text:
      In re FOERSTER’S ESTATE. GUMTOW v. JANKE.
    1. Wills — Presumptions—Revocation—Loss.
    The presumption, that testator revoked his will, from not finding the instrument or from finding it mutilated, is not overcome by proof that persons who would be injuriously affected by it had opportunities to destroy or mutilate it; but if other suspicious circumstances exist the presence of motive for its destruction may sustain a finding that the will was unlawfully destroyed.
    2. Same — Trial—Findings.
    On the trial of a will contest, findings, in answer to special questions submitted to the jury, that decedent executed the will proposed for probate, were conclusive on the contestant who submitted the questions.
    3. Same — Evidence.
    Upon considering all the testimony in relation to competency of the testator, undue influence, and due execution of the will, it is held, that there was no competent evidence of undue influence but the other questions were for the jury.
    4. Same — Admissions—Revocation, Proof op.
    Statements of the testator, made subsequent to the execution of a will, tending to show his purpose to revoke the will, were properly received in evidence, in connection with affirmative testimony that he destroyed it by tearing.
    5. Same.

      Held, also, that the evidence was insufficient to rebut the presumption that testator had revoked the testament, arising from nonproduction of the instrument, and that the verdict was contrary to the great weight of evidence.
    6. Same — Trial—Special Questions — Jury.
    It was error to submit to the jury a special question as follows; “Did said August Foerster tear or burn said will on August 25th, intending to revoke the same?” The question could not be answered unequivocally and intelligently. ■

      7. Same — Undue Influence.
    Where the contestant, after the death of the testator, presented two petitions to the probate court, stating that the deceased left ho will, and she was his only heir, and proponent claimed the statements were fraudulent, and where the contestant, as an explanation, claimed she did not know the instrument in question was a will, that she had signed the petitions without reading them and supposed her brothers and sisters were dead, the facts had no tendency to establish undue influence.
    Error to Wayne; Mandell, J.
    Submitted October 8, 1913.
    (Docket No. 10.)
    Decided November 3, 1913.
    Emil Gumtow and others presented for probate the last will of August Foerster, deceased. Anna Janke, Marie Remus, and Gustave Foerster contested the allowance of such instrument. From an order denying the petition proponents appealed to the circuit court. Judgment for proponents, contestant Janke.brings error.
    Reversed.

      Arthur H. Covert (Henry B. Graves, of counsel), for appellant.

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

This case presents a contest over a petition to probate an alleged lost or destroyed will of August Foerster, deceased. The petition was denied in the probate court of Wayne county, and proponents appealed to the circuit court where the matter was tried before a jury, which found said alleged lost will to be the last will and testament of August Foerster, deceased. The case is brought into this court upon writ of error by Anna Janke, one of the contestants, and sister of the alleged testator. The proponents of the alleged will are Emil Gumtow and Ernest Gum-tow, children of a sister of the alleged testator’s wife, living on a farm near Néw Boston, Wayne county, Ernest Krause and John C. Hecker of Detroit, who are not related to the alleged testator but were friends of his. There are a number of beneficiaries besides the proponents under the alleged will. A copy of the alleged will, found by the jury to be correct, is as follows:

“August Forster (a widower), of the city of Detroit, county of Wayne, State of Michigan, being of lawful age, sound mind and memory, do hereby make, publish and declare the following to be my last will and testament, that is to say:
“1. I hereby revoke any and all wills by me heretofore made, same to be null and void.
“2. I hereby empower and instruct my executor hereinafter named to pay all my lawful debts and funeral expenses as soon as possible after my decease.
“3. I hereby give and bequeath to my sister, Anna Janke, her heirs and assigns, of Detroit, Mich., the sum of five hundred dollars.
“4. I hereby give and bequeath to Maria Rennis, her heirs and assigns, Berlin, Germany, the sum of five hundred dollars.
“5. I hereby give and bequeath to Carl Foster, his heirs and assigns, of Lignitz, Schlesian, Germany, the sum of five hundred dollars.
“6. I hereby give and bequeath to Gustav Foster, of Mecklenburg, Germany, his heirs and assigns, the sum of five hundred dollars.
“7. I hereby give and bequeath to Ernst Krause, his heirs and assigns, of Detroit, Mich.,, the sum of four hundred dollars.
“8. I hereby give and bequeath to the Arbeiter Society No. 1, of Detroit, Mich, (incorporated), the sum of five hundred dollars.
“9. I hereby give and bequeath to Leo Kemp, M. D., his heirs and assigns, of Ypsilanti, Mich., the sum of two hundred dollars.
“10. I hereby give and bequeath to John Hacker, his heirs and assigns, of Detroit, Mich., the sum of one hundred and fifty dollars.
“11. I hereby give and bequeath to Emilie Gumtow, his heirs and assigns, of New Boston, Mich., the sum of two hundred dollars.
“12. I hereby give and bequeath to Bertha Krechlow, her heirs and assigns, of Ann Arbor, Mich., the sum of two hundred dollars.
“13. I hereby give and bequeath to Emma Baisch, her heirs and assigns, of Ann Arbor, Mich., the sum of five hundréd dollars.
“14. All my wearing apparel I hereby give and bequeath to Carl Gumtow, of New Boston, Mich.
“15. All the residue of my household goods and furniture of every description, I hereby give and bequeath to Emil Gumtow and Ernst Gumtow, of New Boston, Mich., to be divided between them as they mutually agree.
“16. All the residue of my estate, real, personal and mixed, of whatever description of which I may be possessed at the time of my decease, I hereby give, bequeath and devise unto Ernst Gumtow and Emil Gumtow, their heirs and assigns, of New Boston, Michigan, share and share alike, and I hereby charge my above estate with the payment of the above stated legacies.
“17. I hereby appoint and nominate Emil Gum-tow of New Boston, Mich., executor of this my last will and testament with full power of sale any and all of my estate whatsoever and at such price as he shall see just and fit.
“In witness whereof I have hereunto set my hand and seal this 19th day of August, 1910.
“August Foestee.
“The above instrument was at the date hereof signed and declared by the testator as and for his last will and testament, testator signing in our presence and we, at his request and in his presence and in the presence of each of us, have signed our names hereto as attesting witnesses.
“A. J. Hugli,
“Jos. Kaufmann.”

The contestants in the circuit court were Anna Janke, at whose house August Foerster died and where he lived for nearly a year and a half after his' wife died, Marie Foerster Remus and Gustave Foerster, a sister and brother of deceased, living in Germany. Anna Janke is the wife of Herman Janke.

August Foerster, the alleged testator, died September 6, 1910, at the home of his sister, Anna Janke, and her husband, at 744 Jos. Campau avenue, in the city of Detroit. Mr. Foerster came to this country from Germany about 25 years ago, and, after living in Toledo for a while, came to Detroit, where he lived for many years up to the time of his death. His business was that of weaving willow baskets by hand and making baby carriages in a small way, and he and his wife also kept a small candy store for many years on Gratiot avenue. He had accumulated some property, and at the time of his death owned four houses and lots in the city of Detroit, valued at about $8,000, life insurance amounting to $600, and less than $50 in a bank. He had no children and no blood relatives in this country, except his sister, Anna Janke, the contestant.

“Mr. Foerster’s wife died January 16, 1909, at his own home on Sherman street, in Detroit; and soon after his wife’s death he began to take his meals and to stay overnight part of the time at the home of his sister, Anna Janke; and about the middle of April, 1909, he moved over to the house of his sister, where he lived up to the time of his death, except when in the hospital on two occasions for a few days each. During all the time that Mr. Foerster was living at the house of contestant he was in poor health, and much of the time under a physician’s care, suffering from Bright’s disease and hardening of the liver. He grew worse and suffered from a dropsical condition and had to be tapped several times. The alleged will was executed August 19, 1910, at St. Mary’s Hospital. The next day Dr. Heugle (or Hugli) tapped Mr. Foerster and removed about one quart of fluid serum. This dropsk cal condition extended over his whole body. During all the time that Mr. Foerster was living at his sister’s house she nursed him and cared for him. He first went to Harper Hospital for a short time in Mayj 1910. On the last occasion he was in St. Mary’s Hospital from August 17 to August 23, 1910. On the last-named day he was taken back to the home of the contestant, where he remained until his death. He was 58 years old when he died.

At the time the alleged will was drawn in St. Mary’s Hospital, Mr. Foerster also executed a general power of attorney to Mr. Kaufmann, the attorney who drafted the alleged will. This power of attorney authorized Mr. Kaufmann to mortgage any and all property then owned or thereafter to be owned by said Foerster and to deal generally with any of his property as he himself might do. Mr. Foerster then also signed a notice to Herman Janke and Anna Janke that he had appointed Mr. Kaufmann as his attorney to demand and collect all property of said Foerster, including household goods and wearing apparel, at their premises in Detroit. This notice was served on Anna Janke August 20th, but she refused to turn over any of Foerster’s belongings to Kaufmann on this demand, saying that she could not tell what her services for Foerster’s care were worth; that she would have to consult somebody else who knew what to charge for such services. It was conceded that she had been paid $5 a week by Foerster.

On the morning of August 23d Mrs. Janke called at Kaufmann’s office and he went with her to St. Mary’s Hospital, where Foerster then was. She complained that Foerster was not taken care of at the hospital, and that he would have to come home with her. • That same day, in the afternoon, Kaufmann was in St. Mary’s Hospital alone with Foerster, and the latter told Kaufmann that he should leave the furniture with his sister, Anna Janke, and he instructed Kaufmann to draft a codicil to the alleged will, saying:

“My sister is not satisfied and you had better draft a codicil; she will not tell what I owe her, and she makes some,kind of a claim; and in order to save litigation you had better draft a codicil and give her $1,000 more.”

Kaufmann drafted such a codicil, but it was never signed by Foerster.

On the 25th day of August, two days after Foerster was taken back to the home of his sister, he sent to Kaufmann to bring back his papers, and in the afternoon of that day Kaufmann, with Dr. Heugle, one of the witnesses to the alleged will, went to Mrs. Janke’s house, where Foerster then was, and Foerster, in the presence of Anna Janke, the contestant, demanded back the power of attorney from Kaufmann and revoked the power of attorney by writing these words across the face of it:

“Detroit, Aug. 25/10.
“I hereby revoke the within instrument, the same to have no further effect.
[Signed] “August Forster.”

At the same time the alleged will was given to Foerster, at his request, by Kaufmann, who had had it in his possession from the time of its execution up to that time. When the alleged will was handed back to Foerster by Kaufmann, it was in an envelope, and Foerster receipted for the will. Kaufmann charged $35 for his services. Foerster was not satisfied with this charge, but after some explanation and controversy Foerster finally said to his sister, Anna Janke, “Go and get the money and never mind.” She went and got the money and gave it to Kaufmann, who gave a receipt for the same. Foerster then seemed satisfied, and Kaufmann left and never saw Foerster again.

It appeared upon the trial that on June 18, 1910, August Foerster had drawn and signed a holographic will in the German language, which was witnessed by one Dr. George and another witness. Dr. George had been his attending physician at one time. By the terms of this holographic will August Foerster gave to his sister, Anna Janke, all of his property, except that he made legacies to his nephews Emil and Ernest Gnmtow in the sum of $200 each. This paper was handed by Foerster to his sister without stating what it was but with the injunction to keep it with her papers and never give it to any one. Her husband testified that he heard August Foerster call the paper a will. This paper was put in evidence as tending to show decedent’s state of mind at the time.

There was evidence on behalf of the proponents tending to show that the contestant Anna Janke had dominated the said August Foerster during his sickness and residence with her, had kept him secluded, and would not allow his friends, and especially the Gumtows, to visit him, and that at times Foerster had complained of the manner in which he was treated by her. All claimed misconduct and undue influence on the part of Anna Janke were denied by her, and she testified that when she kept her brother secluded it was when he was not in a condition to be visited because of his sickness, and that she acted under the advice of the physician. There was much conflicting testimony pro and con upon this branch of the case, and evidence was offered by the contestant Anna Janke, showing numerous statements made by August Foerster that he intended to give his property to her because of her care of him in his sickness.

There is no dispute that the alleged will of August 19, 1910, was delivered to August Foerster, the alleged testator, by Mr. Kaufmann, as above stated, and it was never seen afterwards by any persons, unless it was seen by the contestant Anna Janke and her husband. They both testified positively that, soon after Kaufmann left, the said alleged will was torn up and burned by August Foerster.

Upon that subject Anna Janke testified as follows:

“At that time my husband came in, because he didn’t know anything about this, and he asked Mr. Foerster and said, ‘Gus, how do you feel today?’ And he says, ‘How shall a man feel; here is the last will.’ And Mr. Janke says, ‘Why, let me see that paper;’ and Foerster said, ‘No, you cannot see it;’ and at that time he tore the last will in pieces; he went then, after he tore the will to pieces, and walked into the kitchen, it was the room next to this one, and I had supper on the stove, and fire in the stove, and he threw the pieces of paper in the stove, the pieces of the will in the stove and burned them up.
“Q. Had-either you or Mr. Janke read that will?
“A. No, we never had a chance to see it. Mr. Foerster didn’t tell us what was in it. We didn’t have a chance. I didn’t see even how the paper looked. I didn’t have any chance. Yes, sir; that was the paper that Kaufmann gave him. Yes, sir; that was the will.”

Upon this subject Herman Janke testified as follows:

“When I entered the house I saw Mr. Foerster sitting in the chair in the sitting room, sitting at the table, and my wife was there too. He seemed to be feeling all right. He had some papers and was reading in it and I says, ‘Well, August, how do'you, feel?’ And he says, ‘How should I feel?’ He says, ‘See here, Herman, Kaufmann was here and brought back the will; he charged me $35 for it;’ and I says, ‘Let me see it;’ and he says, ‘No, you don’t need to see it;’ and he tore it in pieces and walked out in the kitchen and burned it up; and he said, ‘Yes, all come running after me and wants my money, and no one would do anything for me for I stunk too much.’ His mind was clear on.that day. He lived about two weeks, or a week and a half after that, a little over a week and half, lived up to September 6th. He was able to go around the house after that about a week.”

The testimony of the witnesses Jacob Squire, Ludwig Schultz, Christie Meiers, and Christine Meiers was to the effect that after the making of the last will, and after he had returned from the hospital, decedent said on different occasions that his sister, the contestant, was to have all of his property and gave as a reason that she had taken good care of him in his sickness. The case was submitted to the jury.

The court was requested by said contestant, in her third request, to charge the jury as follows:

“I charge you that there is no evidence of undue influence exercised upon the decedent by Anna Janke, his sister, after his return to her home from St. Mary’s Hospital.”

This request was refused.

The court, among other things, charged the jury as follows:

“A will is not presumed to be in force because it was once executed, if it cannot be found. If not traced out of the testator’s hands, it is presumed to have been revoked by him by destruction. That is true. That is merely the presumption with regard to the nonappearance of a will. There is a presumption of law that where the will is not produced, and it has been destroyed, it was destroyed by the testator. That presumption is a presumption of law, but may be overcome by constant (competent?) evidence.”

The following special questions were submitted to the jury by the contestant Anna Janke:

(1) “Did August Foerster execute a will and testament while at St. Mary’s Hospital?” This question was answered by the jury “Yes.”
(2) “If August Foerster did execute a will while at St. Mary’s Hospital, was his mind and memory so weakened by disease, the accumulation of urine, and medicines given to him while there that he did not have sufficient mind and memory to understand what he was doing and his relation to the different beneficiaries?” Answer: “No.”
(3) “Were the contents of said alleged lost or destroyed will, if one was made, the same as the copy thereof offered by proponents Gumtow et all” Answered: “Yes.”

The following special questions were submitted to the jury by the other contestants:

(1) “Did the deceased, August Foerster, on the 19th day of August, 1910, execute a last will and testament containing the same provisions as the copy offered in evidence by proponents on the trial of this cause?” Answered: “Yes.”
(2) “Did said August Foerster then have sufficient mental capacity to understand and execute such a will, and was he free from any undue influence at the time?” Answered: “Yes.”
(3) “Did said August Foerster tear or burn said will on August .25th, intending to revoke the same?” Answered: “No.”

By appropriate assignments of error the'contestant and appellant has, by her counsel, raised and argued the following propositions:

(1) That there was no evidence in the case tending legitimately to overcome the prima facie presumption of revocation of the alleged will because of its nonproduction. It is urged that there is in the record much direct and positive evidence that Mr. Foerster was not satisfied with the alleged will after it was drawn, and that there was much direct and positive evidence that the terms of the alleged will were directly opposed to the testator’s intentions, as often expressed during the last two years of his life.

(2) That there was no evidence of any undue influence exercised upon decedent by Anna Janke, his sister, after his return to her home from St. Mary’s Hospital.

(3) That the verdict was clearly against the great weight of the evidence.

1. It is the claim of appellant that a verdict should have been directed for the contestant, and her counsel quote the following language from Thornton on Lost Wills, §56:

“A will that cannot be found at the death of the testator upon proper search made is presumed to have been destroyed by him animo revocandi. This is particularly true where it is traced to the testator’s possession and never traced out of it. The law presumes that the will was in his possession and so continued until he destroyed it. But whether or not the will is in his possession, the presumption of revocation prevails, with the distinction that stronger evidence to overthrow or rebut it is required in the case of possession than in a case where it is traced out of his possession” — citing a great many cases.

It is urged by appellant that it is not sufficient to show that persons interested to establish intestacy had an opportunity to destroy the will; that proponents must go further and show by facts and circumstances that the will was actually fraudulently or accidentally lost or destroyed and against and not in accordance with the wishes and intentions of the testator ; that there must always be some suspicious facts in addition to the presence of motive and opportunity to justify a finding that the will had been unlawfully destroyed. The rule is stated in Rood on Wills, at section 357, as follows:

“The presumption of revocation from failure to find the will, or from finding it mutilated, is never conclusive and exists only in the absence of evidence to the contrary. All the circumstances of the case may overcome it, though there may not be any one circumstance sufficient in itself to do so. It may be disproved in most States by showing inconsistent declarations of the testator, though not' part of the res gestee; and it may be confirmed by showing other declarations indicating that the will was revoked” — citing Lawyer v. Smith, 8 Mich. 411 (77 Am. Dec. 460), and Harring v. Allen, 25 Mich. 505. * * *
“It has been held that the presumption of revocation from not finding the will or from finding it mutilated is not overcome by proof that persons injuriously affected by it had opportunities to destroy or mutilate it. But that would seem to be a matter that should be left to the jury to determine. Certainly the presence of motive cannot be entirely ignored and may suffice with a few other suspicious facts to justify a finding that the will had been unlawfully destroyed.”

Whether or not the presumption of revocation is rebutted is a question for the jury. Thornton on Lost Wills, § 73, citing cases.

The rule seems to be well stated by the supreme court of Wisconsin in Gavitt v. Moulton, 119 Wis. 35, at page 49 (96 N. W. 395), where Chief Justice Cassoday uses the following language:

“True, the mere fact that the contestant had an opportunity to destroy the will would not of itself overcome the presumption that it was destroyed by the testator with the intent to revoke it; still it is a circumstance to be considered with other proof. 'Thus it is stated by a standard text-writer that:
" ‘If a will last traced to the testator’s custody cannot be found at his death, the presumption that he destroyed it for the purpose of revocation outweighs the probability of its fraudulent and criminal destruction by another when unsupported by any evidence except that of opportunity, though this latter circumstance is always worthy of consideration with other proof.’ Schouler on Wills (3d Ed.), § 402.”

Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499); Ewing v. McIntyre, 141 Mich. 506 (104 N. W. 787); In re McIntyre's Estate, 160 Mich. 117 (125 N. W. 51). Many cases might be cited from other jurisdictions.

A careful examination of this record satisfies us that the court did not err in refusing to direct a verdict in the case, and that there was no error in permitting the case to go to the jury. We are of opinion that there was evidence in the record which, if believed by the jury, warranted them in finding that the alleged will of August 19, 1910, was duly executed by the testator, and that he- was mentally competent to execute the same, and that the same was executed without undue influence. We think that it became a question of fact for the jury.

Their finding upon this subject established the will in the first instance. And their answers to the special questions by contestant are binding upon her. Druck v. Lime Co., ante, 364 (143 N. W. 59-62).

2. We have endeavored to read this record with care, and we are unable to find any evidence of undue influence exercised upon decedent by Anna Janke or her husband' after decedent’s return to the Janke home from St. Mary’s Hospital. There is evidence in the case that Mr. Foerster was not satisfied with this will before he left the hospital, and that he gave instructions to Mr. Kaufmann to prepare a codicil. It is consistent with this record to say that Mr. Foerster became somewhat dissatisfied with conditions at the hospital and wished to return to the home of his sister ; that he did return there of his own volition; that he sent for Mr. Kaufmahn, the custodian of his will and his attorney under the power given him; that he demanded that these papers be delivered back to him; that they were so delivered to him while in his right mind; and from that time on there is no evidence that he did not do with the papers what he saw fit and uninfluenced. Not being satisfied with the alleged will as drafted, it was not unnatural for him to destroy the paper, intending to leave matters in the condition in which they were before the will was executed. His subsequent statements; made after his return home, to witnesses Jacob Squire, Ludwig Schultz, Christie Meiers, and Christine Meiers are consistent, and only consistent with the revocation of the last will. That these statements made by him were competent evidence 'appears to be settled by authority. Lawyer v. Smith, supra; Harring v. Allen, supra. See, also, opinion of Chancellor Walworth in Betts v. Jackson, 6 Wend. (N. Y.) 173.

If we were therefore to eliminate the testimony of Anna Janke and her husband as to the destruction of the will, we have left the fact that the will was traced to decedent; its nonproduction after his death, with the presumption of revocation; and the undisputed evidence that he was dissatisfied with some parts of the will, and his subsequent statements in support of revocation. There was no evidence that either Anna Janke -or her husband ever knew the contents of the will. We think that contestant’s third request to charge should have been given. We find that not only was it not given but that the substance thereof was not given to the jury.

3. Was the verdict clearly against the great weight of the evidence? If, as we have found, the jury were warranted in saying that the evidence was sufficient to establish the will in the first instance, of which we have no doubt, and if we are correct in saying that there was no evidence of any undue influence exercised upon decedent by his sister, the contestant, after his return home from St. Mary’s Hospital, should it not be held that the verdict upholding the will is clearly against the great weight of the evidence? We have looked in vain for any evidence showing any undue influence exercised by the contestant or her husband over or upon the decedent after his return from the hospital. He seems to have been given every liberty and opportunity to see his friends, and he was visited by two of the beneficiaries under the will, Ernest Krause and John C. Hecker. There is no claim that they did not have free access to him and the opportunity to talk with him untrammeled. It appears that he did not mention the will to either of them after his return home. The subject seems to have been dropped by him, and his conduct was consistent only with the theory of a revocation.

The point that the verdict was contrary to the weight of the evidence was raised in a motion for a new trial. The circuit judge gave his reasons for denying the motion in writing, in which he said that in his opinion the verdict of the jury was not against the weight of the evidence. He laid stress upon the fact that, notwithstanding the testimony of Anna Janke, the contestant, and her husband, that the will made at the hospital was subsequently torn in pieces and put into the fire by the deceased, it was likewise true that it was claimed by the proponents and established as a fact that both of these witnesses had not only an opportunity to destroy such will but an interest in so doing. The theory of the charge seems to have been that the will was destroyed.

The third special question proposed by the contestant Gustave Foerster should not have been submitted to the jury. It was a double question and could not be answered unequivocally and intelligently. The question we have already quoted, but, being brief, we will here repeat it: “Did said August Foerster tear or burn said will on August 25th, intending to revoke the same?” It was answered “No.” This answer is consistent with the idea that, although August Foerster did tear or burn the will on August 25th, he did not do so intending to revoke the same. If he did tear or burn the will on August 25th he would naturally intend thereby to revoke the same, unless the acts were done either by mistake, by undue influence, or when not in his right mind; and there is no evidence to support either of such positions. A review of the evidence of the conduct of the parties subsequent to the making of the will of August 19, 1910, satisfies us that there was an entire lack of evidence necessary to overcome the presumption of revocation by the non-production of the will. We think it is our duty in such a case, where the question is raised as it was here by a proper assignment of error after the denial of a motion for a new trial, to set aside the verdict. For authority to do so we need only refer to the case of In re McIntyre’s Estate, supra. We are of the opinion that the verdict was clearly against the great weight of the evidence.

It was claimed upon the argument that there was fraud on the part of the contestant in that after the death of August Foerster she made two petitions to the probate court for the appointment of a special administrator of his estate in which she stated that he left no will, and that she was the only heir. It will be observed that the last will contained a clause revoking all former wills. She was probably wiser than she knew when she said he died without a will, for if the last will was ever made, which the jury found was the fact, it revoked the former will, and when the last will was destroyed the deceased might well be said to have died intestate. Her excuse for this conduct was that she did not know that the paper of June 18, 1910, was a will. She is a German woman and does not read English and testified through an interpreter, and she says that she signed the petitions as they Were prepared by her attorney, without knowing their contents. Referring to her statement that she was the only heir, she claimed that she supposed her brothers and sisters in the old country were dead; that she had written to them and had received no reply, and after so many years had elapsed she supposed them dead. Here again she says she signed the papers as prepared by her attorney. Whether these excuses were sufficient or not, the mere fact that she made the petitions and afterwards made another one praying for the admitting to probate of the will of June 18, 1910, such conduct contains no evidence of any undue influence exercised by her upon the decedent after he left the hospital.

We have not overlooked the other assignments of error but are of opinion that they are without merit.

For the errors pointed out the judgment of the circuit court is reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PATTERSON v. GORE.
    1. Appeal and Error — Saving Questions por Review — Expert Testimony.
    The objection that evidence was incompetent and immaterial did not raise the point for review on error that the witness was not qualified to give testimony upon the question of value of a horse; and where plaintiff bought a horse of defendant which failed to conform to defendant’s warranty and received another horse on returning the first, and it was shown that the second horse failed to conform to the guaranty made by defendant, testimony to show the value of the second horse, which plaintiff also . returned, was not incompetent or immaterial, within such objection.
    2. Trial — Ruling op Court — Appeal and Error.
    The action of the trial court in stating what plaintiff claimed, was not erroneous or reversible in the absence of an exception.
    3. Appeal and Error — Argument.
    Improper or prejudicial argument of plaintiff’s counsel cannot be reviewed unless the record shows that appellant called the matter to the attention of the trial court by objection or request to give instructions.
    4. Amendment — Pleading—Damages—Declaration.
    It was within the discretion of the cou'rt, on appeal from justice’s court, to permit plaintiff to amend his declaration so as to permit the recovery of the profit he would have made on the purchase of the horse if it had been as represented, the parties having tried the case on that theory and testimony being admitted without objection to show the value of a horse that would correspond with the representations.
    5. Damages — Breach op Warranty — Sales—Fraud.
    In an action for breach of warranty of a horse which plaintiff returned on discovering its true condition, his measure of damages was rightly held to be the value of such a horse as defendant represented the animal to be, defendant refusing to refund the price.

    6. Appeal and Error — Exceptions to Charge.
    Without taking exceptions to the charge of the court, plaintiff was entitled to assign error on the charge to the jury pursuant to Act No. 52, Pub. Acts 1901, 3 Comp. Laws, § 10247 (5 How. Stat. [2d Ed.] §12960).
    Error to Grand Traverse; Mayne, J.
    Submitted October 10, 1918.
    (Docket No. 19.)
    Decided November 3, 1913.
    Assumpsit in justice’s court by John Patterson against Chester Gore for breach of warranty. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John W. Patchin, for appellant.

      M. G. Paul, for appellee.

       As to wbat amounts to a breach of warranty of soundness of a horse, see note in 32 L. R. A. (N. S.) 182.

   Stone, J.

This case originated in justice’s court. The return of the justice upon appeal shows that the declaration and bill of particulars were in writing, in a plea of trespass on the case upon promises, to plaintiff’s damage $150. The plea was the general issue. No written declaration or bill of particulars was returned to the circuit court. In the circuit court the trial proceeded upon the merits of the case without any question being raised upon the condition of the pleadings until near the close of the trial.

In his opening statement to the jury, plaintiff’s counsel claimed that in June, 1911, plaintiff purchased a horse of the defendant for $75, and that defendant represented the horse to be sound in every respect except that it was blind; that plaintiff, relying upon the representation, paid for the horse, but it proved to be unsound, wind broken, and worthless; that plaintiff, discovering-these facts, returned the horse to the defendant who accepted it and turned over to the plaintiff another horse to' be tried, which second horse defendant also represented to be free from blemishes and sound in every respect except that it was cockankled; that plaintiff took this second horse and gave it a trial, but it proved unsound and was returned to defendant and accepted by him; that, after some parleying between the parties, the plaintiff demanded his money back, the claim of the plaintiff being stated by his counsel as follows:

“Mr. Patterson demanded his money back with the price of the feed and keep of this worthless horse, the difference between the horse he delivered to him and the kind of a horse he ought to have had. Mr. Gore utterly refused to Mr. Patterson any satisfaction in any shape or manner, so Mr. Patterson brought this action for breach of warranty, and for fraud practiced upon him, and for the $75, for the difference between the horse that Mr. Gore sold him if he had been such a horse as he represented him to be.”

The testimony of the plaintiff tended to support his claim, and he testified, both upon his direct and cross-examination, that if the blind horse had been sound as represented by defendant it would have been worth $125, but that it was worthless-.

There was upon the trial a sharp conflict between the parties as to the terms of the bargain and as to what was done by .the parties; the defendant denying the warranty of the first horse and claiming that the second horse was received in settlement of the whole matter and that the second horse had never been returned to him. This evidence was all submitted to the jury under a lengthy and proper charge.

Upon the trial one Isaac Stanton was examined on behalf of the plaintiff and, while testifying with reference to the second horse, was asked the following question by plaintiffs counsel:

“Q. What, in your judgment, would a horse of that size and description, age, color, weight and condition, afflicted as this horse was, be worth at that time, and the price of horses being as they were at that time?”

This question was objected to by defendant’s counsel as incompetent and immaterial. The court overruled the objection. The defendant’s counsel added:

“Defendant excepts for the reason that it was not at the time that the horse was delivered to this man but it was two or three days later, and, under the circumstances which he has related as he found him there, it would not be competent in this inquiry for him to put a value upon the horse at that time.”

After the close of the plaintiffs testimony, and after the opening statement of the defendant, the court asked counsel a question as to the measure of damages in the case, and, after some colloquy between the court and counsel, defendant’s attorney said:

“What do I understand, then, that their position is?
“The Court: It is that they are entitled to recover the difference between what the blind horse was actually worth at that time and place in that market and what he would have been worth had he been only blind; that is the plaintiff’s position.”

There was no exception to this remark of the court.

In his argument to the jury plaintiff’s counsel, in referring to a witness for the defendant, by the name of Chavaneau, said:

“I say to you, gentlemen of the jury, that Mr. Chavaneau was more or less intoxicated that day. He had been drinking that day and was more or less intoxicated.”

Whereupon defendant’s counsel said:

“Note an exception to that; there is no evidence of it whatever.”

There is some confusion in the record as to the order in which the following proceedings were had. It is apparent that the trial court discovered that there was no written declaration on file in the case; the court saying:

“There is no declaration in the case, simply the justice recites that a declaration in writing was presented and a plea in an action of trespass on the case upon promises.
“Defendant’s Counsel: I would have no objection to his putting that declaration in if he shys it is a copy of the one filed in justice’s court. I didn’t try the case below; Mr. Patchin did; and I looked over the files before coming in here, and there was no declaration filed.”

The record discloses that, on the trial, there was filed the draft of a declaration containing the common counts in assumpsit, with blanks unfilled, and containing the following special count:

“And whereas heretofore, to wit, on or about the - day of-, A. D. 1911, at the township aforesaid, in consideration the plaintiff, at the special instance of defendant, would buy of him (said defendant) a certain horse, at and for the sum of $75, he (the said defendant) undertook and- then and there faithfully promised plaintiff that the said horse was sound and all right except both eyes were blind, and that, if said representations so made as aforesaid or any of them should prove untrue, he (the said defendant) would upon the return to him (the said defendant) of said horse provide the said plaintiff with another horse that was sound and all right in every way.
“And the said plaintiff says that, relying on said representation on or about the date last aforementioned, plaintiff did buy said horse and did pay to defendant the said sum of $75 for said horse, and that defendant,, disregarding his promises and undertakings aforesaid and contriving to injure and defraud said plaintiff, deceived said plaintiff in this: That said horse was not sound and was wind broken at the time of making of said promise by defendant as aforesaid — whereupon plaintiff returned said horse to said defendant, and said defendant took and received back the said horse, and plaintiff says that afterward defendant delivered plaintiff another horse in lieu of said first-mentioned horse so returned to him, and, defendant again disregarding his said promises and undertakings, said last-mentioned horse was not sound and was unable to get out of its stall without help and was defective and absolutely worthless, that plaintiff returned said last-mentioned horse to defendant and defendant accepted same back, that plaintiff thereupon demanded defendant to provide him with another horse which was sound and all right in every way or repay him the sum of $75 so paid by plaintiff for said horse according to said promises and undertakings, but said defendant has. not delivered said plaintiff any horse as promised by him and as undertaken by him to do or repaid the said $75 aforesaid, and therefore he brings suit.”

It appears that later, and during the argument of the case, the following occurred:

“Plaintiff’s Counsel: I desire to amend the declaration in this case to correspond with the proofs to put in damages for the breach.
“Defendant’s Counsel: The case was not tried upon that theory at all, your honor.
“Plaintiff’s Counsel: Yes, sir; it has been so tried. Now, I think it would hardly be fair to be deprived of that on account of the declaration varying somewhat from the proofs. I desire at this time to offer an amendment that would cover it. It could not work any hardship upon the defendant. I move to amend the declaration in the case to contain the following:
“ ‘And whereas heretofore, to wit, on or about the 7th day of June, 1911, at the township aforesaid, in consideration that the plaintiff would buy from him (the said defendant) a certain horse at and for the sum of $75, he (the said defendant) then and there undertook and then and there faithfully promised and represented that said horse was sound and all right except that both eyes were blind. And that said plaintiff, relying upon said representation so made as aforesaid by the said defendant, purchased said horse for the sum of $75 and paid the said sum of $75 to the said defendant, relying upon said representations and guaranty of said horse so made as aforesaid. But that in truth and in fact the said horse was not sound and all right except as to both eyes being blind but was otherwise defective and unsound and not all right in the fact that said horse was wind broken and absolutely worthless for the purpose for which the said plaintiff was buying said horse. By reason of which representations and the breach thereof the plaintiff has suffered great damage, to wit, $100.’ ”

This amendment was allowed over the objection and exception of defendant’s counsel.

In its charge to the jury the court, among other things, said:

“Now, if you find in accordance with the claim of the plaintiff that the defendant warranted this horse to be sound in wind, and that it was not sound in wind (and that is the only fault which was alleged against the horse), if you find that the defendant warranted this horse to be sound in wind, and the plaintiff, relying upon that warranty, took the horse and discovered that it did not meet the requirements of the contract and returned it to the defendant, and that the defendant accepted it and turned over to him another horse to try out, and that he later returned this horse as not meeting the requirements, then the defendant would be liable upon his warranty and must respond to the plaintiff in such sum as the plaintiff has suffered by reason of this breach of warranty. Now the damages under the declaration which he would be entitled to recover would be: The difference between the value of the horse at the time he accepted it (that is, at the time of the bargain), the actual value of the horse, and what it would have been worth had the horse been as warranted. The plaintiff claims that such a horse would have been worth $125; that he gave $75 for it; and that he is entitled to get his money back and the profits.”

The jury returned a verdict for the plaintiff in the sum of $125, and judgment was entered accordingly, with costs of suit. The defendant has brought the case here upon writ of error, and the assignments of error are as follows:

(1) That the court erred in permitting the question asked of the witness Isaac Stanton, above quoted, to be answered.

(2) That the court erred in its ruling, above quoted, following the question of defendant’s counsel: “What do I understand, then, that their position is?”

(3) The court erred in permitting plaintiff’s attorney, in his argument to the jury, to use without correction the remark above quoted concerning the witness Chavaneau.

(4, 5) The court erred in permitting the amendment that was allowed at the close of the testimony in the case, against the objection and exception of defendant’s counsel, after admitting that there was no declaration on file in the cause.

(6) That the court erred in instructing the jury that the measure of damages in the action would be the difference between the value of the horse at the time plaintiff accepted it and what it would have been worth had the horse been as warranted, and that plaintiff was entitled to get his money back and the profits.

(7) The court erred in allowing the jury, under the testimony, to find a verdict for more than the sum paid by plaintiff for the horse, together with interest.

We will consider these assignments of error in their order.

(1) The question asked of the witness Stanton was objected to as incompetent and immaterial. In his brief defendant’s counsel insists that it did not appear that the witness Stanton was qualified to speak upon the subject of the value of this second horse; that it was not shown that he knew the value of horses. We do not deem this testimony very material, as it had to do with the second horse which the jury must have found was returned to, and accepted back by, the defendant. We think, however, that defendant’s counsel should be limited to the objection stated upon the trial, and we cannot say that the evidence was either incompetent or immaterial. We are of opinion that the court did not err in overruling the objection.

(2) As we have already stated, the ruling of the court here complained of was simply the statement of the position and claim of the plaintiff, and the ruling was not excepted to by defendant’s counsel, and therefore no question is presented to us upon this subject.

(3) The record does not disclose that the attention of the court was called to the argument of plaintiff’s counsel with reference to the witness Chavaneau. The court was not asked to rule upon the matter, nor was its attention called to it by any request to charge. Under our repeated decisions no question is here raised for our consideration.

(4, 5) These assignments of error deal with the ruling of the court permitting the filing of the amendment to the declaration. An examination of the record shows that the case was tried upon the theory that the plaintiff had returned the blind horse because it did not comply with the warranty claimed; that plaintiff claimed the horse was worthless and was accepted back by the defendant; and that the plaintiff had suffered damages by reason of the breach of the contract. No objection appears to have been made to the introduction of this evidence. The plaintiff had testified, both upon direct and cross-examination, that had the horse been as represented it would have been worth the sum of $125. This question was submitted to the jury. Our statute of amendments (3 Comp. Laws, section 10268) is very broad and in the furtherance of justice has been liberally construed by this court. There was no request to postpone the case because of this amendment, and we think that under .the circumstances such amendment was permissible. Garnsley v. Boyce, 158 Mich. 8 (122 N. W. 371).

(6, 7) We find no error in the charge of the court and are of opinion that the rule upon the subject of the measure of damages was properly stated to the jury.

Counsel for appellee urges that the assignments of error relating to the charge of the court should not be considered by us because no exception was taken by appellant’s counsel. Counsel has evidently overlooked our statute (section 10247, as amended by Act No. 52, Public Acts of 1901, 5 How. Stat. [2d Ed.] § 12960), which permits assignments of error upon the charge of the court, and upon refusals to charge, without taking exception thereto in the trial court.

A question argued by appellant’s counsel in his brief but not covered by any assignment of error seeks to raise the point that the verdict and judgment, being for $125, exceed the ad damnum clause in the amendment to the declaration, which states plaintiff’s damages to be $100, and that for this reason the judgment is erroneous. Bearing in mind that this case originated in justice’s court, and that the return of the justice shows that plaintiff’s damages were claimed to be $150, that the amendment allowed was simply an amendment to the declaration, and not a new amended declaration, and that the question of the amount of the ad damnum clause was nowhere called to the attention of the court, but that the trial proceeded on the theory that the plaintiff was entitled to recover his damages by reason of the breach of the contract of warranty under which his , damages had been claimed to be $125 at least, and that such excessive judgment would at the most merely be erroneous, there being no assignment of error upon the subject, we must decline to pass upon that question.

Finding no reversible error in the record, the judgment of the circuit court is affirmed.

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


author: Bird, J. Ostrander, J.

text:
    NICHOLS v. BURCHAM.
    1. Partnership — Evidence — Existence of Relation — Specific Performance.
    Evidence that two brothers owned and dealt in certain lots jointly, that one of them gave to complainant a written option on the joint property, that the brothers advertised as Burcham Brothers, and had stated that they were partners and that they in fact had some business transactions as partners, the copartnership relation not being denied by them on the hearing, held, to sustain a decree finding the existence of a partnership.
    2. Same — Real Property — Power of One Copartner — Vendor and Purchaser — Option.
    When the partnership business is to deal in real estate, one of the firm has power as agent for both to execute a contract to convey the joint realty, but it is necessary to show that they had dealings in the land and that the property included in the contract was a part of the property so dealt in.
    3. Frauds, Statute of — Receipt—Memorandum.
    A receipt for money paid on the purchase price of land is insufficient as evidence of an executory agreement to sell the land, when it fails to state the times of payment of the unpaid balance.
    Moore, Brooke, Stone, and Ostrander, JJ., dissenting.
    Appeal from Iosco; Connine, J.
    Submitted November 18, 1912.
    (Docket No. 61.)
    Decided November 3, 1913.
    Bill by Roland A. Nichols against John Burcham, Albert Burcham and Mott Hicks for the specific enforcement of a contract to convey land. From a decree for complainant, defendant Hicks appeals.
    Affirmed by an equally divided court.

      Edwin Bawden, for complainant.

      Albert W. Black and L. G. Da Foe, for defendant Hicks.
   Bird, J.

The complainant began this proceeding to have a land contract made with defendants Burcham specifically enforced, and to enjoin proceedings at law. The chancellor who heard the case made a decree agreeable to the prayer of the bill, and defendant Hicks has appealed. The land in question consists of 83 acres bordering on Long Lake in Iosco county. The real contest is between the complainant Nichols and defendant Hicks. It appears that both of these parties were nonresidents of the State, and that they began to bargain for the land at about the same time. The title to the land was held by defendants John and Albert Burcham as cotenants. John was living on the premises and Albert was in Illinois. On May 8, 1909, John Burcham gave complainant a written option in the name of Burcham Bros., to purchase the same for $1,000; a payment of $10 being made thereon. This option was duly recorded with the register of deeds for the county of Iosco on the 18th day of May, 1909. On the 19th day of May a land contract was executed by John Burcham in the name of Burcham Bros., agreeing to sell the land to complainant for $1,000, $250 to be paid down and the balance to be paid on or before the 8th day of November, 1909. The down payment was made by the complainant and the land contract recorded in the office of the register of deeds on the 21st day of May, 1909. On or before the day fixed in the contract for the final payment, the complainant made an effort to pay the balance due on the contract, but was unable to do so on account of the absence of the Burchams. The complainant took possession of the premises under his contract, and later a suit in ejectment was commenced against him by Hicks, to recover possession of the same. Complainant then filed this bill to enforce his contract, and also to enjoin the prosecution of the ejectment suit.

Defendant Hicks’ side of the controversy is that on the 3d day of May, five days before the option was given to complainant, John Burcham gave him a written option of purchase of the same premises, with certain lumber thereon for $943, on which he paid him $10. On May 22d John executed a deed of his interest in the premises to him, and on June 14th Albert did likewise, and Albert received one-half of the consideration on June 1st and John received his share on June 14th. It is the claim of the complainant that the defendants Burcham were copartners dealing in lands, and that the execution of the option by John Burcham in the name of the partnership was valid, and that the defendant not only had actual notice that he had made a contract for the purchase price of the land, but that he had constructive notice because of the fact that both the option and the land contract were on file in the register of deeds’' office for several days before he made any substantial payment upon the land. The defendant Hicks denies that the Burchams were copartners, and that if they were, the land was not copartnership property, and he denies that he had any actual notice before he purchased that complainant was negotiating for the land. For the purpose of establishing a copartnership between John and Albert Burcham, proof was made that the land was conveyed to them as cotenants, and that they either had it surveyed into lots, or contemplated doing so, and that they established an office on the premises for the sale of them. Upon this office building a sign was placed reading as follows: “Burcham Bros. General and Outing Lots for Sale.”

The proofs also showed admissions by each one of the partners that he was in partnership with his brother in the ownership and sale of these lots. It also appeared that they had entered into some business transactions as partners. The testimony tending to establish the partnership was not disputed by the proofs. No light was thrown on the questions by either one of the Burchams, as neither defended nor did either appear at the hearing. The testimony fairly leads to the conclusion that John and Albert were copartners as to this land.

The more serious question is, however., whether, having established the fact of copartnership, the sale of the land made by John in the firm name was a valid sale as to his brother Albert. To show that John and Albert were partners would not establish the validity of the option as to Albert, unless it was further shown that the .copartnership was dealing in lands, and that the lands in question were part of them. Rovelsky v. Brown & Smith, 92 Ala. 522 (9 South. 182, 25 Am. St. Rep. 83); Ludlow v. Cooper, 4 Ohio St. 1; Frost v. Wolf, 77 Tex. 455 (14 S. W. 440, 19 Am. St. Rep. 761); Moderwell v. Mullison, 21 Pa. 257; Chester v. Dickerson, 54 N. Y. 1. (13 Am. Rep. 550); Thompson v. Bowman, 6 Wall. (U. S.) 316; Batty v. Adams County Com’rs, 16 Neb. 44 (20 N. W. 15); Robinson v. Crowder, 4 McCord (S. C,), 519 (17 Am. Dec. 762); 1 Bates on Partnership, §§ 298, 299; 17 Am. & Eng. Enc. Law (1st Ed.), p. 960. See, also, Moran v. Palmer, 13 Mich. 367.

In Rovelsky v. Brown, supra, wherein the facts were very similar to the case under consideration, the rule is stated as follows:

“ ‘When the partnership business is to deal in real estate, one partner has ample power, as general agent of the firm, to enter into an executory contract for the sale of real estate.’ Chester v. Dickerson, 54 N. Y. 1 (13 Am. Rep. 550). ‘When real estate is brought into the partnership business, it is treated, in equity, as personal estate, and a lease of it by one partner is as much a partnership transaction as a sale of partnership goods by him would be.’ Moderwell v. Mullison, 21 Pa. 257. When land is purchased to be dealt in as a commodity, this would seem to be, for the purposes for such dealing, an out and out conversion of it into personalty, and- each partner can bind the firm by contracts for its disposition. Ludlow v. Cooper, 4 Ohio St. 1; Olcott v. Wing, 4 McLean, 15 [Fed. Cas. No. 10,481]; Pugh v. Currie, 5 Ala. 446; Frost v. Wolf, 77 Tex. 455 [14 S. W. 440, 19 Am. St. Rep. 761]; 1 Bates on Partnership, §§ 298, 299. Our conclusion is, that partnership real estate is, in equity and for partnership purposes, to be treated as personalty; and that one member of a partnership, engaged in the business of buying and selling real estate, can bind the firm by contract in the firm name for the sale of partnership land, and that such contract .should be specially enforced against all the partners. This conclusion does not involve a disregard of the rule laid down in Lang’s Heirs v. Waring, 25 Ala. 640 [60 Am. Dec. 533] ; for the conversion into personalty is only so far as may be called for to effectuate the purposes of the partnership; and when the partnership has come to an end, and its purposes have been fully accomplished, the real estate resumes its legal characteristics.”

It is further said in the same opinion that:

“If the several partners in a firm engaged in the business of buying and selling real estate cannot bind the firm by purchases or sales of such property made in the regular course of business, then, they are incapable of exercising the essential rights and powers of general partners, and their association is not really a partnership at all, but a several agency; the acts of each member being subject to ratification or repudiation by the other members, or by their wives, or, if they should die, by their widows, heirs, or devisees. In short, we are unable to discover any satisfactory reason for denying to a court of equity the power to treat real estate as personalty in order to make binding partnership obligations in reference to the particular subject-matter of the regular dealings of the firm, when that rule sought to be invoked to this end is readily applied to enforce the payment of ordinary debts, or to secure a partnership division, which, as compared with the immediate and primary aim of carrying on the regular business of the concern, are the secondary and ultimate purposes to which the partnership property has been pledged or devoted. And authorities are not wanting to support the conclusion that the rule is not confined in its application by any such unreasonable distinction.”

Applying this rule, in the law of partnership to the proofs in the case at bar, we think it should be held that John Burcham had the authority to make the contract with complainant, and that it should be enforced against both of the partners.

The chancellor found as a fact that defendant Hicks had actual notice of complainant’s contract before he paid any substantial sum on his contract. We think this conclusion was justified by the testimony, notwithstanding it was denied by him. In addition to this, had the defendant taken the precaution to examine the records in the register of deeds’ office before he paid the purchase price for his deed, he would have been advised of the option and contract executed' by John to complainant.

The defendant Hicks makes complaint because he was denied a rehearing. It appears that he was unable at the hearing to produce the written option given to him by John Burcham on the 3d of May. Subsequently it was found and made the basis of an application for a rehearing. The application was denied by the court because of the apparent lack of good faith in failing to produce the option on the hearing. The receipt reads as follows:

“Long Lake, Iosco County, Michigan,
“May 4, 1909.
“Description of land purchased of John Burcham and Albert Burcham by Mott Hicks: Beginning thirty-two (32) rods north of the southeast corner of section five (5), thence west to Little Long Lake, then west along said lake and west side of town four (4), then north to D. & M. Ry., then to lot three (3), then east to two hundred and fifty (250) feet, then north to Big Long Lake, then east along Big Long Lake to section line of section four (4), then south to point of beginning, all lands being situated in lot thirty-eight (38) of section five (5), town twenty-three (23) north of range five (5), east, containing eighty-three (83) acres of land more or less. Received ten dollars ($10) to apply on purchase price of said land, purchase price being nine hundred dollars ($900).
[Signed] “John Burcham.”

If we were disposed to disagree with the chancellor as to defendant’s right to a rehearing, it would be without profit to the defendant, as we are persuaded that the receipt is not sufficient to meet the requirements of the statute of frauds, in that it fails to fix a time when payment should be made. Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Ebert v. Cullen, 165 Mich. 75 (130 N. W. 185, 33 L. R. A. [N. S.] 84), and cases cited.

The decree, canceling defendant Hicks’ deed, and providing for a specific performance of complainant’s contract, was a proper one, and it will be affirmed, with costs of this court to complainant.

Steere C. J., and McAlvay and Kuhn, JJ., concurred with Bird, J.

Ostrander, J.

(dissenting). I think there is no testimony warranting the conclusion that the land in question was partnership' land. Undoubtedly tenants in common of land who agree to plat it and sell it in parcels have each an interest in each parcel and in the proceeds of its sale. In common speech, they are partners in the matter; that is, are jointly interested. If the tenants in common happened to be brothers, it would be natural to advertise the property for sale, as was done in this case. The brothers carried their bank account in their joint names; that is, in the name of John and Albert Burcham. John Burcham, who executed the contract under which complainant claims, did not assume the rights of a parther in making the contract, except upon the suggestion of complainant. In view of the opinion of Mr. Justice Bird, it is proper to set out the testimony presented on the part of complainant upon the subject of a partnership in this land. He drew the original option. At the time he drew it, John Burcham had agreed, not so that his agreement could be enforced, but had given his personal promise in writing, to sell the land to defendant.

As stated, complainant drew the original option taken by himself. When it was offered in evidence, certain changes and interlineations were called to the attention of the court, as follows:

“The option notified complainant that land was owned jointly. I desire to call the court’s attention to it. The words, T, John Burcham,’ in the first line is crossed out and after the word ‘Burcham’ in the third line it says, ‘Brothers,’ which was inserted in there after original option had been made, whatever time that might be. Also that original option, as originally drafted, did not contain the words ‘Said farm belonging jointly to Burcham Brothers, partners.’ It was inserted in there after the original option was drawn, whatever time that might be. That notified complainant of the joint ownership.”

Thereupon complainant testified:

“Q. Attention has been called to certain interlineations in original option; who made those?
“A. They were made by myself before signing by either, and after I read over all the corrections; we were in a hurry and did not have time to recopy it before both signing.”

Complainant further gave testimony as follows: On direct examination:

“Q. Now, in your conversation with John Burcham, 'what, if anything, did he say ás to he and his brother .being in partnership in regard to this land?
“A. He said they were partners. * * * This conversation occurred when I first looked over the farm, and was again repeated on the cars in the presence of Mr. Crary, as to partnership and his authority to make sale. * * *
“Q. State as near as you can the conversation that you had on this 19th day of April [the day the contract was presented to John for execution].
“A. He passed the time of day. I said I had been watching for him. He was not at home when I got there. He said: 'Well, I don’t know about this; I don’t know.’ I said: T am prepared to carry out my part of the option.’ Then he said: ‘Well, my brother is not willing; I have seen my brother, and he is not willing.’ I said, ‘Well, you are a partnership, and you did the business for the firm, and I am prepared to carry out my part of the agreement for the land contract, and I shall expect you to.’ ”

On cross-examination, he testified as to what took place before the option was given:

“Q. At that time he told you that he and his brother owned this land jointly?
“A. He said they were partners.
“Q. Answer my question.
“A. Yes, sir.
“Q. At this time he told you that he and his brother owned this land jointly? Answer that, ‘Yes’ or ‘No.’
“A. I have not enough knowledge of law to know whether jointly or a partnership or both.
“Q. Did he tell you in this conversation that he and his brother owned that land jointly?
“A. I think he did. I do not recall exactly the words in which he stated it.
“Q. At that time you had not made any examination of the records?
“A. No, but before I did anything farther, I investigated the title and found that record title showed that land belonged to John Burcham and Albert Burcham. There was nothing stated in the deed showing they were copartners. I knew what the record title showed before I did anything farther.”

As to what took place at the time the land contract was executed:

“Q. In that conversation he said to you then and there that he did not know about selling this land to you? Answer that by ‘Yes’ or ‘No.’ He said to you, ‘Don’t know about selling this land.’
“A. He said, T don’t know about selling this; I don’t know what to do.’
“Q. Did he or did he not make such a statement?
“A. He said, T don’t know about this.’ Yes.
“Q. Now, I want a direct answer to my question, and don’t want you to be evasive; he told you in that conversation, T seen my brother, and he is not willing to sell the land?’
“A. Yes. We remained out by the fence until Mr. Rawden and Mr. Ballard came up with the boat.
“Q. Now, in that conversation with Mr. Burcham you told him that he did have a right to sell that land for his brother, whether he was willing or not?
A. Is that a question?
“Q. Yes.
“A. I told him that he would if they were partners ; he had the right, or the agent, to sell that land, as a partner.
“Q. To sell the land whether the brother was willing or not?
“A. To sell the land.
“Q. Didn’t you tell him whether his brother was willing or not?
“A. I don’t recall.
“Q. You don’t know whether you did or not?
“A. I told him he was the agent, and he was doing business for the partnership, and he would have the right under the option to sell the land.
“Q. Did you in that conversation tell him that he had that right, whether his brother was willing or not; answer that ‘Yes’ or ‘No.’
“A. I don’t recall exactly the words. * * *
“Q. So that you did have a knowledge that there was some unfairness or some weakness in closing up the deal before you had it closed up ?
“A. Yes.
. “Q. When did you first learn of that unfairness?
“A. By the look of Mr. Eymer’s letter head sent me by Burcham.'
“Q. Where is that letter?
“A. I have it in the files somewhere unless you (meaning Mr. Rawden), have it.
“By Mr. Rawden: I don’t think I have it. That was a letter from John Burcham. The first one reached me at Hiram within two or three days after leaving Michigan. I should say three or four days after obtaining option.
“Q. Then you received a communication from Mr. Burcham in regard to this matter, and that he could not make the deal, as there was some unfairness?
“A. He did not say that he could not make the deal, but that he did not want to make the deal, and wanted to give me my money back. The reason he gave for not wanting to make the deal was that he had seen his brother and he did not want to sell.
“Q. So that three or four days after receiving this option he notified you that he had seen his brother that owned the land jointly with him, and that he was not willing to sell?
“A. Yes.
“Q. And that brother was Albert Burcham?
“A. Yes.
“Q. And you did not see Mr. Burcham personally again until you came here at the date of Exhibit B (the contract) ?
“A. No, sir.
“Q. And he immediately told you then that he had seen his brother, and he was not willing to sell?
“A. Yes.”

After executing the contract, Burcham, or some one for him, sent to complainant, by express, i^ie $260 Jie had paid, and complainant refused to receive the package.

Complainant’s witness Crary testified:

“Q. Did. you hear at that time Mr. John Burcham say anything as to whether he and his brother were in partnership as to that land?
“A Yes
“Q. What did he say?
“A. Well, now in the first place this was prior to going down on the train.
“Q. What did Mr. John Burcham say regarding he and his brother being in partnership in those lands?
“A. He said it on his property first, and afterwards going down on the train. I think it was after we got to the depot.
“Q. Was that before the execution of this option, Exhibit A?
“A. Yes.
“Q. Did you ever hear Albert say anything about the fact of there being any partnership, or not being in partnership, in anything?
“A. Not in regard to the land. I did in regard to handling vegetábles and stuff on their property.
“Q. But you say you never heard Albert say anything in regard to the land?
“A. No, sir. * * *
“Q. Taking the conversation you had with Albert Burcham in consideration, Albert Burcham never told you at any time that he was a partner of John Burcham in the land business?
“A. No, sir. I don’t think I ever talked with Albert about it.”

Complainant’s witness Beedon, who was cashier in a local bank, testified: Direct examination:

“I had a conversation with Albert Burcham regarding this business of theirs at Long Lake and the purchase of that land up there.
“Q. Now, what, if anything, did he say to you as to the relation that he bore to his brother in regard to that land? * * *
“A. They were partners all the time in their land deals, and generally split the profits, always in all of their deals that they had around town there; they figured around a good deal in farms and lots, and they always split the profits, and Albert — he is a little more simple than the other fellow — he asked me if I thought it was a good deal that they traded their farm for that property at Long Lake. I wasn’t much acquainted with the country at that time; I told him I didn’t know much about it.
“Q. What I want is what Albert said to you in regard to how he and his brother had gotten into that deal at Long Lake, and if they were partners. * * *
“A. He told me that they were going to trade for this land and make it into a summer resort, and they were going to plat it and sell the lots and each take the profits on what they could sell it for.
“Q. Did he make any statement to you as to whether he and John were partners in the business? * * *
“A. Yes, he did.
“Q. What did he say about that?
“A. Well, he said that they were — that he was trying to get it — when he started they would buy and sell these lots and each take their share. * * *
“Q. What, if anything, did John say as to how he and Albert were in that venture up there?
“A. He said they were going to be partners in the venture. I think he said this after they had gone into it. After they moved up to Long Lake, what little banking they did, they continued to do it in our bank.-
“Q, Now, can you give us, as near as you recall it, the conversations or statements that Albert made to you when you say that he stated they were partners in the business?
“A. He made the statement* to me that they were going to try and sell these lots and make some money and pay for the rest of the place. It seems to me there must have been a little something back of it. I never asked them, but they wanted too big a price for the lots, or else they would not sell them.
“Q. What, if anything, did he say as to the division of the profits?
“A. Just as much as John — just the same.”

Cross-examination:

“I knew Albert Burcham about three years. He was real often in our bank. The conversation I have just related took place after the purchase of the Long Lake property. I can’t tell the exact time. It took place in the bank. Don’t remember of any one else being present but myself and Albert Burcham. The way he come to tell me, we got talking about the property. John Burcham was not there at that time.
“Q. Now, give us the words, as near as you can as to what Albert Burcham said, not your language, but his.
“A. He said they were going to live up there and move up there and build a shanty.
“Q. Did he say ‘They’ or ‘We?’
“A. He said ‘We,’ I think. ‘We are going to move up there and have this land surveyed and make lots and sell the lots for outing ground purposes/
“Q. Now, then, you know as to whether they owned the land at that time?
“A. They had it bought at that time.
“Q. Do you know whether or not they surveyed it or had it platted into lots at that time?
“A. I think not.
“Q. Do you know as to whether they ever had it surveyed into lots?
“A. I think it is.
“Q. Of your own knowledge?
“A. I think they did.
“Q. Do you know of your own knowledge?
“A. I could not swear to it.
“Q. Is that the only conversation you ever had with Albert regarding that land?
“A. I think it is.
“Q. What you have told me just now is all that Albert Burcham said to you at that time regarding that transaction ?
“A. No; I would not say that he didn’t, because I have probably forgotten something — that is, a part of' it. I have known John Burcham about the same length of time, and he did business with our bank. They had at times a little money deposited in bank.
“Q. When did you have -a conversation with John regarding the matter?
“A. Before they bought it and after they bought it.
“Q. What did he say in that conversation — his words as near as you can remember?
“A. He came there and asked me if I thought it would be a good deal; that is, if I thought they could make any money, and I told him I could not judge about it because I was not acquainted with that part of the country.
“Q. Then what did he say?
“A. I think he said that he was going to take it up anyway.
“Q. Then what else did he say?
“A. That is all that I can remember of him saying.
“Q. That is the first conversation; now the second conversation.' When did you have that?
“A. It was after he had made a deal for the land; I can’t tell how long after he bought the .land the second conversation occurred. I believe the second conversation occurred at the bank.
“Q. Using John’s language, what did he say?
“A. He said they had purchased that land up there, and they were going to have it surveyed and platted into lots.
“Q. He did not tell you at that time that he had had the survey made and the land put into lots?
“A. No; he did not.
“Q. All the conversation with John was in regard to something that was to be done in the future?
“A. Yes, sir.
“Q. What else did he say, if anything?
“A. I could not think of anything more that he said up there.
“Q. Does that contain then, all the statements made by John Bureham to you at that conversation, as near as you can remember them?
“A. Yes, sir; it does.
“Q. And this second conversation, I take it, was the last conversation that you had with John Bureham concerning the matter?
“A. I think it was.
“Q. That was all the conversation?
“A. Yes, sir.
“Q. Then you did not talk with him -or with Albert after any arrangement had been made by them to sell these lots, if such arrangements were made?
“A. No. * * *
“Q. Did John and Albert Bureham have an account in your bank?
“A. They had at different times a little money on deposit. The account was in the name of John and Albert Bureham. There was no account in bank placed by either of. the Burchams in the name of Bureham Bros.”

Complainant’s witness Ballard: Direct examination : •

“I know John and Albert Bureham. I knew them for about two years before I moved to Long Lake. They did some business in my store. They purchased goods from me and also small fence posts and saw logs, after they came to Ellake. (Ellake and Long Lake are-different names for the same place.)
“Q. During the time that they came into the store, did you have any conversation with either of these men, either John or Albert, as to the relation they bore to each other in that piece of land, or in the business that they were engaged in up there? * * *
“A. Only so far as when they were making a purchase or fetching in material that I bought of them, and it would not be paid for at that time, they would wait until either of them came in to pay it up, or occasionally when I bought anything of them I would deduct it until they got ready to settle up. That was the only time that I had any conversation with them in regard to their partnership business or anything of that sort. * * *
“Q. Now, what statement did Albert Burcham make to you at any time regarding the relation that he bore to his brother in that land that they had down there at Long Lake?
“A. The statement that he made to me was the first time that I had anything much of a talk. I asked him the first time, I said, ‘You are Albert Burcham,’ and he said, ‘Yes, but don’t put it down that way; put it down to Burcham Bros, as John and I are partners.’ * * *
“Q. Now, when he brought logs or fence posts down there (referring to Albert), did he at any time make statements when he brought any such forest products, regarding any relations that he bore to his brother and this land? * * *
“A. I could not say that Albert personally did. I don’t think that Albert himself fetched me any timber at any time. When there was anything of that sort John generally attended to the timber end of it.”

On cross-examination:

“Albert Burcham never told me anything about any relations which existed between him and John, except when he came and got goods in the store and stated to me that he got it for Burcham Bros, in that they were partners. They were living together at that time. I let them have some things out of the grocery store, such as groceries and clothing, that would be likely to be used by both parties; also tools and saws. * * * At no time was there a general discussion entered into by me with these parties as to their exact relation, so far as this piece of property is concerned; in other words, we did not enter into private affairs, and I did not ask them about where they stood in regard to this piece of property, except as is stated in conversation above referred to, and these conversations took place at the c-store with Albert Burcham. Albert Burcham never afterwards talked with me about any partnership existing between him and John as regards this piece of land. John talked to me about the partnership business in the property along that same winter; I think it was in the winter of 1908. He was in the store three or four times a week.
“Q. What did he say?
“A. When I seen him, in particular that I remember, he was there with a load of logs, and he wanted me to go down and scale them, and I took the scale sheet down there and he stood and looked over my shoulder as I wrote the scale down on the sheet, and I wrote ‘John Burcham,’ and he corrected me and he said the logs — that is, partnership — it • is ‘Burcham Bros.,’ in that way.
“Q. That entire matter referred to the timber that had been cut by the two boys, the two Burcham boys, and necessarily would be a partnership matter?
“A. Yes.
“Q. That did not refer to the matter of the land in any way, did it?
“A. That didn’t as I know of, any more than that the logs came off the land.
“Q. What other time did you talk with him regarding the matter?
“A. It was common conversation in regard to their business. I could not tell you the dates. The next time that directed my attention that John Burcham said anything to me about the partnership relation to this land was when I made a trade with John for a lot he had in Hale, and he was trading some stuff at the store, and he bought a whole lot of stuff, and I made a trade with him, and he said, T will fetch up Albert and see if he is satisfied/ so him and Albert came up that night, 'and he closed the deal.
“Q. He did not tell you then that he was trading you that lot down there, or sign ‘Burcham Bros., by John Burcham,’ and Albert not come near it?
“A. No, sir. He did not tell me that. Albert came up to look the situation over with John.”

Complainant’s witness Hadwin, as to what occurred when the contract was executed:

“The conversation that I heard between Mr. Nichols and Mr. Burcham about this contract was that Mr. Nichols said that he came there to make that payment on the property, and Burcham said: ‘Well, I don’t know about that; my brother is not here.” Mr. Nichols said: ‘Well, you aré agent for your brother in this business’ — and he said: ‘Yes, sir.’ ‘Well,’ he said, ‘You can sign it yourself. You are acting as his agent.’ ”

This is, I think, all the testimony of witnesses upon the subject of the partnership. In addition, it appears that upon the land were signs advertising the fact that outing lots were for sale by Burcham Bros., and upon a building of one room, upon the land was a paper sign bearing the words, “Burcham Bros. General and Outing Lots for Sale.” I conclude there was no proof of a partnership agreement of the Burchams with respect to the land; none that it was purchased by them with partnership funds; none that Albert Burcham ever held his brother John out as his partner with respect to the lands, or that either, except in the particular matter, ever assumed to deal with the lands as partnership property. It is clear, I think, that John Burcham never supposed that he was in fact the partner of his brother, entitled, by virtue of their agreement, to make contracts with respect to the sale of the land. The suggestion came from complainant, who assumed, upon the facts disclosed to him, to advise him that he had the right to make the option, and later advised him that he had the right to make the contract. The land was not sold in parcels, but as an entirety. Complainant was notified when he had but $10 invested that John Burcham wished to withdraw the option. On the other hand, the defendant Hicks, apparently in good faith, accepted from John Burcham, on May 4, 1909, four days before complainant received' his option a memorandum, set out in my Brother Bird’s opinion. Pursuant thereto there was executed a deed of the land by both John and Albert Burcham. The deed is dated May 15, 1909, but was actually acknowledged, by Albert, in Illinois, May 22, 1909, and by John, in Michigan, June 14, 1909. Defendant Hicks paid the purchase price, and personally took possession of the land. He was evicted in June, -1909, by an agent of complainant, who had not then paid the balance of the purchase money on his contract, and has never paid it, and to whom the money he had paid was before then attempted to be returned. Complainant is entitled to no particular sympathy or equitable consideration. He determined for himself that the land was partnership land, and that John could bind the partnership by his agreement. He stood, and stands, upon a strict legal right. He must establish the fact that the land was partnership property or must fail. My own reasons for concluding that he has.not done so sufficiently appear. I think it will be a distinct departure in the law if it is held that the evidence is sufficient to prove a partnership agreement with respect to this land between John and Albert Burcham, or that the land was purchased with partnership funds, or that Albert Burcham or John Burcham ever held himself or his brother out as such a partner.

The decree should be reversed, and one should be entered granting the relief prayed for in the cross-bill, with costs of both courts to defendant Hicks.

Moore, Brooke, and Stone, JJ., concurred with Ostrander, J.


author: Ostrander, J.

text:
    NYE v. FONGER.
    Cancellation of Instruments — Life Estate — Deeds—Contracts —Consideration.
    Although the finding of the circuit court in chancery that the defendants obtained a valid title to complainants’ farm by a deed conveying the land subject to a life estate in complainants and in consideration of their support upon the premises, is affirmed, the decree should be modified so as to permit complainants, at their election, to waive the right to support on the premises, retaining the use thereof as life tenants.
    Appeal from Genesee; Wisner, J.
    Submitted October 9, 1913.
    (Docket No. 11.)
    Decided November 3, 1913.
    Bill by Norton B. Nye and Sarah C. Nye against Marshall J. Fonger and Mary T. Fonger for cancellation of a deed. From a decree for defendants, complainants appeal.
    Modified and affirmed.

      Thompson & Temple (D. S. Fraekelton, of counsel), for complainants.

      Roy E. Brownell, for defendants.
   Ostrander, J.

Defendant Mary T. Fonger is the niece of complainant Sarah C. Nye. To the Fongers the Nyes made a deed of certain premises in May, 1910, reserving to themselves a life estate. The deed was taken by Mrs. Fonger, and was recorded in April, 1911. Complainants, seeking to set aside and cancel the deed, charge that no consideration was received by them for the conveyance; that it was obtained by fraud; that undue influence was exerted by defendants in procuring it; that neither of the grantors understood the legal effect and consequence of their action, and that the deed was made with the distinct mutual understanding and agreement that it should not be recorded during the life of the grantors; and that they might, if they desired to do so, mortgage the premises conveyed to obtain money for their use. The defendants deny that fraud was practiced or undue influence exerted by them, deny that the grantors (complainants) did not fully comprehend the nature and effect of the deed, say that it was executed by the grantors voluntarily, in payment for past kindness and care, and in payment for future care, kindness, and attention which they are ready and willing to afford. They offer, if complainants will return to the premises in question, which defendants occupied ■ when the deed was made and still occupy, to furnish complainants with a good home, proper care and attention and maintenance in a manner suitable to their station in life. The bill of complaint was filed June 23, 1911. Upon the hearing a decree was entered, dismissing the bill, with a finding that as a part consideration for the execution and delivery of the deed it was agreed by the parties thereto—

“That said complainants should be furnished by said defendants a comfortable support so long as said complainants and each of them should live, and at their death that said defendants should afford them and each of them a decent burial; that such support should be in accordance with their circumstances and station in life, and such as the complainants have heretofore been accustomed to, and that such support should be furnished at the farm hereinbefore described and in the home of defendants thereon.”

Pursuant to this finding the decree provides that defendants shall so maintain complainants, etc., and give to complainants a lien upon the premises as security for performance of the decree. At the hearing the court stated that performance of the parol contract of the parties could be decreed only because defendants had in open court admitted and agreed to perform their undertaking, and the solicitor for complainants suggested to the court that it would be better if the amount defendants should pay was fixed by the court.

There are various minor propositions and issues of fact raised by the pleadings, but a recital of them and an analysis of the testimony would profit no one. Upon the main issue we are satisfied with the conclusion of the court below. That is to say, we think it is not made out that the deed was unfairly procured, or that it was not intelligently executed and delivered. But the deed reserves a life estate to complainants, and in their bill they do not assert the parol contract and agreement with defendants found by the court, and to which the decree gives effect. Enforcement of this provision of the decree involves the possession by defendants of the premises in question, which it is needless to say is apparently inconsistent with a life use thereof by complainants. Complainants, without expressly waiving any benefit which performance of the decree may afford them, complain that it creates contractual relations, and forces complainants to accept them. We are satisfied that the parol agreement was made, and that it was contemplated that in performing it on their part defendants should possess the premises. It is an agreement involving in a large degree the personal comfort of complainants, and the death of either of defendants would, or might, make complete performance impossible, while a change in their mental attitude towards complainants would, or might, take away the very consideration for making such an agreement. Assuming that the provision for a life estate was merely a safety device intended to secure complainants in any event a home and the fruits of the farm, it is evident, we think, that complainants should not be refused the right, at their election, to possess the land, and that, if they so desire, the decree ought to be modified accordingly. They may, within 30 days after the handing down of this opinion, upon notice to defendants, take a decree in this court affirming the decree of the court below, with the modification that at their election they may possess, use, and enjoy the premises as life tenants, in which case the agreement for their maintenance and support by defendants shall be held to be waived, and no costs of this appeal will be awarded to either party. Otherwise a decree will, be entered affirming the decree below, with costs to appellees.

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


text:
    GRIFFIN v. GRIFFIN.
    Divorce — Condonation — Adultery — Husband and Wife — Insanity.
    It is a fair inference, from the fact that complainant waited five years before filing a bill for divorce on tbe ground of adultery, during which time the wife became insane, that he had condoned the offense so as to bar equitable relief, the question whether defendant was irresponsible when she committed the offense being also in doubt.
    Appeal from Muskegon; Sullivan, J.
    Submitted October 10, 1913.
    (Docket No. 21.)
    Decided November 3, 1913.
    Bill by Frank B. Griffin against Gertrude F. Griffin for divorce. Ida Evans was appointed guardian ad

      litem. From a decree for complainant, defendant appeals.
    Reversed.

      Edward McNamara, for complainant.

      Sutherland, Johnson & Sessions, for defendant.
   Ostrander, J.

It is charged in the bill that defendant committed adultery in the city of Cadillac, Mich., February 28, 1907, and before and after that time. It is further charged that defendant was committed to the Northern Asylum for the Insane as an insane patient April 9, 1909, and discharged therefrom October 11, 1911; that “at the time when said defendant committed adultery as related in paragraph 6 of this bill, she was in her right mind and sane.” It is charged that two children, offspring of the marriage, born, respectively, in June, 1903, and in November, 1904, are living, and that there was born to defendant about November 30, 1907, a child, of whom complainant says he has always believed he was not the father, although he is unable to say whether he is or is not the father. It is charged that the parties lived and cohabited together until on or about February 20, 1907. The bill was filed February 2, 1912. We infer that a guardian ad litem was duly appointed for defendant; this because the record discloses that she answered the bill by her guardian and no question is raised as to her authority.

The answer sets up, among others, the following facts: Defendant was returned to the Asylum on or about March 5, 1912; her release therefrom in October, 1911, being temporary. Upon information and belief, the charges of adultery are denied, with the statement that if the act expressly charged was committed, defendant was irresponsible, and if it was committed, it was condoned and forgiven by complainant, who has since lived with her as his wife with knowledge of the fact. The cause was heard in open court, and a decree was entered dissolving the marriage. Custody of the two older children was given to the’father and mother of defendant, with certain restrictions and conditions, and complainant is ordered to pay $4 weekly for their support, maintenance, and education. The third child is not mentioned in the decree. The guardian ad litem, has appealed.

There was some competent testimony introduced tending to prove that defendant is guilty of the offense with which she is charged; that, at least, she corresponded, sexually, with a man not her husband. If she was responsible for her conduct, the offense is fairly proven. As to her responsibility the testimony leaves us in doubt, and in much greater doubt about complainant’s subsequent conduct. This doubt is so considerable that after admitting the advantage afforded to the lower court by seeing and hearing the witnesses, we are not satisfied that a cause for divorce has been made out. Complainant waited almost five years before seeking relief. It is a fair inference that he did in fact condone, or excuse, the conduct which he now brings forward as a ground for divorce. The children are directly, and the public is generally, concerned with the matter. The defendant is, apparently, unable to defend herself.

However unfortunate complainant’s position may be, we are constrained, after careful reflection, to reverse the decree of the court below and dismiss the bill. Complainant will be required to pay to the guardian ad litem, a solicitor’s fee of $25 and pay the cost of printing the record and briefs.

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