and suitable for him to walk there, and you find he was justified in using it as he did, then, that place having remained there so long, it was the duty of the city to have put it in repair; and the city, so far as that is concerned, not having put it in repair, in case a person is injured without fault on their part, the city would be liable.”

The objection urged is that the jury would infer that the plaintiff was the one to determine whether he considered the sidewalk safe for him to walk over. Taken in connection with the entire charge, we do not think it possible that the jury could have so understood the instruction. In another part of his charge the court expressly said that if the plaintiff saw or knew of the dangerous place, and there was a safe place right beside it of which he could avail himself, he should have done so. We think, taking the charge altogether’, it was a correct exposition of the law.

3. The question of contributory negligence was for the jury to determine. The case is controlled by Germaine v. City of Muskegon, 105 Mich. 217 (63 N. W. 78);. Schwingschlegl v. City of Monroe, 113 Mich. 685 (72 N. W. 7); Urtel v. City of Flint, 122 Mich. 65 (80 N. W. 991). See, also, Sias v. Village of Reed City, 103 Mich. 312 (61 N. W. 502); Crites v. City of New Richmond, 98 Wis. 55 (73 N. W. 322).

Some questions are raised upon the admission of testimony bearing upon the question of damages. Considering the smallness of the verdict, we do not think it possible to find that the jury were prejudiced by its admission, even if it should have been excluded.

We think the case was fairly tried,.and it is affirmed.

The other Justices concurred.

       I. e., §1,000.


author: Grant, J.

text:
    WILKINS v. GENESEE CIRCUIT JUDGE.
    Appeal — Bill op Exceptions — Notioe op Settlement.

      Defendant, against which, a judgment had been rendered, made a motion for time to settle a bill of exceptions to the first day of the next term. The attorney for plaintiff opposed the motion, but not on the ground that no notice had been given or showing made, as required by Circuit Court Rule No. 47. Held, that plaintiff had waived such notice and showing.

      Mandamus by Rebecca Wilkins to compel Charles H. Wisner, circuit judge of Genesee county, to set aside an order settling a bill of exceptions.
    Submitted December 19, 1900.
    Writ denied January 29, 1901.

      Everett L. Bray, for relator.

      Daniel Heims, for respondent.

       Head-note by Grant, J.

   Grant, J.

Relator obtained judgment against the city of Flint on May 5, 1900. On the same day the attorney for the defendant moved the court for an order giving time to settle a bill of exceptions or move for a new trial till the first Tuesday of September, the first day of the next term. The attorney for the relator appeared before the court and objected to an extension for the time asked, insisting that an extension of 30 days was sufficient. The court, after hearing the arguments of counsel, fixed the time as the 15th day of August. On that day counsel for relator appeared before the circuit judge, and objected for the first time to the settlement of the bill, because Cir. Ct. Rule No. 47 had not been complied with. The court settled the bill. Thereupon the relator moved the court to set the settlement aside, and the motion was refused. Relator now seeks the writ of mandamus to compel the court to make such an order and refuse a settlement of the bill.

It appears that neither the court nor the attorneys had in mind Rule No. 47. Had the attention of the court been called to it, and counsel for relator had objected because such extension would be in violation of the rule, undoubtedly such order would not have been made. The motion was an oral one, made when both attorneys were in court; and no objection was made to the hearing on the ground that no notice had been given, or that there was no showing under the rule for an extension beyond 60 days. We think the court correctly held that the relator had waived the notice and the showing required by the rule.

The writ will be denied.

The other Justices concurred.


text:
    CLANCY v. LEACH’S ESTATE.
    Claim Against Decedent’s Estate — Evidence.

      A parol contract is claimed to have been made 32 years .ago between C. and L., by which L. agreed to convey to C. 80 acres of land in consideration that C. would support L. and his wife during their lives. Both parties are dead. No deed was ever executed. The estate of C. presents a claim against the estate of L. for the support of L. and his wife during their lives. Three years after it is alleged that the contract was made, L. executed his will, to which C. was a witness, of which he was one of the executors, and whose contents he knew, and to which he made no objection. Held, that the will negatived the existence of such a contract, and was a conclusive answer to the claim.
    Error to Sanilac; Beach, J.
    Submitted January 9, 1901.
    Decided January 29, 1901.
    Russell D. Clancy, as administrator of the estate of David Clancy, deceased, presented a claim against the estate of Neal Leach, Sr., deceased, for services rendered by claimant’s decedent. The claim was allowed by the commissioners, and defendant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error.
    Affirmed.
    In 1868 Neal Leach, Sr., owned 80 acres of land, on which he and his wife lived. They had five children, of whom Mary Clancy, the wife of David Clancy, was one. David Clancy owned a farm in the vicinity, on which he lived with his wife and family. Neal Leach, Sr., and his wife were old people, and their son Neal, Jr., for some time prior to December, 1868, had hired one Phillips to work the farm and take care of the old people. This son lived in Manistee. Mr. Phillips informed the son that he intended to leave. His father expressed a desire to have their daughter Mary and her husband live with them. Neal, Jr., saw them, and arranged that they should move to their father’s farm. He reported the arrangement to the old people, and in December, 1868, Mr. Clancy and his wife moved onto the farm, where they lived together as one family until their relations were interrupted by death. Neal Leach, Sr., died in 1875; the son Neal, in 1876; Mrs. Clancy, in 1890; Mr. Clancy, in 1893; and the widow of Neal Leach, Sr., in 1891. After the death of Mr. Leach, Sr., the widow and David’s family continued to live together as one family. The same relations continued during the lives of Mr. and Mrs. Clancy, and after their deaths; Mr. Clancy’s children living upon the farm and taking care of their grandmother until her death. There is testimony that in 1871 Neal Leach, Sr., applied to one Sweet to make a will in favor of Neal Leach, Jr., in trust for David Clancy, to insure the support of himself and wife while they lived. That will was not drawn, because Mr. Sweet said he did not know how to draw such a will. Mr. Sweet testified:
    “The old gentleman, Leach, said why he wanted to give the place to David Clancy, or that David Clancy should have it after his death, was for their good support. I don’t know as he said anything about any arrangement between himself and David Clancy about support.”
    On January 6, 1872, Neal Leach, Sr., executed a will by which he devised to each of his children one dollar, except to his son Neal, to whom he devised the farm on which he lived. The will contained this clause: ‘ ‘ But it is understood that I, the said Neal Leach, Sr., am to have a life lease of the same during my life and the life of my wife.” David Clancy was one of the witnesses to this will. The testimony on the part of the claimant shows that David Clancy and his wife were both present when the instructions to the scrivener for the drawing of the will were given by Mrs. Leach, who acted as interpreter for her husband, who spoke Gallic. He was made one of the executors; Neal, Jr., being the other. This will was admitted to probate in 1898.
    Mr. Phillips testified that Neal Leach, Jr., informed him that the arrangement was that he (Neal, Jr.) was to pay Mr. Clancy a dollar a day for taking care of his father and mother; that about three years afterwards David Clancy told him that they had made a new bargain, and he was to have the farm for taking care of Mr. and Mrs. Leach. One Mrs. Taswell testified that in 1868, about a week after Mr. Clancy moved on the farm, she had a talk with Mr. Leach, Sr., and that he then said at his death “they [Mr. and Mrs. Clancy] were to have the homestead for taking care of him and Mrs. Leach.”
    The estate of David Clancy now presents a claim against the estate of Neal Leach, Sr., for services rendered in taking care of Neal Leach, Sr., and his wife from 1868 to the time of their deaths. The printed record contains no statement of their claim. Claimant introduced testimony to the effect that it was worth five dollars per week to take care of Neal Leach, Sr., from December, 1868, to the time of his death, and that it was worth a little less to take care of his wife during her life. The theory of claimant is that the arrangement was that Mr. Clancy was to have the farm for taking care of Mr. Leach, Sr., and his wife during their lives. Apparently conceding that he was not in condition to enforce this claim, his estate now seeks to recover compensation for the care of them. The court directed a verdict for the defendant.

      Frank F. Burning and Herman W. Stevens, for appellant.

      William H. Burgess and Fred S. Veits, for appellee.

       Head-note by Grant, J.

   Grant, J.

{after stating the facts). Thirty-two years have elapsed since the alleged agreement upon which claimant bases the right of recovery was made. It rested entirely in parol. All the parties to it are dead. The testimony of Phillips and of Mrs. Taswell, both of whom were witnesses for the claimant, is in direct conflict. If the testimony of Phillips is to be believed, Neal Leach, Jr., agreed to compensate Mr. Clancy for the care of his father and mother. The will, made about three years later, is consistent with that theory. If the testimony of Mrs. Taswell be true, then there was some arrangement or understanding by which Mr. Clancy should have the property for taking care of these old people. No case better illustrates the uncertainty of human recollection of conversations after a lapse of 32 years. The best and most reliable testimony is that of the will of Neal Leach, Sr., executed three years after it is insisted this agreement was made. That conclusively shows the understanding of Mr. Leach and his wife, and also of Mr. and Mrs. Clancy, who were present when the will was made, and made no objection thereto.- Mr. and Mrs. Clancy had the benefit of the entire use of this farm during their lives, and their children after them. This would seem to be a reasonable compensation for the care of Mr. and Mrs. Leach while they lived. It is not, however, improbable that Neal Leach, Jr., paid Mr. Clancy under the arrangement as testified to by Mr. Phillips. We agree with the circuit judge that the execution of this will, executed in the presence of Mr. and Mrs. Clancy with a full knowledge of its contents, is a conclusive answer to the claim now set up.

The judgment is affirmed.

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


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    CITY OF DETROIT v. WAYNE CIRCUIT JUDGE.
    1. Declaration — Amendments—New Cause oe Action — Limitations — Action Against City — Notice.
    In an action against a city for wrongful death, the declaration, filed before limitations had run, was demurrable, in that it failed to show that the demand had been presented to the common council, as required by the city charter, or that notice of the inj ury had been given the city law department within three months from its occurrence, as required by the charter. After the expiration of the period of limitation, an amended declaration was filed, which was the same as the original one, save that it, showed a compliance with the charter provisions. Held, that the amended declaration did not introduce a new cause of action.
    2. Mandamus — When Lies.

      Mandamus is not the proper remedy to review the action of the circuit judge in permitting the filing of an amended declaration after the period of limitations had expired, over defendant’s objection that the proposed amendment would introduce a new and different cause of action.

      Mandamus by the city of Detroit to compel George S. Hosmer, circuit judge of Wayne county, to strike a declaration from the files.
    Submitted January 8, 1901.
    Writ denied January 29, 1901.

      John W. McGrath, for relator.

      Thomas W. Thompson (Foster, Frazer & Aldrich, of Counsel), for respondent.
   Long, J.

On October 8, 1900, Frank Drexler, administrator of the estate of Frank J. Drexler, deceased, commenced a suit against the city of Detroit by filing a declaration, alleging that his intestate was killed October 10, 1899, while in the employ of the park board, by reason of the negligent acts of said board, its servants, agents, and employés. On October 12, 1900, the city demurred to the declaration, setting up:

1. That the declaration did not allege that the claim of the plaintiff had been presented to the common council for audit and allowance.
2. That the declaration did not aver that notice in writing had been given, within three months from the time of such 'injury, to the law department, of the time, place, and cause of the injury.

On the 23d of October, 1900, plaintiff filed an amended declaration, which set up the matters omitted in the original declaration. On November 13, 1900, the defendant moved the court to strike the amended declaration from the files, and on the 19th of that month the court denied the motion, on the ground that, although the amended declaration was filed after the statute of limitations had run the full period, it did not set up a new cause of action. Application is now made to this court for mandamus to compel the court below to set aside that order, and to strike the amended declaration from the files.

The charter of the city provides:

‘ ‘ It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city that it has never been presented to the common council for audit or allowance; or, if on contract, that it was presented without said affidavit, and rejected for that reason; or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.” Section 17, chap. 5, charter of Detroit.

Section 46, chap. 11, provides that:

“No action shall be brought against said city, nor any of its boards, commissions, or officers, for any negligent injury, unless it be commenced within one year from the time when the injury was received, nor unless notice shall be given in writing, within three months from the time of such injury, to the head of the law department, or to his chief assistant, of the time, place, and cause of such injury, and of the nature thereof.”

It will be noticed that the amended declaration sets up the facts required to be set up by the city charter, and the only question for determination is whether, in a case commenced by declaration, which fails to set forth a cause of action, the plaintiff, after the statute of. limitations has run, may be allowed to file a new or amended declaration, which does set forth a cause of action.

. The amended declaration in the present case was not filed until after the lapse of one year from the time when the injury was received. Circuit Court Rule No. 10 provides, by subdivision a:

“The plaintiff may, at any time before plea or demurrer, or within ten days after plea or demurrer, amend his declaration in matter of substance or form, of course, and without costs, unless the cause shall have previously been noticed for trial, in which case special leave of court shall first be obtained.”

Subdivision b provides:

“The defendant may, within ten days after plea or demurrer, amend the same in matter of substance or form, of course, and without costs, unless the cause shall have been previously noticed'for trial,” etc.

The limitation upon this rule is that a new cause of action — that is, a different cause of action from that attempted to be set up in the original declaration- — -cannot be set up by an amendment after the statute of limitations has run against the cause of action.

In the case of Pratt v. Montcalm Circuit Judge, 105 Mich. 499 (63 N. W. 507), this question was discussed at some length. It was there said:

“It has been held in a number of cases that an amendment introducing a new cause of action cannot be permitted after the statute of limitations has run against the cause of action so sought to be set up. People v. Newaygo Circuit Judge, 27 Mich. 138; Nugent v. Kent Circuit Judge, 93 Mich. 462 (53 N. W. 620), and cases cited. But in the present case the amendment does not, in our judgment, introduce a new cause of action. The declaration as amended relates to precisely the same state of facts, and no new theory is evolved by the proposed amendments, which simply amplify the averments contained in the. original declaration by statements in no way inconsistent with those originally set out. It is a question of acknowledged difficulty to ascertain in just what cases an amendment may be said to set out a new cause of action; but we think the result of the authorities is well summarized in 1 Enc. Pl. & Prac. 564, as follows: ‘As long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.’”

Applying the rules laid down in that case, we are satisfied that the amended declaration does not set up a new cause of action. It alleges a cause of action accruing to the plaintiff for the negligent killing of his intestate, October 10, 1899, by reason of the negligent acts of the park board, its servants, agents, hnd employes. The city charter, at most, only compels the plaintiff in such actions to give notice to the law department, so that investigation may be had before suit brought, and to limit the time within which suit may be brought. The suit was brought within the year required by the charter. The amended declaration set up the additional facts that the claim had been presented to the common council for allowance, and that notice had been given to the law department within three months from the date of the injury. These facts were consistent with the facts alleged in the original declaration, and did not introduce a new subject of controversy, but more fully set out the plaintiff’s claim, so as to comply with the provisions of the charter. We think the case falls within the rule laid down in Pratt v. Montcalm Circuit Judge, supra, and that the court below was not in error in holding that the amended declaration did not set up a new cause of action. The writ of mandamus must be denied.

Another reason why the writ must be denied is that mandamus is not the proper remedy.

The other Justices concurred.


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    CLEAVES v. WALSH.
    Option Contract — Alteration.

      C. & C. by letter asked W. & IT. for an option for six months for the purchase of certain real estate. W. & TJ. replied by letter, giving an option for six months for the sum of §2,500. C. & C. accepted, and notified W. & U. that they were ready to take the deed. W. & U. then prepared the deed, and W. brought it from Cleveland, Ohio, to Houghton, Mich., to consummate the agreement. C. & C. asked for 10 days in which to procure the money. By arrangement the deed was left in escrow, to be delivered upon the payment of the money, and no further steps were taken until the last day provided by the original offer. Held, that the original offer was superseded by the subsequent agreement, and that C. & C. lost all right of purchase by their failure to comply with that agreement.
    Appeal from Houghton; Streeter, J.
    Submitted January 10, 1901.
    Decided January 29, 1901.
    Bill by Stephen E. Cleaves and William S. Cleaves, copartners as Cleaves & Son, against James P. Walsh and Emmet A. Upstill, copartners as Walsh & Upstill, and the Copper-Range Company, for the specific performance of a land contract. Prom a decree dismissing the bill, complainants appeal.
    Affirmed.
    Complainants reside in Houghton, Mich. Defendants Walsh and Upstill reside in Cleveland, Ohio. On November 19, 1898, complainant S. E. Cleaves, on behalf of Cleaves & Son, wrote to defendants Walsh & Upstill, asking for an option for the purchase of certain real estate situated in Houghton county, known as the “Eureka Property,” and that the option be made for six months. On November 23d Walsh & Upstill wrote to Cleaves & Son, “If you can arrange to take it within the next six months, you can have it for an even $2,500; and this letter jnay be considered as an option for that length of time.” The letter further proposed that they would take a down payment of five to eight hundred dollars, and approved paper or mortgage for the balance. They further stated that, if the proposition was not in the shape desired, Cleaves & Son might have a paper drawn up, such as they desired, forwarded to them, and they would execute it. Nothing further was done until February 15th following, when Cleaves & Son informed Chadbourne & Eees, who were attorneys for Walsh & Upstill, that they were ready to take the deed, requesting them to so communicate to Walsh & Upstill, and asked to have the deed made in the name of Letitia A. Cleaves, the wife of complainant William. Chadbourne & Eees, by letter dated February 15th, communicated this request to Walsh & Upstill. The deed was duly executed to Letitia as requested, and was brought to Houghton by Mr. Walsh. An interview took place between complainant William, Walsh, and Mr. Eees on February 25th. Mr. Walsh supposed that the transaction would then be closed. Mr. Cleaves asked for further time to get the money from Boston. Mr. Walsh at first objected, but finally it was. agreed that the deed should be left in escrow with Chadbourne & Eees, and 10 days given complainants, or their assignee, Letitia, to produce the money and take up the deed. It was further agreed that the letter of November 23d, which contained the offer of sale, should be assigned by Cleaves & Son to Letitia A. Cleaves. This was done. Neither complainants nor their assignee tendered the money to Chadbourne & Eees, or paid any attention whatever to the matter. At the expiration of the 10 days, Chadbourne & Eees returned the deed to Walsh & Upstill. Nothing further was done until the 23d of May, the last day of the life of the option, when Mr. Cleaves notified Chadbourne & Eees that they desired and were ready to pay the $2,500. Chadbourne & Eees informed him that they had no further authority in the matter. Mr. Cleaves then telegraphed the money to Cleveland, and a tender of the |2,500 was made. The defendant the Copper-Range Company is a subsequent purchaser, subject, however, to the rights of the complainants, inasmuch as the purchase was not made by them until after a lis pendens was filed. This bill is filed to enforce the specific performance of a contract claimed to exist by virtue of the acceptance by complainants of the offer contained in the letter of November 23d. A decree was rendered dismissing the bill.

      Ball & Ball, for complainants.

      Chadbourne & Bees, for defendants.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The circuit court held that Cleaves & Son had accepted the offer contained in the letter, and that this acceptance made a binding contract. In this we think the court was correct. The notification by complainants to Walsh & Upstill’s attorneys that they were prepared and ready to take the deed and pay therefor, and the letter written by the attorneys to Walsh & Upstill,. constituted a valid contract. The contract then was that complainants should pay $2,500 upon the production of the deed. The deed was produced, properly executed, and ready for delivery upon the payment of the money. Complainants then asked for 10 days in which to procure the money. This was agreed to, and the deed left in escrow, to be delivered upon the payment of the money, if paid within 10 days. The court held that this arrangement put an end to the option and took the place of it, and dismissed the bill.

No authorities are cited by either party as to the effect of the new arrangement made on February 25th. The learned counsel for complainants insist that it had no effect upon the original offer, and left them free to accept at any time within the six months. We are of the opinion that a new agreement was made, which superseded the previous agreement. Complainants then and there agreed to pay $2,500 within 10 days, and Walsh & Upstill agreed to leave the deed in escrow for that length of time, to be delivered upon such payment. While this agreement was made pursuant to the offer and its acceptance, yet it was another and independent agreement, upon the execution of which depended the rights of the parties. Complainants failed to perform it, and the custodians of the deed returned it, as they were legally bound to do. This ended the matter. We think the conclusion reached by the circuit court was correct.

Decree affirmed, with costs.

The other Justices concurred.


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    LINDOW v. WEBBER.
    Appeal — Question of Faot.

      The question being one of faot, no syllabus is required.
    Appeal from Tuscola; Beach, J.
    Submitted January 10, 1901.
    Decided January 29, 1901.
    Bill by Charles Lindow and Eliza Lindow against John Webber and Ada L. Cash to have a deed declared an equitable mortgage, and for an accounting. Erom a decree finding a balance due to defendants, complainants appeal.
    Modified.

      Frank L. Fates, for complainants.

      T. W. Atwood, for defendants.

      By Grant, J.

   Grant, J.

The purpose of this bill is to set aside a deed made by complainants, May 3, 1880, to defendant Webber, to have it declared a mortgage, and to secure an accounting. The case was heard upon pleadings and proofs taken in open court. At the commencement of taking proofs, defendants conceded that complainants might have a decree for the land upon payment of the amount due. The case proceeded upon that theory. Decree was rendered for defendants for $3,200, and sale ordered upon failure to redeem. The issue is one of fact only. An examination of the proofs leads us to the same conclusion as that reached by the circuit court.

The decree inadvertently omitted to provide for the payment by the defendants of the mortgage held by defendant Cash, and which was given by defendant Webber. The decree will be modified so as to deduct the amount due upon this mortgage, unless defendants procure its discharge. Defendants will recover costs.

The other Justices concurred.


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    FISHER v. WINEMAN.
    Res Judicata — Claims por Labor — Preferred Debts.

      1. A judgment is not conclusive against one not a party to the suit.
    2. Section 2, Act No. 94, Pub. Acts 1887, is void because it provides no method for determining questions of insolvency and preference between those who alone are interested in those issues.
    Error to Wayne; Hosmer, J.
    Submitted January 11, 1901.
    Decided January 29, 1901.
    Replevin by Frank E. Fisher against Hugo A. Wine-man and others. From a judgment for defendants, plaintiff brings error.
    Reversed.

      This is an action of replevin. Plaintiff claims title under a chattel-mortgage foreclosure sale. Defendant Wineman claims title as a judgment creditor of the Fisher Electrical Manufacturing Company. The other two defendants are the officers who made the levy under the execution. The Fisher Electrical Manufacturing Company executed a mortgage February 10, 1898, to George W. Bates, as trustee, to secure the payment of $6,037.08, according to certain promissory notes executed by the Electrical Manufacturing Company to the Detroit Savings Bank. Sale upon the foreclosure was made March 9, 1898, to George W. Bates. On October 11, 1899, Bates executed a bill of sale to plaintiff. Defendant Wineman was-an employé of the Fisher Electrical Manufacturing Company; brought suit in justice’s court for the amount due him, and recovered a judgment for $251.16. The summons, issued May 25, 1899, was in the usual form. The declaration was on the common counts in assumpsitj plea, the general issue. Plaintiff filed a bill of- particulars for work and labor performed immediately preceding February 15, 1898. In the judgment entry it was stated that the entire amount of said judgment was for labor, and that the same was a preferred claim under Act No. 94 of the Public Acts of 1887 (3 Comp. Laws 1897, §§ 9550-9552). Execution was issued on said judgment November 28, 1899, which execution recited that the judgment was for labor, and that it was a preferred claim under said act. The officers levied upon the goods and chattels which had been sold under the foreclosure sale.
    Plaintiff made his case by introducing the foreclosure proceedings and bill of sale, and rested. Defendants then introduced the record of the judgment in the justice’s court, the issuing of the execution, the levy upon the property, and rested. Plaintiff then moved for judgment. Defendants insisted that the judgment of the justice was conclusive. The court held that the judgment was not binding upon the plaintiff, because (1) he was not a party to the suit; and (2) because section 2 of the act in question makes no provision for determining the insolvency of the debtor,, or that the claim is a labor debt, — and held that this section was nugatory and void. The court then gave defendants an opportunity to put in proofs as to the insolvency of the company and the nature of the debt. To this defendants’ attorney objected. The court then informed him that he should direct a verdict for the plaintiff unless he put in further proofs. The attorney did so under protest, and gave evidence of the nature of the claim and the insolvency of the company. The court left it to the jury to determine these two questions, and they rendered a verdict for the defendants.
    Act No. 94 is printed in the margin.

      George W. Bates, for appellant.

      William Stacey, for appellees.

       Head-notes by Grant, J.

         I. e., the date on which the mortgage was filed.

       Act No. 94, Pub. Acts 1887:
      “An act to make all debts for labor preferred claims against the estates of debtors becoming insolvent, and give the same precedence over all debts not a lien on such estates prior to the performance of such labor.
      “Section 1. The People of the State of Michigan enact, That all debts which shall be owing for labor by any person or persons or corporation at the time he, they, or it shall become insolvent shall be preferred claims against the estate of such insolvent debtor or debtors, and have precedence in the payment thereof over all debts owing by such insolvent debtor or debtors at the time of becoming insolvent, which shall not have become a lien on such estate, or some portion thereof, prior to the performance of the labor for which such debts for labor shall be owing.
      “ Sec. 2. In case of suit upon any such preferred claim, or any claim a part of which is preferred, as above provided, and the same be prosecuted to judgment, the court rendering judgment thereon shall specify in such judgment the part, portion, or amount for which the same is a preferred claim hereunder against the estate of the defendant or defendants, and thereupon executions may be issued from said court requiring that the amount of such preferred claim be first made out of the goods and chattels, and, for want thereof, then of the lands and tenements, of the defendant or defendants therein named, and that the remaining portion of such judgment, if any, shall be collected and made under said execution [executions] as any other unpreferred claim is required to be collected and made under the statute in such case made and provided. Any surplus arising from the sale of any property under any such execution shall be disposed of according to law.
      “Seo. 3. Any person having a preferred claim hereunder the amount whereof shall be one hundred dollars or more, or any two or more persons having such claims the aggregate amount whereof shall be one hundred dollars or more, and who may join for the purpose, may proceed in chancery for the appointment of a receiver, •and the marshaling of assets, and the application thereof to the payment of the claim or claims involved, pro rata or otherwise, in case of any fraud affecting such claim or claims, or the recovery, satisfaction, or payment thereof, or if a common-law or other assignment for the benefit of creditors shall have been made by the •defendants or any of them.”

   Grant, J.

{after stating the facts). The contention on the part of the defendants that the judgment of the justice of the peace is conclusive against the plaintiff has no foundation either in law or in justice. An insolvent debtor has no interest to prevent or establish preferences among his creditors. It does not concern him. He has no power to bind them by concessions in suits to which they are not parties. The title to this property had passed from the electrical company to the plaintiff, and he was lawfully in possession thereof. To make such a judgment conclusive upon the plaintiff would be in direct violation of the constitutional provision that “no person shall be deprived of his property without due process of law.” Plaintiff was entitled to his day in court. He had not had it. His property was seized under an execution in a suit to which he was a stranger. If this be the proper construction of this statute, it is absolutely void. Two facts must be established in order to create the preference: (1) That the debt is for labor; and (2) that the debtor is insolvent. The statute makes no provision for bringing in lienors who are so by mortgage, attachment, or otherwise. In somewhat analogous proceedings against partnership associations, the law providing for a levy upon the unpaid stock of the members contains suitable provision for giving the partner his day in court. It was held that the statute provided for due process of law. Rouse, Hazard & Co. v. Wayne Circuit Judge, 104 Mich. 234 (62 N. W. 359, 27 L. R. A. 577, 53 Am. St. Rep. 457). It is significant that, during the 13 years since this act was passed, no attempt has been made, until the one now before us, to proceed in a suit at law under it. Evidently the profession has recognized the difficulty, if not impossibility, of proceeding under it at law. Several cases have been brought under the first and third sections, and all upon the equity side of the court. The title to the act, as well as the language of the first section, leads to the inference that proceedings were contemplated against the estates of debtors, and not against the debtors themselves. Counsel for plaintiff states that he has made diligent search, but is unable to find a law similar to this in any other State, and neither counsel has cited any such law or authorities upon the question.

If it be held that the question of insolvency and of preference can be raised in a collateral suit, which plaintiff was forced to begin or abandon his rights, it would result (1) that the determination by the justice of insolvency and of preference is useless, for it would bind nobody; and (2) that the issues of insolvency and preference must be tried again in every such collateral suit. It must result that these questions would be in issue in every such case, and one jury might decide in favor of insolvency, and another, upon the same state of facts, might not. Section 2 of the statute (Act No. 94, 'Pub. Acts 1887) makes no provisions and provides,no methods for determining questions of insolvency and preference between those who alone are interested in those issues. • We are therefore of the opinion that it is inoperative and void.

The judgment is reversed, and new trial ordered.

The other Justices concurred.


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    LANGE v. WIEGAND.
    1. Wills —Contest —Mental Incapacity — Striking Out Evidence.
    Where evidence of testator’s conduct some seven years before his death and the execution of the will is admitted in a will contest on the' statement of counsel that the acts so testified to, and tending to show mental aberration, will be shown to continue until the time of testator’s death, but no evidence showing the continuance thereof is introduced, it is error to fail to strike out such evidence.
    3. Same — Physician’s Opinion.
    Where it is contended that a testator was not of sound mind when he executed his will, between 10 and 11 o’clock in the forenoon, a physician who attended him shortly after noon of the same day, and who testifies to his mental condition at such time, which is not shown to have differed materially from his condition at the time of the execution of the will, may give his opinion of testator’s mental capacity at the time of such examination.
    3. Same — Beneficiary as Witness — Cross-Examination — Improper Questions.
    Where the sole beneficiary in a will testifies in a contest thereof, but her husband is not a witness, it is error to compel her to state on cross-examination how many times her husband has been arrested in the last seven years and since their marriage, and how many times she has been a witness for him.
    4. Same.
    Where the sole beneficiary in a will bequeathing all of testator’s property, consisting of bank deposits to the amount of 85,000, testified, in a contest thereof, that .the testator, her father, after making the will, handed her his bank books, stating that they were hers, and that his other children had had their shares, it was improper cross-examination to ask the witness if, admitting her claim that each of her brothers and sisters had received in testator’s lifetime sums of 8500 to 81,000 each, she thought it would be the right thing for her to take 85,000.

      5. Same — Undue Influence.
    Where, on the contest of a will bequeathing all of testator’s property to a daughter, all of the testimony relating to its execution was to the effect that the daughter, during testator’s last illness, had the will so drawn at his request, that it was read over to him, and signed by him in the presence of three acquaintances, who signed as witnesses, it was error to refuse to charge that there was nothing to show undue influence.

      6. Same — Witnesses—Weight of Evidence.
    Where several witnesses testified that testator, at the hour the will was executed, showed no signs of mental aberration, it was error to modify a requested instruction that such evidence, if true, showed mental capacity, by the statement that the opinions of witnesses who saw the testator several hours later might be considered in opposition thereto.

      7. Same — Execution—Subsequent Insertion of Date.
    A will is not rendered invalid by the fact that the daughter of testator, who is the sole beneficiary therein, inserts the correct date at the request of the testator on his discovering that it has been omitted.
    Error to Wayne; Donovan,"J.
    Submitted October 3, 1900.
    Decided February 13, 1901.
    Frederika Lange presented for probate an instrument purporting to be the last will and testament of Henry Wiegand, deceased, to the allowance of which Henry J. Wiegand and others filed objections. The instrument was disallowed in the probate court, and proponent appealed to the circuit court. From a judgment for contestants, proponent brings error.
    Reversed.

      Bacon & Yerkes and T. E. Tarsney, for appellant.

      James H. Pound, for appellees.
   Long, J.

Henry Wiegand died in the city of Detroit August 31, 1896, leaving an estate consisting of $1,554.83 deposited in the Wayne County Savings Bank and $3,960.95 deposited in the Detroit Savings Bank. Shortly before his death he made a will, leaving all his property to his daughter Frederika Lange, the proponent. She filed the will for probate, and on tbe hearing in the probate court the other children of Henry Wiegand, to wit, Henry J., William, and John Wiegand, and Catherine Karmann, filed objections to the probate of the will. The probate court refused to admit the will to probate. An appeal was taken to the circuit court of Wayne county, and was there heard before the court and a jury. The jury found against the proponent. She brings the case into this court by writ of error.

The objections filed to the probate of the will are:

1. That, at the time of the execution of the will, Henry Wiegand ivas not of sound mind and disposing memory.
2. That, at the time of the alleged signing of the will, the said Henry Wiegand was a mental wreck, incapable of appreciating the same.
3. That, if the will was ever signed by Henry Wiegand, his signature was procured by undue influence.
4. That the will was never signed or witnessed as required by the laws of this State.
5. That, if he ever signed it, it was procured from him by fraud, and without his knowing or understanding what it was.

It appears from the testimony offered by the proponent that the testator was taken sick some time in the night of the 18th and 19th of August, 1896; that, at about 5 o’clock in the morning, he awakened his daughter, the proponent, and told her that he felt sick, but that at that time he was up, and around the house; that about 8 o’clock he requested her to send over for a neighbor, Henry Kamp, to come and stay with him, and also directed her to go and have a will drawn; that, after Mr. Kamp came, she went to the office of Mr. Willcox, and informed him that her father wished to have a will drawn, and wanted to leave whatever property he had to her; that Mr. Willcox drew the will, and she returned home, arriving there between 10 and 11 o’clock in the forenoon; that, at the request of the testator, the proponent went downstairs, and asked Nicholas Burns and H. Cohen to come upstairs; that they did so, and Mr. Burns, at the request of the testator, read the will over to him; that the testator signed it, and Mr. Kamp, Mr. Burns, and Mr. Cohen, at-the request of the testator, signed the will as witnesses in his presence; that, after the will was signed and witnessed, the testator said it was his will; that, after he had signed the will, he requested the proponent to get his pants; that she got them, and he took a key out of the pocket, and opened a satchel, which he directed her to get; that the testator took out of' the satchel two bank books, and handed them to her, telling her to take them, that they were hers, and at the same time stating that his other children had had their shares.

.Mr. Kamp testified that he had known the testator in his lifetime since 1857 or 1858, and had been intimate with him; that, for about six weeks or two months before his death, he saw him every day, and that he told him a number of times that he was going to make a will, and give what he had to his daughter Rika, the proponent. Harris Cohen testified that he had known the testator five or six years prior to his death; that he was of sound mind at the time of the execution of the will and during all the time he knew him. Andrew Strong testified that he had lived in the city of Detroit for eight years, and knew the testator; that prior to that time he lived in the township of Taylor, where the testator lived, from 1866 or 1867 up to the time'of his coming to Detroit, eight years before; that the testator held the office of justice of the peace in that township; that he was a man of sound mind at the time of the execution of the will; that he met him many times in Detroit, and had had a conversation with him about two weeks before he died, in which he stated that what he had left of his property would go to the proponent. Several other witnesses were called, who had known the testator in the city of Detroit and up to the time of his death, who testified that he was of sound mind up to the time of the making of the will.

The contestants called several witnesses, who testified that the testator was not of sound mind. Some of this testimony was objected to on the ground that these witnesses had not known the testator since the time he left the farm, in 1889, some seven years before the will was made. The court admitted this testimony upon statement made by counsel that several acts stated by the witnesses, which they thought were some proof of mental aberration., would be shown to continue down to the time of the death of the testator. This, we think, they wholly failed in doing. Nothing was shown by these witnesses which had any bearing on testator’s competency during the time he lived in Detroit. The court should not have permitted this testimony to be given, or at least should have stricken it out, unless some testimony was offered showing the continuation of such claimed mental aberration up to or near the time of testator’s death.

It appeared from the testimony that, soon after this will was executed, the testator began to fail rapidly, and there is some testimony tending to show that in the night prior to the making of the will he had a slight stroke of paralysis. Dr. Yates was called in the afternoon after the will was executed. He was asked whether, in his opinion, the testator had sufficient capacity to make a will. This was objected to as incompetent and immaterial. The objection was overruled, and the doctor permitted to answer the question. It is claimed that Dr. Yates was not possessed of sufficient information to admit his opinion as to the competency of the deceased. It appears that the will was signed in the forenoon. The witnesses for proponent do not agree as to the time, but one witness states it as between 10 and 11 o’clock. The doctor testifies as to the time of his attendance, and as to what he discovered, as follows:

“I do not remember the exact time of day, — exactly when I was called in. It was about noon; not before noon. I was associated with Dr. Baker at that time, and had an office in the same building. I found Mr. Wiegand in the bedroom, lying on the bed. I think I was there twice the first day that he was sick, in the afternoon; and I was there with Dr. Baker on the day the old gentleman died; When I first went there, I diagnosed the -trouble with Henry Wiegand as apoplexy. At any time while I was there I did not get an intelligent word out of him. I did not hear him speak at all. I saw Mrs. Lange there at the time. I had a talk with her, and, to the best of my knowledge and belief, the impression I got was that he had been in the same condition from early in the morning. I asked Mrs. Lange if he had spoken at that time, and she said, ‘No,’ although she said that he was against my coming and against her calling for any physician. I do not remember anything else in particular. My impression is now that he was taken ill that morning, and that he was getting worse, and consequently I was called. At the time I was there, I found no movement in his limbs. He could move his head, could drink, could swallow, and could move his lips. I gave him some medicine at that time. I gave him restoratives, but did not give him any whisky or stimulants of any kind. When I was there his eyes were partially motionless, and yet he could see, and I knew he could see. He would look at you, and, although he was looking at you, his attention would not be called sufficient to turn his head. He would see what you were doing if you sat within a certain radius of his vision. He had a partial intelligence, for he would, take something if I offered it to him. I endeavored to speak to him as I would to anybody else, first trying to find out how keen his brain was; and I found I had to speak very decidedly, sharp, and quick, to attract his attention; and I found by sharply doing this he would open his lips, when I would tell him that I wanted him to take some medicine, and would open his mouth. I had a conversation with Mrs. Lange the first time I was there. She said that it was the old man’s intention of giving her all the property, and asked me if I thought he would be able to transact any business in the way of signing papers, and if. it would be possible to restore him to that extent, and I told her I thought it was decidedly problematic; it was improbable. She did not sa,y anything at any time about his having made a will.”

In view of this testimony, we think it was clearly competent for the doctor to express an opinion as to the mental capacity of the deceased at the time he saw him. It did not conclusively appear that the condition of Mr. Wiegand had changed so materially after the time of making the will that the opinion of Dr. Yates as to his mental capacity at the time of his visit was wholly without force.

Frederika Lange was called as a witness in her own behalf. She testified to the testator’s condition at the time the will was executed, and the passing over to her of the bank books in the presence of the three witnesses to the will. On her cross-examination she was asked:

“How many times has your husband been arrested in the last seven years F
“How many times have you been a witness for him ?
“I want to ask you a fair question, — whether or not you know he has been arrested.
“How many times has he been arrested since your marriage ?
“Now, admitting that you claim that Henry got $1,000, that William got $1,000, that your sister got $500, and that you got nothing, so that, about to square you up, would be about the right thing for you to take $4,500 or $5,000, you think, do you ? ”

All these questions were objected to as incompetent and immaterial, the objections overruled, and the witness required to answer them. Mr. Lange had not been produced as a witness, nor had he given any testimony on the trial. The court should not have permitted these questions to be answered. They had no legal connection with the issue being tried, and the contestants had no right to discredit the witness by such questions. In People v. Cahoon, 88 Mich. 456 (50 N. W. 384), the questions put to Mrs. Cahoon were: “Is it not a fact that you and your husband have concocted this whole story?” “You have been a witness for your husband in every lawsuit he has had, have you not ? ” It was held that these questions reflected upon the character of the witness, and should not have been permitted. See, also, Sullivan v. Deiter, 86 Mich. 404 (49 N. W. 261), and People v. Gotshall, 123 Mich. 474 (82 N. W. 274).

The court was asked to charge the jury that there was no evidence tending to show that Henry Wiegand was unduly influenced to make the will in question. This was refused, and the court charged the jury:

“If the jury are not satisfied from the evidence that the paper here offered for probate is the last will and testament of Henry Wiegand, — is not in fact the product of his own free will, but of influence that constrained him to do against his will what he was unable to refuse, — your verdict will be for the contestants.”

We are unable to find any testimony in the record tending to show that there was any undue influence operating upon the mind of the testator at the time of the execution of the will. All the witnesses who knew or could know anything of the circumstances under which the will was executed testified that it was read over to him, and, after being so read, he signed it, and at once passed the bank books over to his daughter, telling her that they belonged to her. The daughter testified that she had the will drawn as directed by her father, and returned it to him for his execution; that he executed it in the presence of the three witnesses; and no testimony was given upon the cross-examination of the proponent tending to show undue influence, and the contestants themselves offered no such testimony.

The court was asked to charge the jury:

“If the statements made by these several witnesses are true, they clearly show sufficient mental competency in Henry Wiegand to make a valid will.”

This was refused, and the court charged the jury:

“If the statements made by the several witnesses Kamp, Burns, and Cohen are true, they show sufficient mental capacity in Henry Wiegand to make a will. Over and against that you put the statements of what the doctors say, and what they say about his not having awakened sufficiently to speak, and so forth. These matters you can remember.”

This was error. The doctors did not see Wiegand until the afternoon of the 19th of August. The will was made between 10 and 11 o’clock in the morning of the same day. He was failing rapidly from a stroke of paralysis. His condition, according to the testimony of several witnesses for proponent, was not alarming while the will was being signed. He lay propped np in bed, and, though his right arm and hand were considerably affected, they testified he could talk, and that he bore no evidences at that time of mental aberration. In the afternoon, however, his condition very much changed. . What his condition was at that time could not be weighed against the testimony of witnesses, who stood unimpeached, as to the condition when the will was made.

It is said, however, by the contestants that the will was improperly executed, because the date was put into it after it had been signed by the testator. Under the circumstances shown, this could have no legal effect upon the validity of the will. It was shown that, after the will was executed, Mr. Wiegand, in looking it over, discovered that the date had not been put in. He then directed his daughter to insert the date in the instrument, and she inserted the true date.

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

The other Justices concurred.


text:
    COLE v. COLE’S ESTATE.
    1. Probate Courts — Jurisdiction—Testamentary Trustee — Refusal to Make Payments.
    Under Act No. 253, Pub, Acts 1899, §§ 23, 24, providing that persons entitled by the terms of a will to the payment of money by a testamentary trustee may present a petition to the probate court praying for a decree directing payment, and that the probate judge, after a hearing, may make such decree in the premises as justice may require, where executors who are directed by the will to pay to a daughter-in-law of the testator sums sufficient for her support, and for the support and education of her children, neglect and refuse to make such payments, the probate court has jurisdiction to compel an allowance to be paid, and to determine the amount thereof.
    2. Same — Appealable Order.
    The order determining the amount of the allowance, and directing its payment, is appealable.
    Case made from Wayne; Donovan, J.
    Submitted October 12, 1900.
    Decided February 12, 1901.
    Carrie Cole petitioned the probate court for an allowance for her support, and for the support and education of her children, out of the estate of Darius Cole, deceased. The probate court made an order for a less amount than was claimed, and petitioner appealed to the circuit court, where she prevailed. The executors, Adelbert R. Lee and Robert Maxwell, assign error.
    Affirmed.

      Wisner & Harvey, for appellants.

      Charles K. Latham and Everett B. Latham, for appellee.
   Long, J.

This is an appeal by the executors of Darius Cole, deceased, from an order of the circuit court directing the payment by them of the sum of $4,000 per year for the support and maintenance of Carrie Cole, widow of the son of the deceased, and for the support and education of her children. It appears that Darius Cole died testate, leaving a son, Frank D. Cole, his sole heir. The ninth clause of the will reads:

“ I direct my executors to furnish funds from my estate to pay all reasonable expenses of living of my son, Frank D. Cole, and his wife and children, during the lifetime of each of the said Frank D. Cole and his wife, and sufficient, also, to secure the education of all the children of said Frank D. Cole now living or that may hereafter be born; and in case said Frank D. Cole should die before all of his children shall become of age, or in case Frank D. Cole shall for any reason become incompetent to properly care for the said children, I direct my executors to see that said children are properly supported and educated.”

The will further directs the executors to invest in first mortgages on improved real estate such funds belonging to the estate as might accumulate, and not be needed for the purposes set forth in paragraph 9.

During the lifetime of Frank D. Cole, the executors paid him the sum of $3,000 per year, under the ninth paragraph of the will. He died April 12, 1899, leaving a widow, Carrie Cole, and seven children. In November, 1899, Mrs. Cole petitioned the probate court for an allowance for her support and the support and education of her children. November 27, 1899, the probate court, acting upon said petition, made an order authorizing the executors to pay her and her children $200 per month for their support. Mrs. Cole, being dissatisfied with the allowance made by the probate court, appealed to the circuit court. The executors then made a motion to dismiss said appeal upon the grounds that the order of the probate court from which the appeal was taken was not an appealable one, and that the circuit court had no jurisdiction. This motion was denied by the circuit court, and, upon an application being made to this court for mandamus to compel the circuit court to dismiss the appeal, the application was denied upon the ground that mandamus was not the proper remedy. Lee v. Wayne Circuit Judge (decided January 31, 1900).

Upon the hearing of this cause in the circuit court, counsel for the executors moved to dismiss the proceedings upon the grounds :

1. That the order of the probate court was not an appealable one, because the probate judge had no jurisdiction to make any allowance.
2. That by such appeal the circuit court acquired no jurisdiction.
3. That, by the terms of the will, the executors thereof were given power to fix a reasonable allowance to the widow and children, to be paid out of the estate.

The court overruled these objections and refused to dismiss the appeal, and after hearing testimony on behalf of the claimant, and no testimony being offered by the executors, entered an order requiring the executors to pay to said Carrie Cole out of said estate the sum of $4,000 for the year from April 12, 1899, to April 12, 1900, and at the rate of $4,000 per year, in monthly installments at the end of each month, from April 12, 1900, until the further order of the court or of such probate court. Error is assigned:

1. On the refusal of the court to grant the executors’ motion to dismiss the proceedings.
2. In entertaining the appeal.
3. In entering judgment in favor of Carrie Cole.

It is the claim of counsel that, the will having given to the executors, in the first place", discretion to fix the' reasonable expenses which were allowable under it, only when the executors neglect their duty can the probate court act; that, upon refusal of the executors to perform their duty, the court may remove them, but that the probate court has no power to fix the allowance. It is said that the petition does not allege that they refused to act, or to act properly. The petition, however, contains sufficient allegations to bring the matter before the probate court, and the evidence shows both neglect and refusal of the executors to pay petitioner anything for support. The circuit judge found that, “some time after the death of Frank D. Cole, Mr. Adalbert R. Lee, one of the executors of the estate of Darius Cole, informed said Carrie Cole that, under the advice of the judge of probate, the executors could not pay anything to her for the support of herself and children without^ a further order from the probate court.” Nothing was paid her by the executors from April 12, 1899, and apparently nothing has yet been paid, though up to the death of Frank D. Cole the allowance of §3,000 was paid to him; and from the testimony in the case it is shown that, to properly support the family and educate the children, it took a much larger amount than that, which Frank D. Cole paid out of his own estate. Darius Cole died leaving a large estate, — an estate worth at least $250,000. It was his intent that, in the event of the death of Frank D. Cole, his widow and children should be provided from the estate of Darius Cole sufficient moneys to pay all reasonable expenses of living and for the education of the children. The executors having neglected, after Frank D. Cole died, to advance out of the estate such moneys, the power certainly rested somewhere to compel action and fix the amount of such advancements. We think the only questions in the case are: Did the probate court have jurisdiction to determine the allowance ? and Is the order made appealable ?

In Hull v. Hull, 122 Mich. 338 (81 N. W. 89), the will provided :

“My will is that, after my debts shall be paid and a monument purchased, as above provided, that the remainder of my property shall go to my wife during her natural life; that is to say, that she shall have it as needed for her support and comfort; and this to include all my property, both personal and real, of whatever kind or nature. After the death of my wife, the remainder of my property shall be divided among the heirs of my blood as follows: * * * I do hereby nominate and appoint my wife, Margarett A. Hull, and my nephew John Hull, son of my deceased brother, John Hull, to execute this will; and I request the said John Hull, my nephew, to continue right along as executor, and that he shall see that the whole of this will is carried out to the letter, and that he shall settle the whole business after the death of my wife.”

It was said by this court:

“ The clause appointing his executors is, we think, sufficiently clear to show the intention of the testator upon this point. * * * One of the duties imposed upon them by the will is to transfer to her, at any time when the income is not sufficient, such of the principal as, in their judgment, may be needed for her support and comfort. Both have given bonds for that purpose, and are liable only for an abuse of the trust reposed in them. They should from time to time, as required by law, file their accounts for allowance by the probate court. Should the executors disagree as to the amount needed, undoubtedly either party might apply to the proper court to determine the question.”

It will be seen that the question as to what was the proper tribunal to apply to was not determined in that case. The emergency had not arisen. It has arisen in the present case.

It was said by Mr. Justice Campbell in People v. Wayne Circuit Court, 11 Mich. 404 (83 Am. Dec. 754):

“ I am very strongly inclined to the opinion that, under our probate system, the court of chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the probate court.”

In Re Andrews’ Estate, 92 Mich. 452 (52 N. W. 743, 17 L. R. A. 296), it was said:

“Indeed, the grant of jurisdiction to probate courts is so general and extensive, under our statute, that to the section conferring jurisdietion the legislature added a proviso that such grant should not be construed to deprive circuit courts in chancery of concurrent jurisdiction.”

The case of People v. Wayne Circuit Court, supra, was referred to with approval in the last-named case.

See, also, In re Sweetser’s Estate, 109 Mich. 198 (67 N. W. 130).

Probate courts are made by the statute courts of record, with a seal; and the statute requires such courts to keep a true and fair record of each order, sentence, and decree made by them. 1 Comp. Laws 1897, § 647. We think, however, without reference to the above cases, the recent statute has plainly conferred jurisdiction upon probate courts in matters of this kind. Act No. 253, Pub. Acts 1899.

Was the order appealable? Section 669, 1 Comp. Laws 1897, provides:

“In all cases not otherwise provided.for, any person aggrieved by any order, sentence, decree, or denial of a judge of probate may appeal therefrom to the circuit court for the same county.”

In Goss v. Stone, 63 Mich. 320 (29 N. W. 735), this court, commenting on the above-mentioned statute, said:

“This language is broad enough to cover any order whatever, and must unquestionably cover any order which affects the merits of a proceeding. The only exceptions practically recognized have been such interlocutory and subsidiary orders as are made during the pendency of suits or proceedings, and which end with or before them. Such instances occur in the appointment of guardians ad litem, temporary allowances of some kinds, and the usual orders and directions regulating the current procedure.”

The present case is brought for the determination of the amount of the allowance undetermined by the will, and which the executors have neglected to determine. We think the order is appealable. See, also, Act No. 253, Pub. Acts 1899.

The order made by the circuit court must be affirmed, with taxable costs to the petitioner, to be paid out of the estate.

The other Justices concurred.

       No opinion filed.