author: Blair, J.

text:
    LOVE v. DETROIT, JACKSON & CHICAGO RAILROAD CO.
    1. Negligence — Survival oe Actions — Estates op Decedents — Executors and Administrators — Contributory Negligence — Parent and Child.
    In an action for negligent injury and resulting death of an infant under six years of age, under the provisions of the survival act (3 Comp. Laws, § 10117), brought by the father as administrator, the alleged contributory negligence of the mother does not bar recovery in behalf of the infant’s estate, though the parents would have been sole distributees.
    2. Same — Actions—Statutes—Death.
    The statute applies to causes of action as well as to actions, and the right under it is property right which, having vested in the injured person, becomes an asset of the estate to be distributed after death of the injured person, as provided by the statutes of distribution.
    3. Same — Damages.
    The same damages are recoverable as if decedent could in person prosecute his action.
    4. Same — Infants—Contributory Negligence.
    Nor was plaintiff’s intestate of sufficient age to be chargeable with contributory negligence.
    5. Same — Imputing Negligence.
    The negligence of one parent is not imputable to the other.--
    6. Evidence — Expectancy—Infants—Mortality Tables.
    The subject of inquiry being the probable length of life of an infant under six years of age, it was competent to show the age to which his grandparents and other ancestors attained.
    7. Same — Damages—Earning Capacity.
    Testimony tending to show the earnings of the child’s father, wages of laborers, or carpenters, was competent.

      8. Same.
    The fact that the ohild’s death occurred before he became a wage earner does not prevent an inquiry into the probable value of his services during his expectancy.
    9. Same.
    A wide latitude must be allowed in the admission of testimony as to the child's status and future prospects, earnings, and other elements of damages.
    10. Same — Insurance—Expert Evidence.
    The opinion of an insurance expert that the child’s expectancy was 53 years was properly received.
    11. Negligence — Trial—Requests to Charge.
    Failure to give requests proffered by defendant’s attorneys was not error, where the requested instructions assumed that plaintiff could not recover, although he might establish negligence in other particulars charged in plaintiff’s declaration.
    32. Same — Street Railways — Fenders.
    The Supreme Court will take judicial notice that electric railways operating their cars on public streets are accustomed to equip them with fenders or similar protective devices.
    13. Same.
    Neglect to maintain such fenders was actionable negligence.
    14. Same — Instructions to Jury.
    The court did not err in advising the jury that defendant operated heavy, rapidly moving cars, propelled by electricity, dangerous to persons and property in the streets, and must use commensurate care; the jury not being given to understand thereby that the particular oar which struck decedent was moving rapidly.
    15. Same — Excessive Damages — New Trial.
    A verdict of 82,000 for pain and suffering, and 82,500 for pecuniary loss was not so excessive as to require the reversal of the judgment.
    16. Same — Appeal and Error — Motions. •
    Failure of the trial court to assign reasons for refusing a new trial does not present a reviewable point on error.
    Error to Washtenaw; Kinne, J.
    Submitted November 23, 1911.
    (Docket No. 171.)
    Decided May 3, 1912.
    Case by Clyde Elton Love, administrator of the estate of Frank Emerick Love, deceased, against the Detroit, Jackson & Chicago Railroad Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. J. Cavanaugh and George J. Burke, for appellant.

      T. A. Bogle and H. L. Wilgus, for appellee.
   Blair, J.

This action was brought in the circuit court for the county of Washtenaw by Clyde Elton Love, as administrator of the estate of Frank Emerick Love, deceased, for the alleged negligent killing of said deceased by defendant railroad company. Deceased, at the time of his death, was five years and five months of age. The administrator, plaintiff in this suit, and his wife are the father and mother, respectively, of said deceased, and his sole and only heirs at law and distributees. Deceased came to his death on the 14th day of May, 1909, while riding on a tricycle in an attempt to cross the tracks of the city line, so called, of the said defendant railroad company, in the city of Ann Arbor, at the intersection of Monroe and Twelfth streets. The accident occurred at 4 o’clock on the afternoon of said day, or shortly thereafter. The deceased was taken to the Homeopathic hospital in the city of Ann Arhor, where he remained alive until about midnight of the same day, or about eight hours after the accident. The deceased had been in company with his mother on a visit. The mother allowed or permitted the boy to go toward and across the railroad tracks, with the location of which she was entirely familiar, and where cars passed every few minutes, and to precede her by two blocks or more, and was on the opposite side of the street car track from him at the time of the accident. The negligence claimed by the plaintiff as a basis for the cause of action was:

(a) That the car was running at an excessive rate of speed contrary to the ordinance j (6) neglect to provide proper safeguards in the way of a fender; (c) inexperienced and incapable servants.

This action was based on the survival act (section 10117, 3 Comp. Laws). The jury, after the charge of the court, brought in a verdict in favor of the plaintiff for “the sum of $2,000 for the suffering of Frank Emerick Love from 4 o’clock p. m. until 12 o’clock, and $2,500 for his expectancy in life for 37 years, being a total of $4,500.”

Briefly, it is the claim of the defendant in this cause that the verdict in said cause should be reversed because:

(1) The court should have directed a verdict for the defendant in accordance with the motion to direct a verdict; (2) the court erred in admitting testimony as appears by assignments of error 1, 2, 3, 4, 5, 6, 7, and 8; (3) because the court erred in refusing to give defendant’s request to charge, assignments of error 10 to 18, inclusive; (4) because the court erred in his charge to the jury as set forth in assignments of error 19 to 28, inclusive; (5) because the court erred in refusing to grant defendant’s motion for a new trial; (6) because the court failed to assign any reasons for his refusal to grant a new trial.

The motion for a directed verdict presented the question whether, where, as in this case, the parents are the only heirs at law and distributees of the child’s estate and as such entitled to the whole amount recovered, the contributory negligence of the mother would bar recovery by the father as administrator. The circuit judge held that it would not, and we have now to consider the correctness of his determination.

The decisions of this court have established that :

The survival act (section 10117, 3 Comp. Laws) applies to rights or causes of action as well as to actions. Rogers v. Windoes, 48 Mich. 628 (12 N. W. 882); Racho v. City of Detroit, 90 Mich. 92 (51 N. W. 360); Roberts v. City of Detroit, 102 Mich. 64 (60 N. W. 450, 27 L. R. A. 572); Sweetland v. Railway Co., 117 Mich. 829 (75 N. W. 1066, 43 L. R. A. 568).

A right of action is as much property as is a corporeal possession, and, under the survival act, vests at once in the injured person upon the inflicting of the negligent injury, and, upon his subsequent death, becomes an asset of his estate to be collected and distributed in accordance with the administration statutes. Berger v. Jacobs, 21 Mich. 215; Power v. Harlow, 57 Mich. 107, 111 (23 N. W. 606); In re Joslyn’s Estate, 117 Mich. 442 (75 N. W. 930); Carbary v. Railway, 157 Mich. 683 (122 N. W. 367); Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434, 104 Am. St. Rep. 607, 3 Am. & Eng. Ann. Cas. 53).

“A right of action for personal injuries not resulting in the death of the injured person, survives after his death [3 Comp. Laws, § 10117], and a suit for his damages, begun by him, may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. Neither the death act, so called (3 Comp. Laws, § 10427), nor Act No. 89, Pub. Acts 1905, affect such a right of action or have any application to the manner in which it shall be pursued.” Rouse v. Railways Co., 164 Mich. 475 (129 N. W. 719).

An administrator bringing the action in the first instance, as in the present case, is entitled to recover the same damages that the deceased could have recovered had he lived to bring the suit to a successful issue. Olivier v. Railway Co., 138 Mich. 242 (101 N. W. 530).

A child of the tender years of plaintiff’s intestate cannot be charged with contributory negligence, and the negligence of his parents cannot affect his recovery. Shippy v. Village of Au Sable, 85 Mich. 280 (48 N. W. 584); Boehm v. City of Detroit, 141 Mich. 277 (104 N. W. 626); Johnson v. City of Bay City, 164 Mich. 251 (129 N. W. 29).

“A right of action is as much property as is a corporeal possession and, in the case of a minor, is protected by the law in the same way and under the same securities. The mother could not release it even for full consideration and by the most formal instrument; much less, therefore, could she, by mere word of mouth when not under oath, or otherwise chargeable with responsibility, destroy his right of action by her admissions.” Power v. Harlow, 57 Mich. 107, 111 (23 N. W. 606).

It appears to us to be a logical and necessary inference from the above principles that the contributory negligence of the mother, if proved, which we are far from holding in this case, would not affect the right to recover. Warren v. Railway, 70 N. H. 352 (47 Atl. 735); Wymore v. Mahaska County, 78 Iowa, 396 (43 N. W. 264, 6 L. R. A. 545, 16 Am. St. Rep. 449); Bradshaw v. Frazier, 113 Iowa, 579 (85 N. W. 752, 55 L. R. A. 258, 86 Am. St. Rep. 394); Westerfield v. Levis Bros., 43 La. Ann. 63 (9 South. 52); Norfolk, etc., R. Co. v. Groseclose’s Adm’r, 88 Va. 267 (13 S. E. 454, 29 Am. St. Rep. 718); Wilmot v. McPadden, 78 Conn. 276 (61 Atl. 1069); Southern R. Co. v. Shipp, 169 Ala. 327 (53 South. 150); Ploof v. Traction Co., 70 Vt. 509 (41 Atl. 1017, 43 L. R. A. 108); Nashville Lumber Co. v. Busbee (Ark.), 139 S. W. 301.

The case of Feldman v. Railway, 162 Mich. 486 (127 N. W. 687), was under the death act, so called (sections 10427, 10428, 3 Comp. Laws), where—

“The jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.”

It was held that negligence of the parents would bar their recovery. That case is clearly distinguishable from the present case, in that there the declaration must aver and the proofs establish a pecuniary injury or loss to the persons specified in the statute, constituting a separate and distinct cause of action from that counted on in the instant case. Hurst v. Railway, 84 Mich. 539 (48 N. W. 44); Ploof v. Traction Co., supra; Tucker v. Draper, 62 Neb. 66 (86 N. W. 917, 54 L. R. A. 321).

It is further to be observed that the plaintiff was guilty of no negligence whatever contributing to the accident, and, in our opinion, the negligence of one parent is not imputable to the other and therefore furnishes no bar to-his recovery. Atlanta, etc., R. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145); Macdonald v. O’Reilly, 45 Or. 589 (78 Pac. 753); Donk Bros. Coal & Coke Co. v. Leavitt, 109 Ill. App. 385; Wolf v. Railway Co., 55 Ohio St. 517 (45 N. E. 708, 36 L. R. A. 812); Cleveland, etc., R. Co. v. Workman, 66 Ohio St. 509 (64 N. E. 582, 90 Am. St. Rep. 602); Consolidated Traction Co. v. Hone, 59 N. J. Law, 275 (35 Atl. 899); Lewin v. Railroad Co., 52 App. Div. (N. Y.) 69 (65 N. Y. Supp. 49).

Assignments 1 and 2 are not based upon exceptions. Assignments 3 and 8 are based upon exceptions to rulings of the court permitting an answer to the following question by the father: State whether or not your grandparents are living, and in permitting the mother to testify as to the age of her father and other ancestors. Such testimony was competent. Sterling v. Union Carbide Co., 142 Mich. 284 (105 N. W. 755).

The fourth, fifth, sixth, and seventh are grouped and considered together in appellant’s brief. The fourth assigns error in permitting the father to testify to the amount of his salary. The fifth, upon denial of appellant’s motion to "strike out the testimony of plaintiff as to his salary and his financial ability and prospects of financial ability to educate his child. The sixth, upon permitting testimony as to the wages of common laborers. The seventh, upon permitting testimony as to the wages of carpenters.

From the nature of the case, the amount of the damages cannot be estimated with certainty either as to the element of pain and suffering or the element of future earnings after the age of 21; but this does not, as we have repeatedly held, deprive the injured person of all damages. Hart v. Village of New Haven, 130 Mich. 181 (89 N. W. 677), and cases cited.

The measure of damages is well settled in cases for negligent injuries under the survival act. Olivier v. Railway Co., 138 Mich. 242 (101 N. W. 530); Davis v. Railroad Co., 147 Mich. 479 (111 N. W. 76); Rouse v. Railways Co., 164 Mich. 475 (129 N. W. 719). The fact that the child’s death has occurred before he has become a wage-earner does not foreclose inquiry as to the probable value of his services for the years ensuing his death. Black v. Railroad Co., 146 Mich. 568 (109 N. W. 1052); Braasch v. Stove Co., 153 Mich. 652 (118 N. W. 366, 20 L. R. A. [N. S.] 500).

To enable the jury to determine the probable earning capacity of the child for the period of his probable life after arriving at the age of 21, a wide latitude must necessarily be allowed in the admission of testimony as to the child’s status and future prospects and the vocations and their remuneration which might reasonably be expected to be open to him. We are therefore of the opinion that the rulings complained of were not erroneous. Snyder v. Railway Co., 131 Mich. 418 (91 N. W. 643); Jeffries v. Railroad Co., 129 N. C. 236 (39 S. E. 836); Walters v. Railway Co., 41 Iowa, 71; Fishburn v. Railway Co., 127 Iowa, 483 (103 N. W. 481).

Counsel for appellant also argue in their brief that the court erred in admitting the testimony of an insurance expert as to the child’s expectancy of life. We are unable to find any assignment of error presenting this point. We are all of the opinion, however, that such testimony was competent. Walters v. Railway Co., supra.

Counsel argue in their brief that—

“The fourth, fifth, sixth, and seventh requests to charge were entirely reasonable. These requests contained a fair statement of defendant’s theory of the case, and the court’s refusal to submit them to the jury was prejudicial to the rights of the defendant.”

The motorman testified that, when about 125 feet from the west crosswalk on Twelfth street, he got a signal to stop on the east side of the street; that at the same time he saw the child come out on Twelfth street and afterwards stop about 15 feet from the track; that as soon as he got the signal he shut off the current, applied the brakes, and began to slow down; that when he got within about 60 feet of the west crosswalk, seeing the child stop, he turned on the power again to carry him across Twelfth street for his signaled stop, running at about four miles an hour; that when he got within 15 feet of the crosswalk the child suddenly started across, and thereupon he did everything in his power to stop the car, but it was then impossible to do so. The four requests referred to were based upon this testimony and were not given unless, as claimed by plaintiff, they were covered by the following portion of the charge :

• “If you find from the evidence that the motorman in charge of defendant’s car saw the plaintiff’s intestate in time to have avoided the accident by reversing the power, and did not do so, and that by reason thereof the accident occurred, this constituted negligence, and your verdict must be for the plaintiff. Unless you find from the evidence that the child stopped when he saw the car approaching, and that the motorman in the exercise of due care and prudence under all the circumstances of the case had good reason to believe, and did believe, that the child did not intend to cross the track until after the car had passed, if you find from the evidence that the motorman was justified in believing that the child did not intend to cross the track, and that the car was not running at more than eight miles an hour, and the motorman when he saw that the child did intend to cross the track reversed the car and did all in his power to avert the accident, then the defendant would not be liable in this case, unless you find from the evidence that the defendant was guilty of other acts of negligence which caused. the accident. If you find from the evidence that this accident was unavoidable and not due to any fault or negligence on the part of the defendant, then the verdict should be for the defendant. ”

We think the portion of the charge sufficiently stated defendant’s theory of the case, provided such statement was not nullified by the qualification “unless you find from the evidence that the defendant was guilty of other acts of negligence which caused the accident.” This question we consider under the next head.

We consider, in connection with the question last above referred to, the assignment of error upon the following portion of the charge:

“It is the duty of the defendant in equipping its cars to provide reasonable and proper safeguards in general use in order to prevent or minimize injury, in case of accident. In this connection, you may consider the effect of the absence of a fender upon the car which did the damage, upon the duty of the motorman to use more care in controlling the car without such device.”

Among other duties of defendant averred in the declaration is the following:

“ * * * And it became and was the duty of said defendant so to equip its said cars with fenders on the front end thereof that in the event of striking any such child upon said crossing said child would be picked up by and would fall upon any such fender, and thus avoid the serious injury of any such child, or would thereby have been warded off and away from said track without serious injury.”

The testimony discloses that there was no fender on the car at the time of the accident. This court will take judicial notice of the fact that it is the custom of electric railway companies operating their cars in the public streets to equip them with fenders or some similar device, and that their object is the protection of the public engaged in. ordinary business or travel upon the streets, whence arises a duty on the part of defendant as averred in the declaration and charged by the court. Spiking v. Power Co., 33 Utah, 313 (93 Pac. 838); Noe v. Railway Co., 133 Mich. 152 (94 N. W. 743); Ensley v. Railway, 134 Mich. 195 (96 N. W. 34); Mayer v. Railway, 142 Mich. 459 (105 N. W. 888); Mayer v. Railway, 152 Mich. 276 (116 N. W. 429). The defendant’s requests covered by this portion of the charge required a verdict regardless of its negligence in failing to equip the car with a fender, although the jury might have found, accepting the motorman’s testimony as true, that at the slow rate of speed testified to by him the presence of a fender would have prevented or very much lessened the injuries. We find no error in this part of the charge.

Error is also assigned upon the following portion of the charge:

“At the time the accident occurred, the defendant was operating heavy, rapidly moving cars propelled by electricity, dangerous to persons and property in the streets where men, women, and children were and had a right to be, and capable of causing serious injury and death, unless properly controlled. It was therefore the duty of defendant to exercise in the control and management of its cars at this time and place a degree of care commensurate with the peril involved.”

We do not think this portion of the charge is subject to the criticism made'by counsel for defendant, that it gave the jury to understand that in the opinion of the court the particular car which struck the child was at that time running rapidly.

Our examination of the record has fully satisfied us that the objection that the verdict is against the weight of the evidence is without foundation. Neither do we think that we would be justified in holding that the verdict was excessive as to the amount allowed for pain and suffering. The family physician testified:

“ The right leg was virtually severed above the knee, the left leg was badly bruised, and the pelvic and hips on both sides were badly bruised. I found a young medical student had placed a tourniquet upon the limb above the point of the injury close to the body to control the hemorrhage. * * * I had known this boy ever since he was born. He was a vigorous, healthy boy, and had been during his whole life. The boy recognized me before I did him in his dirty mangled condition. In connection with his crying out in pain, he said to me, ‘ Dr. Kinyon, can’t you do something for me ? ’ That was the first I knew anybody knew me. He was groaning and complaining of pain. Crying out with pain.”

The father testified:

“ My boy died at four minutes before midnight on May 14, 1909, and his age was five years and five months.
“Q. State whether or not you were present at the time he died.
“A. I was.
“Q. State how long before he died you had been with him, immediately before.
“A. Since about half past 4.
”Q.. State whether or not he suffered during that period of time.
‘‘A. He did.
“Q. State what indication of suffering he gave.
“A. He moaned and cried out. A little later, after he had returned from the operating room, he put his hand down towards his leg, and cried out very strongly: ‘ Let go! Let go!” And continued doing that for some time.
“Q. State whether or not you had any conversation with him or anything of that sort.
“A. Yes; I asked him if he knew us, and perhaps two or three or four other questions, and he answered them by nodding his head.
“Q. State whether or not he was conscious after the operation and before his death.
“A. If I understand exactly what constitutes consciousness, he certainly was.”

Whether a verdict is excessive or not in a case like this presents a question of fact and not of law. There is no definite standard for measuring in dollars and cents the extent of pain and suffering and mental anguish, and although the statute casts upon this court the duty of reviewing the estimate of the jury, we are not inclined to substitute our estimate for that of the jury except in cases where the damages are so clearly excessive as to justify the conclusion that they were the result of partiality or prejudice. Johnson v. City of Bay City, 164 Mich. 251 (129 N. W. 29).

The point presents no question for review. Grand Rapids Board of Education v. Brown, 159 Mich. 148 (123 N. W. 562).

The judgment is affirmed.

Steere, McAlvay, Brooke, and Bird, JJ., concurred.

       Continued from Vol. 169.


source: Caselaw Access Project

author:
      Ostrander, C. J.
      Bird, J. Ostrander, J. Bird, J.

license: Public Domain

text:
    FELLOWS v. STEVENS.
    1. Master and Servant — Personal Injuries — Fellow-Servant — Foreman — Scope op Authority.
    In the absence of a showing that defendant’s foreman had authority to borrow and use tools not furnished by the master, plaintiff could not recover for injuries sustained while installing certain apparatus in a factory building owned by third parties from whom the foreman borrowed a defective ladder that broke and caused plaintiff’s injuries.

    2. Same — Inspection—Ladders.
    Where plaintiff examined the ladder and saw no defects, and its condition was not discoverable upon an ordinary examination, plaintiff, who knew that the employer did not furnish, and had not inspected, the ladder, and who was as competent to inspect the ladder as his master, assumed the risk of its . use, and could not recover for an alleged breach of the master’s duty to inspect.
    8. Same — Negligence.
    Plaintiff’s foreman was his fellow-servant in the matter of furnishing the borrowed instrumentality.
    Bird, J., dissenting.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted October 26, 1911.
    (Docket No. 111.)
    Decided November 3, 1911.
    Rehearing granted November 13, 1911.
    Former opinion affirmed May 3, 1912.
    Case by Clarence A. Fellows against Frank E. Stevens and Julius A. Ziesse, copartners under the name of the Phoenix Heating & Sprinkling Company, for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed, and no new trial granted.
    Hyde, Earle & Thornton and Charles A. Watt, for appellants.

      William J. Landman, for appellee.

       On question of vice-prinoipalship as determined with reference to character of act causing injury, see note in 54 L. R. A. 37.

   Ostrander, C. J.

Defendants engaged to install in. the manufacturing plant of another an automatic sprinkler system. They sent materials and tools and other instrumentalities for carrying on the work. Among them were stepladders, seven or eight in number, which were selected by them, and transferred to the place where the work was to be carried on. Plaintiff is a pipe fitter, and was one of five men sent by defendants to do the work. One of these men, Barnard, was foreman. The plaintiff offered testimony tending to prove: That during the progress of the work he was told by Barnard to use in his work a ladder belonging to the owners of the plant, and not to the defendants. It was not a stepladder, but a straight ladder. That he questioned the propriety of using the ladder, instead of a stepladder, and was told that it was better and safer than a stepladder because it had spuds in its feet which would prevent its slipping on the floor. Plaintiff knew that the ladder had not been furnished by defendants, and that it belonged to the owner of the premises. The work began July 21st. It was on August 1st that plaintiff began to use the straight ladder. In the afternoon of the 3d (August 2d was Sunday), while plaintiff was at work upon a pipe about two feet below the ceiling and near to a revolving shaft, a part of the machinery in the building, he mounted the ladder up to the fifth step. Stepping down to the fourth step from the bottom, the right side of the step broke, and he was thrown against the revolving shaft, his clothing was wound on the shaft, and he was badly injured. The testimony for the defendants tended to prove that plaintiff was not ordered by the foreman to take the ladder at all, but took it on his own account; that the- ladder was not broken at all before he fell on the shaft; that, if found broken afterwards, the break was due either to a blow it received when plaintiff’s body was whirled about the shaft, or to the weight of two men who stood on the ladder in an effort to release him. It is the contention of the plaintiff that defendants are responsible for his injury because their foreman, Barnard, furnished a defective ladder which broke.

Upon the subject of defendants’ responsibility for the conduct of the foreman, the court instructed the jury as follows:

“You must find by a preponderance of the evidence that Barnard furnished the ladder to the plaintiff and directed him to use it, and informed him, instructed him, it was safe and proper to use, and in that connection you must find that Barnard had the authority, and find that by evidence, to take that ladder not owned by the defendants, pick it up there in the shop, if he had found it at the side of the street or anywhere else, that he had general authority to stand in the place of the defendants and give the plaintiff that ladder to use. Of course, if Mr. Ziesse or Mr. Stevens had picked that up and used it there and directed him to use it, then this question would not arise, because they had authority to conduct their own business in such a way as they see fit; but, in order to justify or to hold them liable for some one acting in their place, the party must be acting within the scope of his authority, and if a foreman or any other employé goes entirely outside of his authority, and without any instructions or authority and does something that he has no authority to do, then you can’t hold the defendants or his employer liable for that act. So that you must find that Barnard was such foreman or person in authority that he had the right to not only use the ladder as it was furnished there, but to discard it if he saw fit and go and borrow ladders, pick up this ladder or anything that he might find about there, and that, as I say, must be furnished and found by you by the evidence in this case. You will remember the evidence. There is a good deal of contradiction in regard to his authority and direct evidence that he had no such authority, and there is evidence also on the part of the plaintiff as to what his general duties were there, from which you are asked to draw that he had full authority to do all these things; and that is one of the vital questions in the case, gentlemen, that this ladder, having been furnished by not the defendants themselves, if it is expected to recover against them, then he must have such authority as to stand in their place and bind them; otherwise, he was just a fellow-workman in a way, although he may have been a foreman and yet be a fellow-workman. He fixed it up on his own judgment, and would not bind the defendants.” -

During the giving of the charge the following occurred:

“Mr. Hyde: Just a minute, your honor. I may have misunderstood your honor, but I did understand that your honor said there was a conflict of evidence as to Mr. Barnard’s authority. I don’t understand that there is any conflict.
“The Court: Well, possibly I did use that word, and, if I did use it, I used it inadvertently. There is no conflict perhaps. I don’t attempt to explain the evidence, but I won’t use the word ‘conflict’in the meaning that one witness disputes another, but there is testimony from which the two parties claim different deductions may be made. The defendants and Mr. Barnard and several witnesses, as I recollect it, deny absolutely the authority to use or that this ladder was used by Mr. Barnard. On the other hand, while there is no direct statement that that is not so, yet the plaintiff has attempted to show that Barnard was a foreman and had employed or attempted to line up men to help work, and from some such testimony as that you are asked to draw the inference that he had general authority, and you must take that inference that you are asked to draw from the testimony of the plaintiff, and compare it with the testimony of the defendants and Barnard’s and the other testimony that there was no such authority, and then find what is the fact. I didn’t mean to say that one contradicted the other.
“Mr. Landman: If your honor please, may they take into consideration the fact what Barnard did ?
“The Court: What?
“Mr. Landman: May they take into consideration the fact what Barnard did ?
“The Court: Oh, surely.
“Mr. Watt: I don’t understand that that would mean what he did in this particular case of furnishing the ladder. That wouldn’t be proof that he had any authority. It must be more than that.
“The Court: Circumstances that—
“Mr. Hyde: (interrupting): That wouldn’t prove that because it was a fact this ladder was furnished by Barnard, that, therefore, Mr. Barnard had authority. You can’t prove it that way.
“The Court: No.
“Mr. Hyde: You have got to show some other way besides his doing it.
“The Court: It has got to be shown by testimony and what he did.”

In denying the defendants’ motion for a new trial, the court said:

“While I had grave doubts at the trial, and still have, as to whether the case ought to have been submitted to the jury and the plaintiff be allowed to recover any judgment, yet I have not been able to satisfy myself of that fact to such a degree of certainty that I feel like setting aside the judgment.”

It is assigned as error that the court submitted to the jury the question of Barnard’s authority in the premises. I find no testimony in the record tending to prove that Barnard had any authority, general or special, to borrow and use tools in the place of those furnished by the defendants, his masters. This being so, the applicable principle of law is stated in 1 Labatt on Master and Servant, § 168, as follows:

“ There is clearly no ground upon which an employer can be held liable where the servant was injured while using, for the purposes of his work, some material substance which happened to be in a convenient position, but which was not the property of the employer, and which was not used by his authority.”

It also appears conclusively that the ladder in question was in daily use upon the premises by employés of the owner thereof, and that, if it was defective, a fact which is disputed, the defect was not obvious and not discoverable by ordinary examination and inspection. It is averred in the declaration that the ladder had no such apparent defects as to induce plaintiff, a man of ordinary intelligence, to deem the same unsafe for the use to which it was put. Plaintiff testified:

“I glanced at the steps to see that there was nothing broken. I looked at the steps when I got up. * * * There was no defect in any round that I could discover at a glance. I could have discovered a defect if I had inspected it, by hitting it with a hammer or something, pulling on it hard. I would have had to have taken off the round itself in order to see the condition of the nail holes, and, in order to tell whether the standard was punky, I would have had to have taken off the rounds.”

Assuming, for the purposes of argument only, that a ladder is a tool, or instrumentality, which the master, if he furnishes it, is bound to inspect, it is apparent that the defect, if there was one, could not have been discovered by ordinary inspection. But plaintiff knew that his employer did not furnish the ladder, had not inspected or had opportunity to inspect it. He had no reason to think that the foreman had examined it otherwise than in the manner which plaintiff himself adopted. There is no testimony tending to prove that the foreman was an inspector for the employer. Plaintiff is relying upon the breach of a duty by his master which his master, to his knowledge, had not performed, had no opportunity to perform, which no one had undertaken to perform for him, which plaintiff was as competent to discharge as was the master and which he had opportunity to discharge — a duty arising out of an act of his own of which the master was ignorant.

I feel obliged to announce conclusions opposed to those stated by Mr. Justice Bird, and to hold upon this record that with respect to the use of the ladder no negligence of the defendants is made out, that the foreman and plaintiff were fellow-servants, and the plaintiff assumed the risk of using the borrowed ladder. I do not, however, assent to the doctrine that defendants were bound to inspect the ladders which they furnished

The judgment should be reversed, and no new trial granted.

McAlvay and Stone, JJ., concurred with Ostrander, C. J. Moore, J., concurred in the result reached by Ostrander, O, J.

Bird, J.

(dissenting). Plaintiff sued defendants to recover for injuries which he received while in their employ, and which resulted in a loss of his left arm. He recovered a judgment in the trial court, and the case is now here on review at the instance of the defendants.

In 1908 the defendants were engaged in the business of selling and installing automatic sprinkler systems, and it was in August of that year, while they were installing one for Philip Fritz, in his manufacturing plant in the city of Grand Rapids, that plaintiff was injured. The working force consisted of five men, Harry Barnard, the foreman, and four others, one of whom was plaintiff. The defendants , furnished the tools used for doing the work. On the afternoon of the day preceding the injury, while the plaintiff was using one of the stepladders furnished by the defendants, the foreman, Mr. Barnard, came and took it away, and gave plaintiff, instead, a straight ladder about 12 feet long, which he had borrowed from Mr. Fritz. The plaintiff made some objections to using it, but was assured by the foreman that it would serve his purpose as well, and that it was safer and better, as there were spuds in the bottom which would prevent its slipping. On the following day the plaintiff placed the ladder against one of the joists in the ceiling of the room, and mounted it to make a pipe connection near the ceiling. On returning, and when on the fourth rung from the bottom, it broke near the right-hand standard, throwing plaintiff forward upon a revolving shaft, which engaged his clothing, and he was wound up and injured so. that amputation of his arm became necessary.

The negligence complained of was the failure of the defendants to furnish the plaintiff with a reasonably safe ladder with which to perform his work. The defendants resisted the claim of plaintiff upon the grounds, first, that the declaration was fatally defective because it failed to set out a cause of action; second, that they were not negligent; third, that the foreman, Harry Barnard, was a fellow-servant of the plaintiff, and that they were not liable for his acts in directing him to use the borrowed ladder; fourth, that the plaintiff was guilty of contributory negligence.

The defendants made numerous objections on the trial to the sufficiency of the declaration, and contended that it failed to set out a cause of action. We cannot agree with them in this contention. The declaration alleged the relation of master and servant; that it was the duty of the defendants to furnish the plaintiff with a safe ladder with which to perform his work; that the defendants failed and neglected to do so, and, in consequence thereof, the plaintiff was injured, without fault upon his part. With these essential allegations, we think the declaration sets out a cause of action with sufficient certainty, in the absence of a demurrer. It is quite likely that many of the objections made by counsel, if raised by demurrer, would have been sustained, but instead they chose to plead the general issue, and go to trial, reserving their objections for the trial. Under this practice, if the declaration sets out a cause of action, the objections will be overruled. Rowland v. Kalamazoo County Sup’ts of Poor, 49 Mich, 553 (14 N. W. 494); Sutton v. Van Akin, 51 Mich. 463 (16 N. W. 814); Whoram v. Township of Argentine, 112 Mich. 20 (70 N. W. 341).

Were the defendants negligent? Nothing is better settled in the law relating to personal injuries than the rule that a master is in duty bound to furnish his servant with reasonably safe tools and appliances with which to perform his work, that this duty cannot be delegated to another so as to relieve the master of personal responsibility. Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N W. 572); Brown v. Gilchrist, 80 Mich. 56 (45 N W. 82, 20 Am. St. Rep. 496); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426). In the case before us the master furnished the tools with which to install the system. Ladders were an important part of the tools necessary to do the work. It was therefore incumbent upon the defendants to furnish plaintiff with one that was reasonably safe for the purpose for which it was to be used. The plaintiff’s testimony showed that there were no obvious defects in the ladder, and that at the end of the broken rung and the place where it had been nailed to the standard the wood was dozy. This testimony, together with the fact that it broke under plaintiff’s weight, made it a question of fact for the jury to say whether the ladder was reasonably safe.

The defendants insist that such a ladder belongs to that class of tools usually denominated small tools, which the servant is bound to inspect for himself. Whether it falls within that class is not of very much importance in this case. If the ladder did belong to that class, then it was the duty of the defendants to make a reasonable inspection of it before they placed it in the hands of the plaintiff. The rule has been laid down by this court that small tools, which are not of the servant’s selection, must, in the first instance, be inspected by the master to see that they are reasonably safe and fit for the use intended. Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 80 Am. St. Rep. 561). In any event, whether it be numbered among the tools which it was the duty of the master to inspect and keep in repair, or whether it be numbered among the small tools, it was the duty of the defendants to make a reasonable inspection of the ladder before putting it in usé, to determine whether it was reasonably safe and fit for the use which was to be made of it.

But it is said by the defendants that they furnished a sufficient number of ladders with which to do the work, and that the foreman had. no authority to borrow a ladder from Mr. Fritz, and that in doing so he acted outside of his authority, and as to such act he was a fellow-servant of the plaintiff. The testimony shows that Mr. Barnard was placed in charge of the work and of the men, and that he directed how the work should be done, and directed the men where to work and what tools to use. In directing the plaintiff to use the ladder in question, the jury found that the foreman was acting within his authority. The plaintiff was not required to know whether the ladder belonged to defendant or to some one else, inasmuch as he did not have the right of selection. De Maries v. Jameson, 98 Minn. 453 (108 N. W. 830); San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320 (42 S. W. 1009). The foreman, in the course of his duty, had the authority to direct the plaintiff to use this ladder, and it was the duty of the plaintiff to obey this direction, unless there was some obvious defect in it. Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205. But it is urged that the foreman took part in the work and labored with his men, and by reason thereof he was a fellow-servant of the men. We agree with counsel that this is generally true as to acts which it is not the duty of the master to perform, but, as to acts which it is the duty of the master to perform, the foreman represents the master, and is not a fellow-servant of the men. Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (61 N. W. 658, 27 L. R. A. 266); Schroeder v. Railroad Co., 103 Mich. 213 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354). The duty to furnish plaintiff a reasonably safe ladder was the master’s duty. Therefore, when Mr. Barnard, as foreman, failed to discharge that duty, his neglect was the master’s neglect.

Was plaintiff guilty of contributory negligence?' The conduct of the plaintiff and the inferences which were drawn from his conduct were in conflict. Under such circumstances, the contributory negligence of the plaintiff became a question of fact, to be determined by the jury, and the trial court was right in submitting it to them. The questions involving the negligence of the defendant, the contributory negligence of the plaintiff, the extent of the authority of the foreman, whether reasonable inspection of the ladder was made, and whether it would have disclosed the defect if it had been made, were all questions left to the jury as questions of fact by the trial court. We see no error in so submitting them. They were all submitted to the jury under very full and careful instructions by the trial court, and we think there was such testimony as justified the verdict of the jury upon all of them. We have examined the other assignments of error, and find nothing in them that calls for a reversal of the case.

The judgment of the trial court should be affirmed.

ON REHEARING.

Hyde, JEarle & Thornton, for appellants.

William J. Landman (William K. Clute, of counsel), for appellee.

Ostrander, J.

This cause was heard at the October, 1910, term by five of the justices. Two opinions were prepared, one of them by the late Mr. Justice Hooker, who died July 10, 1911, before the cause was decided. By stipulation of counsel, Mr. Justice McAlvay took the place of Justice Hooker, and two opinions were delivered November 3, 1911, four of the justices being for reversal and one for affirmance of the judgment. Under the statute, appellee applied for a rehearing by the full bench, and the cause has been reargued. A sufficient statement of the facts will be found in former opinions. Upon a reexamination of the questions presented, I find no occasion for changing what appears in the majority opinion heretofore delivered. It is perhaps proper, in view of the arguments made at the last hearing, to add something to that opinion. It was said that the statement therein that “I find no testimony in the record tending to prove that Barnard [the foreman] had any authority, general or special, to borrow and use tools in the place of those furnished by the defendants, his masters,” is contradicted by the record. In this connection the testimony pointed out is that of defendant Ziesse, who on direct examination testified that the foreman, Barnard, “had no direct or implied authority to borrow a ladder from the Fritz companythat defendants’ equipment included a half dozen eight-foot stepladders, besides the ones employed at the Fritz factory, not in use; that the foreman, Barnard, had no authority to select tools or pipe or to procure tools other than furnished by defendants. On cross-examination he testified:

“ I have sawed off the bottom of stepladders to make them shorter, as a workman, and I want my men to do that if they have got to have a stepladder to use. If necessary, a man would have authority to make a twelve-foot ladder into an eight-foot one. Harry Barnard would have authority to do that. He had authority to repair a ladder. He might hunt up a ladder for a workman. I have used ladders as a workman, other than my own at times. There would be no object in sawing off a twelve-foot ladder if there were plenty of eight-foot ladders. They could use those at the shop, and Barnard would have authority to get those at the shop. Without any word from Harry Barnard, Fellows would have no authority to go to the shop for an eight-foot ladder.”

Upon direct examination he testified:

“When I said Barnard could have given a man a ladder, I meant by notifying us we would have sent some there. I did not mean Barnard could make him use a particular ladder. He could have said, ‘ There is some ladders. Get one of them. There is ladders and there is ladders at the shop.’ When I said Barnard had authority to authorize the men to use ladders, I meant the ladders that were furnished.”

It is not now apparent to me that this testimony contradicts the statement referred to. It seems to me the case is a simple one. The defendants furnished the men with ladders. The testimony most favorable to plaintiff shows that, desiring to himself use the ladder that plaintiff was using, the foreman took it and directed plaintiff to use another which both knew was the property of the owner of the premises, for which reason plaintiff then objected to using it. The foreman forgot, or neglected, to get or order another ladder from the defendants’ shop or warehouse. The ladder broke while plaintiff was using it. That the relations of the foreman and the plaintiff were those of fellow-servants, appears to me to be clear. Argersinger v. Power Co., 164 Mich. 282 (129 N. W. 889); and see cases cited in the opinions. Undoubtedly the master owes the duty of furnishing proper tools and materials, but he is not bound to see to it at his peril that an employé and his fellow-servant make proper selections, or that they do not without authority procure tools from others.

The judgment is reversed, with no new trial.

McAlvay, Brooke, Blair, and Stone, JJ., concurred with Ostrander, J. Moore, C. J., and Steers, J., concurred in the result.

Bird, J.

(dissenting). The reargument of this case has strengthened my opinion that the ladder in question should be classed among the small tools, and that the defendants were negligent in failing to inspect it before ordering plaintiff to use it. Noble v. Steamship Co., 127 Mich. 103 (86 N. W. 520, 54 L. R. A. 456, 89 Am. St. Rep. 461), In that case it was held that a soft hammer was within that class. Just why a soft hammer is within that class, and a short ladder is not, is not quite apparent to me. In other words, the master is liable if he fails to inspect a hammer, but is under no obligation to inspect a short ladder. The difference in the nature of the tools does not, in my judgment, justify the distinction. It is insisted that the foreman had no authority to use ladders other than those furnished by defendants. This would probably be true if there had been any other ladders furnished and on the job fit for use. In Higgins v. Williams, 114 Cal. 176 (45 Pac. 1041), the foreman in charge of the work used a defective machine on which plaintiff was hurt, and the same claim was made as here "that defendants never saw the machine or knew of its being used until after the accident, and never authorized its use, and that plaintiff had as good an opportunity to see that the key was out of place as defendants if present.” In disposing of this contention, the court said it is immaterial whether defendants owned or knew of its use before the accident, and the use of it by Wilson, the foreman, was the defendants’ use, and his knowledge of its defects was their knowledge.

I think the case should be affirmed.


author: Steers, J.

text:
    SECURITY TRUST CO. v. GLAZIER.
    1. Contracts — Compromise and Settlement — Stipulation.
    Construing, in the light of surrounding circumstances and of the interpretation of one of the solicitors for complainant, a stipulation in bankruptcy proceedings whereby the trustee in bankruptcy agreed not to attaok certain assignments of insurance made by the bankrupt to his wife, in consideration of the bankrupt’s withdrawing opposition to the proceedings, • “unless any of said transactions are voidable under the bankruptcy act,” such clause is held not to have included policies held by said wife by assignments dated prior to the filing of the petition in bankruptcy, claimed by the trustee to have been fraudulently dated back.
    2. Equity — Pleading—Defense.
    A defense appearing from complainant’s bill and from the proofs offered by him need not be specially pleaded. >

    Appeal from Washtenaw; Kinne, J.
    Submitted November 24, 1911.
    (Docket No. 87.)
    Decided May 3, 1912.
    Bills by the Security Trust Company, trustee of the estate of Frank P. Glazier, bankrupt, against Henrietta M. Glazier and others to set aside certain assignments of insurance policies as fraudulent. From a decree for defendants, complainant appeals.
    Affirmed.
    Keena, Lightner & Oxvoby and Bernard B. Selling, for appellant.

      Arthur Brown (Orla B. Taylor, of counsel), for appellees.
   Steers, J.

The Security Trust Company of Detroit, as trustee of the estate of Frank P. Glazier, a bankrupt, filed in the circuit court of Washtenaw county two contemporaneous bills of complaint in the above-entitled suits, which, by stipulation, were consolidated and heard together ; all proofs taken in one being considered as proofs taken in the other. The object of the two bills is to set aside, as fraudulent and void, the assignments by Glazier of certain insurance policies to defendants. The bill against Henrietta M. Glazier and Frank H. Sweetland attacks the assignments of two policies of insurance to said Sweetland —one a 30-year endowment policy issued by the Prudential Life Insurance Company of America for $10,000, issued on the 33d day of October, 1901, and one issued on the same date by the Home Life Insurance Company of New York for $10,000 upon the life of said Glazier. Both these assignments bear date the 34th day of December, 1906. The bill against Emily J. Glazier asks for an accounting to inquire into the bonafides of various transactions and agreements between the said Glazier and defendant, who is his mother. These transactions include an agreement by him to pay said defendant $100 per month during the term of her natural life, in return for the transfer to him of all the real and personal estate (except some household effects and interest in the homestead) left her by her husband, who died in 1901. To secure this he gave his personal note for $40,000; also, another note for $1,000, for $1,000 claimed to have been cash received by her on the death of her husband from life insurance and loaned to him; also, another note for $600 cash loaned him at another time; also, a note for $4,500 for certain personal property not included in the contract, and which she turned over to him. She also claims to have loaned him cash at different times aggregating $800 for which she has no written evidence. These obligations, according to the claim of defendant, total $46,900. Defendant claims that, as security for this sum, said Frank P. Glazier assigned to her on September 6, 1904, a policy of insurance on his life in the New York Life Insurance Company for $5,000, and a year later, as additional security, assigned and turned over to her seven other insurance policies of various companies aggregating a nominal face value of $61,472. Under this bill the validity of the assignments of four of said policies is in dispute. In the two cases, therefore, it is sought to defeat the assignment of six separate policies of insurance. The Prudential Insurance Company policy of $10,000, assigned to defendant Sweetland, carried an annual premium of $531.30 and was payable to the insured, if living, on October 22,1921, but, in case of his prior death, to his wife, Henrietta M. Glazier, should she survive him, otherwise, to his estate. The policy for $10,000 in the Home Life Insurance Company, assigned to said Sweet-land, carried an annual premium of $525, payable in the same manner. At the time said Glazier became a bankrupt, the Prudential policy had a cash loan value of $1,850 and a surrender value of $1,950, and the Home Life Insurance Company policy had a loan value of $2,070 and a cash surrender value of $1,740; but to secure a loan on the latter policy the premium for the succeeding insurance year must be paid. Both these policies provided that the insured, without regard to the beneficiaries, could borrow from the companies on these policies the amounts above stated. Both policies provided that the insured could, at any time while they were in force, by written notice to the companies, at their home offices, change the beneficiary or beneficiaries, which change would take effect upon the indorsement of the same upon the policy by the company.

The four policies, the assignments of which are attacked in the suit against Emily J. Glazier, are as follows:

(1) A 20-year endowment policy in the New York Life Insurance Company, issued November 24,1899, for $5,000, carrying an annual premium of $288.70, payable, in case of the death of the insured prior to the expiration of the endowment period, to his wife, Henrietta M. Glazier, should she survive him, otherwise, to his estate. This policy also contained the same provisions for change of beneficiary found in the policies already described, and also the right of the insured to make a loan on the policy without regard to the beneficiary. At the time said Glazier was adjudicated a bankrupt, it had a loan value of $1,800.

(2) A 20-payment life policy in the Mutual Life Insurance Company of New York, dated March 29, 1893, for $5,000, requiring an annual premium of $159 and payable to the estate of said Frank P. Glazier. In November, 1907, said last-named Glazier made request to the company, which stamped upon said policy that it be payable to the defendant Emily J. Glazier if she survive him, otherwise, to his personal representatives, with the proviso that he could again at any time change the beneficiary as he chose.

(3) A policy of $50,000 issued by the Mutual Life Insurance Company of New York, dated September 6,1901, payable to the estate of the insured. At the time said Glazier was adjudicated a bankrupt, this policy had been in force six years, and six annual premiums of $1,583.50 had been paid. It had a loan value of $5,250 at the time of the filing of the petition in bankruptcy. It also contained a provision for change of beneficiary at any time. While in New York, on November 7, 1907, said Glazier filed request- with the company that this policy be made payable to his wife, Henrietta M. Glazier, if living, otherwise, to his estate.

(4) A $5,000 20-payment life policy in the Massachusetts Mutual Life Insurance Company, dated August 16, 1892, carrying an annual premium of $152.10 payable to the estate of said Glazier. Upon this policy 16 annual premiums had been paid. On September 10,1908, it was made a paid-up policy by payment of $359.93. It contained a provision for cash surrender on its sixteenth year of $1,699, or paid-up insurance of $3,871.10.

It is the claim of c'omplainant that the contested assignments of the six policies are fraudulent and void as against creditors, for the reason that they are antedated, having been made at the same time, on the same typewriter, after said Frank P. Glazier had become insolvent, “and probably after January 10,1908.” This was denied, and a direct issue of fact was presented. A large amount of conflicting testimony was introduced. The learned circuit judge decided this issue in favor of defendants and dismissed complainant’s bills.

It was and is, also, strenuously contended in behalf of the defense that complainant cannot now question the right of the defendants to the insurance policies involved, in view of a certain stipulation entered into on June 30, 1908, in connection with the bankruptcy proceedings of Frank P. Glazier.

An involuntary petition to have said Glazier declared a bankrupt was filed in the bankruptcy court December 19, 1907. He resisted the petition and filed an answer, by which the matter became tied up, and was delayed until a stipulation was entered into under which opposition was withdrawn. After this, matters progressed more rapidly, and on July 2, 1908, he was duly declared a bankrupt. On November 23, 1908, the referee in bankruptcy made an order confirming this stipulation, and directing the receiver to carry it into effect forthwith; also, citing that—

“Said Security Trust Company, having by its counsel' announced in open court that the examination of witnesses regarding the insurance policies referred to in paragraph 2d therein has not yet been completed, and that it cannot as yet make recommendation as to what is the legal status of said policies, it is therefore further ordered that the testimony upon that matter be closed on or before the 8th day of December, 1908.”

This stipulation manifestly resulted from overtures and negotiations, more or less protracted, made and entered into for the purpose of relieving complications which portended litigation and delay. The stipulation stated, by way of inducement, that it was made “ in order that as much as possible may be realized to the creditors of said Frank P. Glazier, and that said estate may not be dissipated in litigation.” By its terms Frank P. Glazier agreed to withdraw his answer and consent to be adjudicated a bankrupt. It further provided:

“(2) The Security Trust Company, as receiver, agrees to recommend to the creditors, and the parties of the fourth part agree at a creditors’ meeting to cast their vote in favor of, the following action:
“ (a) That the land and property at Cavanaugh Lake, standing in the name of Henrietta M. Glazier, including all improvements, stock, horses, sheep, cattle, vehicles, tools and household furniture; the land and property at Cavanaugh Lake standing in the name of Harold P. Glazier, shall not be subject to any litigation on behalf of the trustee, nor shall said creditors make any claims against said, property, but the title as it now stands in the name of Henrietta M. Glazier and Harold P. Glazier shall not be disturbed.
“ (6) The house and lot in the village of Chelsea, standing in the name of Harold P. Glazier, shall not be disturbed, nor shall any action be brought by the trustee in bankruptcy on behalf of the creditors, to attack said title of Harold P. Glazier.
“ (c) The cottages in the village of Chelsea, standing in the name of Vera Glazier, also the parcel of land at Cavanaugh Lake, shall not be subject to any litigation on behalf of the trustee in bankruptcy on behalf of creditors; but said title in said Vera Glazier shall be ratified and confirmed.
(d) All life insurance policies on the life of Frank P. Glazier, in which Henrietta M. Glazier is named as beneficiary, and all policies which were assigned or held as security for loans or any other indebtedness of Frank P. Glazier, shall not be claimed by the trustee in bankruptcy as the property of Frank P. Glazier, unless any of said transactions are voidable under the bankruptcy act.”

It was further agreed that, upon there being assigned to said Frank P. Glazier, in lieu of his exemptions, a half interest in the homestead property, and upon there being released to his wife the household furniture in the homestead at the village of Chelsea and the remainder of the title of thé trustee in said homestead, and upon the quitclaim to her of one-half of this homestead, and one-half of the vacant property near the Old People’s Home, standing in the name of Frank P. Glazier, she would “ release by proper deed all her dower interest in all property within the State Michigan or within the State of Ohio, or elsewhere, in which she may have any interest, including all property in the village of Chelsea and elsewhere.” This would include all her dower interest in a large amount of real estate; her husband having been an extensive owner of valuable real estate of various kinds, in many places. In order to expedite matters, she also agreed, whenever requested, to execute full quitclaim deeds to all such property, releasing all right of dower. It seems apparent, from the nature of this document, that it was designed to settle all the various matters in conflict between the parties, to end litigation, and secure the good will and co-operation of defendants in the bankruptcy proceedings. The testimony shows that clause "d” was subsequently attached as a rider to this instrument, having been originally prepared by Andrew J. Sawyer, attorney for defendants, now deceased.

There is much testimony in regard to what passed between the parties in relation to this matter, and their understanding of its purpose. It is the testimony of the defense that, as originally prepared, it did not contain the provision unless any of said transactions are voidable under the bankruptcy act,” which was subsequently added by counsel for the trustee, under the claim that otherwise the trustee might be precluded from contesting certain insurance policies that were assigned to the bank at Stock-bridge and other parties. That there was some misgiving touching the meaning of clause “d” is manifest from a letter written July 1, 1908, from Detroit, by Mr. Oxtoby, attorney for the receiver, to Mr. Gorman, then attorney for defendants. In that letter the writer states that he incloses a duplicate copy of the original agreement with other papers, and that some question has been raised by the creditors as to the meaning of said paragraph “d,” which is quoted. The writer then states:

“ I assured the creditors that the understanding of this clause was that it affected only life insurance policies held by Henrietta M. Glazier, Emily J. Glazier, Yera Glazier and Harold P. Glazier, being the parties named in the agreement, and had no reference to any policies held by the Chelsea Savings Bank, if any, or by the Stockbridge Bank, and that they only affected policies held by members of the Glazier family.
“Kindly write me a letter, stating that this understanding of mine is also your understanding. The instrument was signed on this express representation by me, and I do not wish to call the creditors together again for the purpose of having them modify the agreement signed, and I know there is no necessity of doing this, because of our express understanding.”

In reply to this, on September 17, 1908, Mr. Gorman said:

“In regard to the understanding we had with reference to life insurance mentioned in settlement of dower rights of Mrs. Glazier in her husband’s estate, will say that your understanding of the agreement in said letter is as I understood it.”

It subsequently developed that this apparently distinct understanding of the import of said clause was distinctly a misunderstanding. Gorman told Mrs. Glazier of the letter and assured her there was no trouble about it, that the added sentence only referred to papers and policies assigned to the Stockbridge Bank, in which the family had no beneficial interest, and not to these policies assigned to members of the family, which they thereafter assumed to be free from question and treated as their own.

Co-operating with the trustee in bankruptcy, Frank P. Glazier, on July 29, 1908, furnished a complete list of policies of insurance on his life. It was found policies aggregating $100,000 had been assigned to the Stock-bridge Bank within four months prior to filing the petition in bankruptcy. These the trustee, through its counsel, pursued as voidable under the bankruptcy act, and an adjustment was reached without litigation. Following this, and a year after the stipulation was signed, on August 2, 1909, this suit was begun; it being claimed that the concluding sentence in clause “ d” left the validity of these assignments open to litigation. Apparently the question raised by the creditors, and made the subject of correspondence between counsel, was the effect of the clause in proceedings against other parties in similar matters ; such is the inference from the letter of complainant’s counsel.

The clause should be construed in the light of the stipulation, taken as a whole, and the facts and circumstances surrounding its making.

The Glazier estate was a large one, and the failure heavy and disastrous, affecting many interests, public and private. Much property, of various kinds and values, scattered in many places, was involved. It was of serious importance for the trustee to speedily ascertain and obtain control of these assets. The consent and assistance of Glazier, who was opposing it, was essential to that end. The equities in these insurance-policies and the other property conceded to the Glaziers were small matters in comparison. Whether rightfully or wrongfully, they were opposing the proceedings and making claims to various properties.

Negotiations were entered into, and a stipulation made, the manifest and declared object of which was to adjust and settle and keep out of litigation certain doubtful matters. To leave anything covered by the stipulation doubtful, unsettled, and open to litigation was not in harmony with its purpose. Under the construction of clause “ d” contended for by complainant, it settled nothing and portended further litigation — was simply a meaningless promise not to question the policies if the trustee finally decided they were valid and could not be questioned.

Construing the stipulation as an entirety, in the light of the whole history of this case, as revealed by the testimony, we think it was understood and intended by all parties as a cleaning up and final settlement of all matters in difference nominated in the writing; that the questionable conclusion of clause “d” had no further meaning than to make clear that no other similar matters should be affected by it, and, having received the benefits of said stipulation, complainant cannot now open those subjects and litigate them.

It is claimed this should have been pleaded as an affirmative defense. The stipulation was part of the proceedings before the referee in bankruptcy, which are made part of the bills of complaint. It was incumbent on complainant to show that it had a right to bring these suits, and that it was not precluded by any matter set up in its bills. The answers put complainant to its proofs, and the issue was before the court.

The decree of the circuit court is affirmed, with costs.

McAlvay, Brooke, Blair, and Ostrander, JJ., concurred.


author: Moore, O. J.

text:
    PINGREE v. PINGREE.
    1. Divorce — Alimony—Estates of Decedents — Equity.
    Equity has jurisdiction to modify a decree of divorce awarding alimony in installments after the death of the defendant husband, so as to grant a gross sum out of the estate of the deceased in lieu thereof. 3 Gomp. Laws, §§ 8638-8641.
    2. Same.

      Held, that the amount awarded was not excessive.
    Appeal from Wayne; Murfin, J.
    Submitted December 12, 1911.
    (Docket No. 111.)
    Decided May 3, 1912.
    Petition by Alice Davis Pingree in a divorce proceeding wherein petitioner was complainant against Hazen'S. Pingree, Jr., for the modification of the final decree in said cause awarding complainant alimony. From a decree for petitioner, defendant appeals.
    Affirmed.

      Orla B. Taylor and Charles F. Delbridge, for appellant.

      Geer, Williams, Martin & Butler, for appellee.
   Moore, O. J.

The following statement is taken from the written opinion of the trial court:

“On August 4, 1906, Alice Davis Pingree filed a bill for a divorce against Hazen 8. Pingree, Jr., alleging extreme cruelty. On October 10, 1906, before the Honorable Flavius L. Brooke, at'that time circuit judge, a decree was entered granting her a divorce and the custody of the minor child, Gilbert Bissell Pingree. The decree contained the following language:
“ ‘ The court, upon due consideration of the testimony introduced in open court upon the hearing and reference to making an allowance to complainant for alimony, expenses, etc., doth order, adjudge, and decree as follows: That the complainant be, and is hereby, awarded all the household furniture now in her possession. The defendant is required to pay to the complainant as permanent alimony the sum of $3,000 annually, said sum to be payable in 12 equal installments of $250 eaoh, which payments shall be made on the 1st day of each and every month in advance and shall be an allowance for the maintenance of complainant and her child, Gilbert Bissell Pingree, and in lieu of an allowance for any bills incurred by said complainant in connection with these proceedings for divorce instituted by her, and the complainant will pay such expenses except as therein later provided.’
“In the same decree, 3,500 shares of stock in the Pingree Company belonging to Hazen S. Pingree, Jr., were trusted in the hands of Prances G. Pingree and Hazel Hope Pingree, mother and sister, respectively, of the defendant, to secure the faithful performance of the terms of the decree. It will be noted that this decree does not provide how long this payment is to continue, whether during the joint lives of the parties, or whether until the minor child reaches the age of 14 or 21 years. In other words, no time is fixed when this payment shall cease. _ It seemed to be agreed between the counsel on the hearing giving rise to the present opinion that, so far as this allowance is concerned, the decree was a constant decree, and there is no proof now before the court indicating what proofs were before Judge Brooke upon which this portion of the decree was based. On the 7th day of May, 1910, Hazen S. Pingree, Jr., the defendant, departed this life at his home in the city of Detroit. Since that date no money has been paid under the terms of the decree. The great bulk of his estate consists of 7,600 shares of stock in the Pingree Company, which has always been a dividend-paying stock, although the dividends have varied at different times. On the 7th day of September, 1906, Hazen S. Pingree, Jr., made a will, by the terms of which this stock was given to his sister, Hazel Hope Pingree, to hold until his son, Gilbert Bissell Pingree, should attain the age of 30 years, the income of which was to go to said son, provided that if the son died before reaching the age of 30, the stock was to go absolutely to Hazel Hope Pingree, unless before the death of Gilbert Bissell Pingree he should marry, in which event the stock was to go to his widow or to any children that he might have had. The petitioner in this proceeding, after reviving the case in the name of the executrix (Hazen S. Pingree, Jr.’s, will in the meantime having been admitted to probate), and after making the guardian of the minor child, Gilbert Bissell Pingree, a party to the proceeding, asks that under the statute authorizing the modification of a divorce decree, that this decree be modified so that she may be awarded a sum in gross not alone for the support and maintenance of herself and her minor child, but to the end that she may thus be given a portion of the property of Hazen S. Pingree, Jr. Her petition recites, and the proofs indicate, an increased cost of living since the date of the decree; her own impaired health, which she attributes largely to her mental distress over her matrimonial difficulties, and her own inability with her limited means to keep herself and child in the station in life to which they are accustomed and entitled.”

After a hearing, the original decree was modified so that Mrs. Pingree should take as a gross allowance the sum of 2,000 shares of stock of the Pingree Company, being a portion of the 3,500 shares of stock held in trust by Hazel Pingree Depew under the agreement of August 4, A. D. 1906, and that such allowance is to be made in lieu of the allowance of $250 per month granted the petitioner under the original decree. The court further determined that petitioner should have received the sum óf $250 per month from the first day of June, A. D. 1910, to and including the 1st day of July, A. D. 1911; or, in other words, the sum of $3,250. Prom this decree Mrs. Depew has appealed.

Her contention may be summarized by brief extracts from the brief of her solicitors. We quote:

The important and controlling question in this case is: Has a circuit court, in chancery, jurisdiction to modify a decree of divorce awarding alimony, payable in installments, and fixing no time for the continuance of the payment, after and on account of the death of the husband, so as to grant a gross sum out of the deceased husband’s estate, and is this right paramount to the right of the probate court to administer the estate in accordance with the last will and testament of the deceased husband ? * * *
It seems to us that the statutory provisions of this State are simply declaratory of the common law, or rather the ecclesiastical law, upon the subject, with the exception of certain modifications, to which we shall refer later, that the purpose of the adoption of the statutory provisions was to vest our courts of chancery with these powers, in view of the fact that we do not have ecclesiastical courts, and that we shall receive great assistance in determining the meaning of the statutory language by a study of the entire subject and the decisions of other courts as to the meaning of the language used. * * * We reach the conclusion from these decisions, therefore, that the right of modification of the decree ceases at the death of the husband, but that thereafter the divorced wife can recover from the estate any sum in gross or any overdue payments upon an annuity which accrued prior to the death. We find no cases, however, and believe there are none, which will support the contention that, after the death of the husband and after the estate has gone into the hands of the probate court for administration, the divorced wife can still go into the court of chancery and obtain a modification of the decree as to her future support, or that the court of chancery can carve out a part of the estate for her benefit, or that the probate court can be bound by any such action.”

The case was ably argued orally, and it is well briefed.

Unless the authority to modify this decree is to be found in the statutes of this State, it does not exist, and the court below was wrong.

At the outset we quote from the opinion of the late Justice Hooker, in Brown v. Brown, 135 Mich. 141 (97 N. W. 396), for two reasons — First, to get the statutes applicable to the case before us, and, second, because of his statement as to what constitutes alimony:

“ The common law definition given by law writers of the term ‘ alimony ’ is perhaps not broad enough to include suit money or provision for infant children of the parties to a divorce. See 1 Bish. Mar., Div. & Sep. §§ 1385, 1386; 2 Bish. Mar., Div. & Sep. § 829 et seq.; 2 Am. & Eng. Enc. Law (2d Ed.), 92 et seq.; Taylor v. Taylor, 93 N. C. 418 (53 Am. Rep. 460). These authors state, however, that some of the statutes and decisions give a broader meaning to the term. 2 Bish. Mar., Div. & Sep. §§ 829, 835, 907, 1020, 1213; 2 Am. & Eng. Enc. Law (2d Ed.), 92; 9 Am. & Eng. Enc. Law (2d Ed.), 862, 863; Whieldon v. Whieldon, 2 Swab. & T. 388; Richmond v. Richmond, 2 N. J. Eq. 90. Our statutes bearing upon this subject are as follows:
‘ (8638) Seo. 23. Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband, and such alimony out of his estate, real and personal, to be paid to her in gross or otherwise, as it shall deem just and reasonable, having regard to the ability of the husband, and the character and situation of the parties, and all the other circumstances of the case.’
“‘(8640) Seo. 27. In all cases where alimony or allowance for the support and education of minor children shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and, in default of payment of the amount so decreed, the court may decree the sale of the property against which such lien is decreed, in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same; or the court may sequester the real and personal estate of the husband, and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof; or the court, in lieu of a money allowance, may decree such a division between the husband and wife of the real and personal estate of the husband, or of the husband and wife by joint ownership or right, as he shall deem to be equitable and just.
“ ‘ (8641) Sec. 28. After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.’
“An examination of those statutes leads us to believe that the legislature intended to provide relief of two kinds, viz.: (a) An allowance of specific property; (6) a sum to be paid to the wife by the husband for the support of the wife and such children as should be placed in her custody; and that this latter sum, which the statute contemplates is to be paid to her from his estate for her own or the children’s support, or both, is called ‘alimony’ in the statute. Several of our decisions seem to have so treated it.”

In Seibly v. Ingham Circuit Judge, 105 Mich. 584 (63 N. W. 528), a decree of divorce was rendered, hut the question of alimony was reserved. More than five years later, and after the death of the husband, it was sought to have permanent alimony decreed. It was claimed there, as here, that after the death of the husband the court had no jurisdiction to deal with the question of alimony. Justice Montgomery, speaking for the court, said:

“It is undoubtedly a general rule that the death of either party to a divorce suit pendente lite abates the suit, and it is also the general rule that a proceeding to •enforce alimony at the common law abates on the death of either party. The reason of the rule is, in the first instance, that the purpose for which the proceeding is pending, namely, the dissolution of marriage, is accomplished, and in the second instance that, common-law alimony consisting as it does of provision for the support of the wife, on a divorce a mensa et thoro, by means of an allowance to be paid by the husband, the proceeding relates to conditions which exist only during the life of the two. But under our statute (How. Stat. §§ 6245, 6247) the court may decree suitable alimony, and it may award a sum in gross, which becomes presently payable, or the court may sequester the real and personal estate, and appoint a receiver thereof, and cause the personal estate and the rents and profits of the real estate to be applied to the payment of the alimony. It is proper practice for the court to determine in the first instance the right to decree, and to reserve the question of alimony for subsequent adjudication. See Rea v. Rea, 53 Mich. 40 [18 N. W. 551]. That was attempted to be done in this case, and, if it results that the death of the husband ousts the court of jurisdiction to award permanent alimony, it follows that in every ease where a decree is entered in the form here employed there must be a period of greater or less duration during which the wife is at the risk of losing the interest in her husband’s estate, which she would have under the statute of distributions but for the divorce, and without opportunity afforded her by the court to have awarded her a proper allowance of. alimony. This result would be manifestly unjust.”

As the heirs at law and legatees under the will had not been made parties, the case was remanded to the lower court to allow them to be brought in. After a hearing in the lower court, the trial judge said he was of the opinion that the decree of divorce was obtained by deception, and he declined to give any alimony. The case was decided here nearly three years after the death of the defendant. Justice Hooker, speaking for the court, said:

‘ ‘ The question of alimony being here for review, we may consider the whole record, which satisfies us that the defendant was not free from fault in the transaction; and while the cross-examination of the complainant shows that she refused to live with him at the time of the separation, and that he thereupon went away, and they never lived together afterwards, and perhaps justifies the legal conclusion that there was not a technical desertion by the defendant, it also leads us to believe that he never provided well for his wife, but left her largely upon her own resources. The original testimony shows that she supported herself nearly all of the time, and that she had no assistance from him after the separation. We are not satisfied that her refusal to cohabit with him was entirely without cause, or justified his abandonment of or failure to provide for her. He had ample means, yet he failed to do so, and persisted in that course against the express order for temporary alimony, which he did not pay. It may be that these facts influenced Judge Peck in determining that she was entitled to a divorce, and substantial justice may have been done in granting the decree to which the defendant practically confessed that she was entitled by declining to answer, and acquiescing in the result. If she is to be believed, she worked hard for years, and supported herself, thus indirectly contributing to his income, of which he had laid up several thousand dollars at the time of the divorce. Upon the whole, we think that she should have alimony. An order will be entered fixing the amount at $2,000, the same being in full of all claims for temporary alimony and costs, and in lieu of any claim for dower; and the case will be remanded for further proceedings.” Adams v. Seibly, 115 Mich. 402 (73 N. W. 377).

In Creyts v. Creyts, 143 Mich. 375 (106 N. W. 1111, 114 Am. St. Rep. 656), an allowance of $3,500 alimony in lieu of dower had been decreed and paid. The defendant was also required to pay to the complainant a monthly allowance for the maintenance of a minor child who was given into her custody. Upon the death of the defendant, it was claimed by the pefsons interested in his estate that the deci’ee was not operative after the death of Mr. Creyts. Justice Hooker, speaking for the court, said:

“The original decree was not discharged by the death of the complainant. No one would contend that the provision for the wife would have been discharged by his death or before payment, or before it became due. And in Shafer v. Shafer, 30 Mich. 163, an appeal by the wife, after a husband’s death, was held allowable if she was dissatisfied with the decree for alimony, and in the matter of Seibly v. Ingham Circuit Judge, 105 Mich. 584 [63 N. W. 528], we held that it was a proper practice to permit the revivor of a divorce suit to permit proceedings upon the decree to adjudicate the reserved question of alimony, upon bringing in the representative. These cases necessarily imply the authority to retain jurisdiction of the property of the husband in a divorce case after the death of the husband, to see that it be applied to the support of the wife and infant children. See, also, Smith v. Waalkes, 109 Mich. 16 [66 N. W. 679]. In Miller v. Miller, 64 Me. 484, a case in which a similar order to that in this case was made, it was held that such order was not discharged by the death of the husband. It is possible that, in the absence of the statute, the court could do no more than to enforce the decree heretofore made, by proceedings to which the representative should be made a party, if it could do anything in the premises; it being suggested that in that case the wife would be on the same footing with any other claimant, and be obliged to obtain and be satisfied with allowance and payment through probate court.
“Under our statute, which authorizes the court to make the decree a charge upon the property, and to change and alter the decree from time to time, in the interests of justice (3 Comp. Laws, §§ 8640, 8641), we are of the opinion that, where the rights of bona fide holders have not intervened, the court may alter, amend, enlarge, or diminish the decree, as the necessities of the one and the ability of the other party may require, and that it may protect the child by making the decree a charge upon property to prevent its dissipation, and that the power is not determined by the death of the husband. * * *
“Both parties indicate a desire that the decree be further modified by fixing the period for which such provision shall continue, and determining the amount of the present value of the same, and providing for the immediate payment of such sum, in place of the periodical payments provided for by the original decree. We have no doubt of our authority to do this, under the provisions of the statute referred to, and, rather than to keep the estate open and defer distribution with the expense and possible loss necessarily attendant upon such a policy, we approve the alternative suggestion, and we hereby fix such amount, including arrearages and interest thereon, at the sum of $825, and make the same a lien upon the property of the estate not heretofore appropriated by order of the probate court, with priority over all other claims of the widow, heirs, and next of kin, except rights of dower.”

In Maslen v. Anderson, 163 Mich. 477 (128 N. W. 723), a decree of divorce was granted, and alimony was given to the wife payable to her monthly as long as she should live and remain unmarried. Later Mr. Anderson died, and the executor of his estate attacked the divorce decree upon numerous grounds. The court discusses at length the jurisdiction of circuit courts in chancery in alimony -cases, and holds it is strictly statutory. The court found that some things were included in the divorce decree that the court had no jurisdiction to include; but also held that—

“We are satisfied with the decree of the court below, in so far as it deals with the subject of alimony to be paid to Louisa A. Anderson.”

It will be remembered that this alimony was payable monthly during the life of Mrs. Anderson unless she remarried, and the case was decided after Mr. Anderson’s death. The language of the statute which appears in the opinion of Brown v. Brown, supra, is not ambiguous. It and the opinions from which we have quoted justify the modification of the decree as to alimony after the death of the husband.

On the part of the appellant, it is urged that the allowance is too large. Mr. Pingree died leaving but one child, a boy now nine years of age. The stock decreed to the complainant is 2,000 shares out of 7,667 shares. We do not think this can be said to be excessive. See Berryman v. Berryman, 59 Mich. 605 (26 N. W. 789); Walsh v. Walsh, 61 Mich. 554 (28 N. W. 718); Kirkland v. Kirkland, 111 Mich. 166 (69 N. W. 233); Van Der Beck v. Van Der Beck, 124 Mich. 479 (83 N. W. 150); Ferguson v. Ferguson, 147 Mich. 673 (111 N. W. 175).

It is urged that an annuity should be made or a cash sum decreed. We have examined the propositions of counsel, and are not convinced that the decree is unwise as it is.

Some criticism is made of the action of the executrix and trustee of the estate in declining, after the death of Mr. Pingree, to make the monthly payments. In view of the amount involved, the legal questions presented, and the advice of counsel, we think this criticism is not well taken. The executrix and trustee might 'well desire the opinion of the court before making these very considerable payments.

The decree of the court below is affirmed, but without costs to either party.

Steers, McAlvay, Stone, and Ostrander, JJ., concurred.