text:
    PEOPLE v. EVERTS.
    Intoxicating Liquors—Illegal Sale—Hired Witnesses—Instructions.
    The fact that the witnesses to whom an unlawful, sale of liquor was made purchased with a view to prosecute and obtain a reward for respondent’s conviction is important only as it bears upon their credibility, and the court is therefore justified in refusing an instruction which simply denounces their conduct as scandalous and reprehensible.
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted February 4, 1897.
    Decided March 23, 1897.
    William T. Everts was convicted of selling intoxicating liquors without having given a bond.
    Affirmed.

      Johnson & Stevens, for appellant.

      George F. Brown, Prosecuting Attorney, for the people.
   Montgomery, J.

Respondent was charged with the offense of selling intoxicating liquor without having given the bond, as required by law. The testimony was furnished by two detectives, who had been promised a reward for the detection and conviction of persons engaged in the business in the village of Fenton. The respondent, among other requests, preferred the following:

“ The encouragement of criminals to induce them to commit crime, in order to get up a prosecution against them, is scandalous and reprehensible.”

All the other requests of respondent appear to have been given. The court did charge, at the request of respondent, that—

“ The fact that it is claimed that liquor was purchased with a view to institute prosecution, based upon the evidence of Hanley and Green, is a circumstance which affects the credibility of said Hanley and Green, and you should scan their testimony more carefully than you otherwise would.”

And, further:

“Under our laws, a person who induces^ another to commit a crime with knowledge that the same is about to be committed under such inducements as are held out by the person inducing the same, if the same would not have been committed except at the instigation and approval of such person, then the jury should look upon the person who admits that he caused the offense to be committed with disfavor.”

We think these instructions were as favorable as the respondent was justified in asking, unless it can be said, as matter of law, that the fact that the parties to whom the liquor was sold were detectives is in and of itself a defense; and we think this is not the law. The case falls within People v. Curtis, 95 Mich. 212; People v. Murphy, 93 Mich. 41; People v. Rice, 103 Mich. 351; People v. Liphardt, 105 Mich. 80.

Conviction affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J. Grant, J.

license: Public Domain

text:
    HESS v. PREFERRED MASONIC MUTUAL ACCIDENT ASSOCIATION OF AMERICA.

    1. Accident Insurance — Hazardous Occupation—Incidental Employment.
    A provision in an accident policy that it shall be void as to all accidents occurring to the insured when “engaged in any profession, employment, or exposure ” not rated as preferred does not apply to the casual performance of an act pertaining to an excepted risk, if in the particular case it pertains incidentally to the regular employment of the insured.
    2. Same—Operation of Buzz-Saw—Question for Jury.
    A bank cashier cannot be said, as a matter of law, to have been engaged in an exposure not incident to his employment, while operating a buzz-saw in sawing a board to be used in the bank. Grant, J., dissenting.
    3. Same—Unnecessary Danger—Voluntary Exposure.
    Whether he thereby “ voluntarily exposed himself to unnecessary danger” is also for the jury to determine.
    4. Same—Burden of Proof.
    An accident insurance company has the burden, in an action upon a policy, of proving that an injury to plaintiff, shown to be the result of an accident, was within some exception named in the policy.
    5. Appeal—Instructions—Inconsistency.
    A party cannot complain of an inconsistency in a charge due to the fact that the court gave an instruction preferred by him which was more favorable to him than the law justified.
    Error to St. Joseph; Padgham, J., presiding.
    Submitted January 13, 1897.
    Decided March 23, 1897.

      Assumpsit by Lloyd B. Hess against the Preferred Masonic Mutual Accident Association of America on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Moore & Moore (H. P. Stewart, of counsel), for appellant.

      Howard, Roos & Howard, for appellee.

       Rehearing denied June 18, 1897.

   Moore, J.

The plaintiff sued the defendant to recover for the loss of a hand, which was cut off by coming in contact with a buzz-saw. The case was tried by a jury, who rendered a verdict in favor of plaintiff. Defendant appeals.

When the plaintiff was insured by the defendant, be was cashier in a bank. Plaintiff testified that be wanted a cabinet for use in the bank, and went to a planing mill to have some cherry boards sawed off with which to make the cabinet; that be told Mr. Bloom, an. employé, what be wanted; that the employé started the cut-off saw, and cut off some boards for the shelves, and took them to the band saw, to put more work upon them; that, while the employé was doing this, plaintiff saw the ends of the cherry boards on the floor near the cut-off saw, and thought be could use them for bandies to the cabinet, and requested a 14-year-old boy to saw them off for him; that the boy started the saw, but did not saw off the blocks as plaintiff expected him to do; that the plaintiff thought be could do it himself, and that be did saw them off; that, after be bad sawed off the blocks, be stood close up to the table, watching the boy, who was about 20 feet away, piling lumber; that be was simply waiting by the side of the table. Plaintiff further testified that be could not say bow long be bad been waiting, that it may have been one minute, or it may have been five; that there were sawdust and little blocks of wood on the floor; that be stepped on something, and stumbled, and lost bis balance, and threw out bis arms to save himself from falling, when his wrist came in contact with the saw, and his hand was cut off. He further testified that, when he told the proprietor of the mill what he wanted done, he was requested by him to show Mr. Bloom how he wanted the work done, and that he went into the mill for that purpose.

One of the defenses interposed was that the plaintiff cut off his hand purposely. It will, not be necessary to discuss that defense, because the jury have found against the defendant upon that proposition.

The other defenses are that the injury occurred while the insured was doing what was forbidden by the policy. ( Its terms were: "The member is required and agrees to use all due diligence for his personal safety and protection;” that the insurance should not cover “voluntary exposure to unnecessary danger. ”

The policy also contained the following provision:

“ Inasmuch as eligibility to membership in this association is confined by -its charter to persons whose occupations are comprised within the classification commonly known as ‘Preferred Risks’ by casualty companies, a copy of which classification is printed upon the back of this certificate, it is therefore agreed that this certificate shall be wholly void as to all accidents occurring to the insured when engaged in any profession, employment, or exposure not herein rated as a preferred occupation.”

It is the claim of the defendant that the insured “was engaged in a profession, employment, or exposure not rated as a preferred occupation in the policy,” and for that reason cannot recover; and that, as a matter of law, the judge should have so determined, and directed the jury to return a verdict for the defendant,—citing a number of cases in support of that contention, all of which are distinguishable from the case here, except the case of Knapp v. Accident Ass’n, 53 Hun, 84. This case does sustain the contention of appellant, but it is contrary to the great weight of authority. In Nibl. Acc. Ins. & Ben. Soc. § 409, it is said:

“A change of occupation means ’an engaging in another employment as a usual business.’ It does not apply to temporary employments during leisure hours, to acts done outside of one’s usual and ordinary business, or to casual employment in a different business.”

A provision of a-policy limited the liability of the company to a less sum than that named in the policy if the insured should be injured in any occupation or exposure classed as more hazardous than that specified in the policy. It was held that the terms “occupation or exposure classed by this company as more hazardous ” referred to distinct, classified occupations or employments, and that, to bring a case within the provision limiting the liability of the company, the insured must be within one of such classes,—that is, engaged in one of the more hazardous occupations. Miller v. Insurance Co., 39 Minn. 550.

A case involving the same principles which should control the disposition of this case is Stone’s Adm’rs v. Casualty Co., 34 N. J. Law, 371, in which the court said:

“The injuries excluded from the compensations of the policy are described as those that are ‘received in any employment or by any exposure either more hazardous in itself, or classified by the company as more hazardous.’ These terms, literally rendered, require that the assured, to come within their effect, must, at the time of the injury, be in an employment more dangerous than his own.- The language has respect to employments, and not to individual acts. It is true that a certain degree of ambiguity is introduced by the expression ‘other exposure,’ but, looking at the body of the policy, we find these terms used in the sense of the risks arising from a business or occupation. By adhering to the literal signification of the terms employed, these indorsements prefixed to the several classes of employments lose all force as independent stipulations, and serve the simple purpose of graduating such employments for the service of that provision of the policy which prohibits the assured from passing, at his own option, from one business to another. Understood in this viéw, they are properly a part of the classification; but, if they are to be received as containing new terms of the contract, they are entirely out of place. If the company intended to say to the assured that if he did any act which did not strictly belong to his own occupation, but was embraced more properly in some other business, and if thereby any harm to him accidentally resulted, that in such event he could claim nothing under his policy, it was easy for them to do so in plain language. Such a stipulation would obviously be one of a most important character, and we would expect to find it in the body of the instrument. A qualification of the agreement so restrictive of the rights of the party insured ought not to be admitted unless the terms of this indorsement will bear no other rational interpretation. If the terms used are imperfect or ambiguous, it is the fault of the defendants. It is their contract, and the construction of it must be most strongly against them.”

And it was held the plaintiff was entitled to recover.

The case of Union Mut. Acc. Ass’n v. Frohard, 134 Ill. 228 (23 Am. St. Rep. 664), is an instructive case. The opinion states:

“The principal contention of appellant is that the deceased was killed while engaged temporarily in an act or occupation classed as more hazardous than the one in which he was accepted, and that appellee is therefore entitled to recover only the amount provided for such hazardous risk and occupation. The contention of appellee is that there was no change of occupation within the meaning of the by-laws and certificate of insurance. The 'deceased was a hardware merchant. He did not follow the occupation of a hunter for hire or profit. He was killed while engaged in the act of hunting as a recreation, and it does not appear that he had hunted with a gun on any occasion since the issuance of the policy other than that upon which the accident occurred. The language of the policy is; ‘Any member receiving an injury while engaged, temporarily or otherwise, in an occupation more hazardous than the one in which he was engaged when insured,’ etc. ‘Occupation’ is defined by lexicographers to mean ‘ that which occupies or engages the time or attention; the principal business of one’s life; vocation; employment; calling; trade.’ The classification of hazards in the by-laws is made upon the basis of occupations. Merchants and those following other like vocations are placed in division A; grain measurers and others in division B. * * * The by-laws in question must receive a reasonable construction. It would be unreasonable and absurd to hold that the merchant who' at one time measured a few bushels of grain, at another hung a few rolls of wall paper upon his own premises, at another drove a team of horses in a carriage or wagon, and at still another rowed a skiff for exercise or recreation, became, within the true iñtént and meaning of these by-laws, at these several times, a grain measurer, a paper hanger, a teamster, and a boatman, respectively. The word ‘occupation,’ as found in these by-laws, must be held to' have reference to the vocation, profession, trade, or calling which the assured is engaged in for hire or for profit, and not as precluding him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations. * * * It ’ is urged, however, that the contract of insurance contains the words, ‘in any act or occupation,’ instead of the mere words, ‘in another occupation,’ found in the by-laws; and that the words, ‘while engaged, temporarily or otherwise, in an act,’ cannot be ignored, but that they have a definite and clear meaning, and must be given legal force and effect. It is to be noted that the words used in the contract are words selected and used by the corporation itself, and are, therefore, to be interpreted most strongly against it; or that, at all events, they are to be construed according to their common and literal meaning in favor of the assured. * * * We have already seen that the classification of hazards made in the by-laws is predicated only upon occupations. There is not in the by-laws or in the record any classification of hazards in respect to acts. In other words, there is no act which is classified as more or less hazardous than another, and no act which is classed as more hazardous than the occupation designated in the certificate of insurance Issued to the deceased. The case, then, does not stand otherwise than it would if the word ‘act’ were not found in the contract.”

See, also, North American, etc., Ins. Co. v. Burroughs, 69 Pa. St. 43 (8 Am. Rep. 212); Tucker v. Mutual Ben. Life Co., 50 Hun, 50.

Upon the feature of the case just discussed, the court, correctly as wé think, charged the jury as follows:

“ It-is provided in the conditions printed in the policy or certificate of membership, among other things, ‘ Said policy shall be wholly void as to all accidents occurring when engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation;’ and it is claimed* by the defendant that plaintiff was so engaged at the time he lost his hand. It is claimed by the plaintiff, however, that he was not- using the saw at all for any purpose at the time he lost his hand, and had not been for some time prior thereto. ■ The burden of proof to show that the plaintiff was using the saw at the time he lost his hand is upon the defendant, and, if you find that the defendant has failed to prove its contention in this regard by a preponderance of evidence, then you will have no further occasion to consider this branch of the case. In considering the question as to whether the plaintiff "was engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation at the time he lost his hand, I charge you that engaging in an occupation on the part of the person insured against injury by accident does not mean a casual engaging such as most men do, or may do, or may resort to during the intervals of time when their usual employment does not engage them, but rather to- engaging in "such employment as a usual business; and, even though you find that the plaintiff incidentally engaged in sawing off blocks from boai’ds at the time he lost his hand, you would not, for that reason, be required to find that he was injured while engaged in a profession, occupation, - or exposure not rated in the policy as a preferred occupation. The language of this condition of the policy must meet'with a reasonable construction at your hands. If the plaintiff was actually engaged in sawing blocks at the time he lost his hand, it will then be a question of fact for you to determine whether this act was one -that pertained incidentally to his regular occupation, or whether it pertained to that more hazardous occupation not classed as preferred, with the burden of proof on this issue upon the defendant. In determining this question you can and should take into consideration whether, under the evidence,’ the plaintiff was engaged, if you find he was engaged, at the time of the injury, in sawing blocks for his own use, or whether he was • engaged in sawing blocks for some one else; and if you find from the evidence and circumstances surrounding the case, as shown to you here in the evidence, that the sawing off of these blocks was for his own use, and if you find that the plaintiff, sawing them off at the time he lost his hand, was incident to .his ordinary occupation, you will be at liberty still to find for the plaintiff. Nearly every man, whatever his occupation, in the ordinary affairs of life, occasionally does an act or thing in connection with his ordinary avocation which might also pertain to some other occupation. For instance, the man insured in this company as a bank cashier might, while engaged in chopping his own firewood, accidentally cut his foot with an ax, and still it would not necessarily follow that he had changed his occupation from a bank cashier to a wood chopper. This chopping his own wood could be an incidént to his occupation as a bank cashier, although it might also be an incident to the occupation of woodchopping. The same rule would hold in regard to sawing off blocks from a board. A man insured as a bank cashier might, for his own use, desire or engage in sawing off blocks from a board, and still it would not necessarily follow that for that reason he had changed his occupation, or was engaged in an act pertaining to a profession, occupation, or exposure not classed in- this policy as a preferred occupation. As I stated above, this is a question of fact for you to decide from all the evidence that has been introduced in the case. Of course, if you do not-find from the evidence that the plaintiff was engaged in the act of sawing when he lost his hand, you will have no occasion to inquire further on this branch of the case. It is claimed by the plaintiff that he had quit sawing a few minutes before the accident. If you find from the evidence that this was the case, then it would be entirely immaterial whether some time before the accident he had been engaged in an act of sawing. That question becomes material only in case you find that he was actually engaged in operating the saw at the time he lost his hand.”

We think the case in principle is like the case of John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 45.

This brings us to a consideration of the question whether, when the insured has shown the injury to be the result of an accident, the burden is then upon the defendant to show, by way of defense, that the accident was within the exceptions named in the certificate of insurance. We think this question must be answered in the affirmative. Freeman v. Insurance Co., 144 Mass. 572. In this case the court cited with approval from Piedmont, etc., Ins. Co. v. Ewing, 92 U. S. 377, as follows:

“In an action upon a policy which contains many provisos and conditions there is a practical wisdom, which courts have recognized, in compelling the insurance company to allege and prove the want of compliance with any particular proviso or condition on which it relies.”

See, also, Nibl. Acc. Ins. & Ben. Soc. § 366, p. 707, and cases there cited; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 45.

It is urged that plaintiff cannot recover, because he voluntarily exposed himself to unnecessary danger, and his injury was the result of his own negligence. In relation to this defense, the judge charged the jury, after calling their attention to the provisions contained in the certificate of insurance:

“A member of this company must not be negligent; and if he receives injuries through his own carelessness or negligence, or rather contributory negligence, he could not recover under this policy, because he agrees to use all due diligence for his personal safety and protection. In other words, he must be ordinarily diligent in trying to protect himself. He cannot be negligent, and run into danger, and then charge the company, if he does it deliberately. Negligence, in its legal sense, is no more or less than a failure to observe fully that degree of care, precaution, and diligence which the circumstances justly demand whereby an injury is occasioned. It means the doing of something which a person of ordinary care, prudence, and discretion would not do under the particular circumstances, whereby an injury is occasioned. If you find in this case that there was negligence in such a degree as I have mentioned, negligence on the part of the plaintiff as I shall hereafter instruct you, he could not recover. * * * If an injury occurred within either of these exceptions I have read to you, there could be no recovery, because the terms of the policy exclude such injuries. For, if the person is injured under this policy while voluntarily exposing himself to unnecessary danger, it would not be accidental. * * * A condition of the certificate is to the effect that insurance under said policy or certificate shall not extend to or cover accidental injuries caused by the insured voluntarily exposing himself to unnecessary danger; and the defendant claims, under this condition and provision, the plaintiff cannot recover in this case. In order for the defendant to successfully defend under this condition, it must show by a preponderance of the evidence that the plaintiff did voluntarily expose himself to unnecessary danger at the time of the loss of his hand. I charge you, as a matter of law, that he did not voluntarily expose himself to unnecessary danger by going into Beckley & Austin’s planing mill. The mere going into the planing mill could not be such an exposure; and whether, while in there, he exposed himself voluntarily to unnecessary danger is a question of fact for you to determine, and the burden of proof is on the defendant to show that the plaintiff did so expose himself. Upon this question I charge you that the plaintiff had a right to go into the planing mill; and if, while in there, he conducted himself as a man of ordinary prudence and caution would conduct himself under like circumstances, then he cannot be said to have voluntarily exposed himself to unnecessary danger; and the burden of proof is upon the defendant to show that the plaintiff, while in the planing mill, did not conduct himself as a man of ordinary prudence and caution would or should conduct himself. It is claimed in this case by the defendant that the plaintiff purposely and intentionally sawed off his hand. If he intentionally and purposely sawed off his hand, of course he cannot recover in this case. This is, however, entirely a question of fact for you to determine; and I charge you also that, on this proposition, the burden of proof is on the defendant to show that the plaintiff did intentionally and purposely saw off his hand. It is for you to say whether, under the evidence in this case, the defendant has proved that question by a preponderance of the evidence.
“I also instruct you on the part of the defense: The plaintiff must prove by a preponderance of evidence that the injuries for which he seeks to recover were received from external, violent, and accidental means within the provision and outside of the exceptions of the policy upon which this suit is brought. He must satisfy you that he did not voluntarily expose himself to unnecessary danger, and'also that he was not injured while'doing or performing any act or thing pertaining to any occupation classed by the defendant association as more hazardous an occupation than the occupation under which the contract sued upon was issued, plaintiff having been insured as cashier of the First National Bank. If the plaintiff fails to prove ■either one of these elements, it will be your duty to render a verdict for the defendant. ■ If the plaintiff voluntarily exposed himself to unnecessary danger, your verdict must be for the defendant. By the words ‘ doing or performing ’ anything pertaining to an occupation classed by the defendant association- as more hazardous than the occupation under which the contract sued upon was issued, is meant any act naturally belonging to of done by a man engaged in that occupation. ’ It was not necéssary for the plaintiff to'be engaged in the' actual act of sawing. For the purposes of this case, any act naturally done by a man who acts as a sawyer, whether of preparation for the act of sawing or done after the act of sawing, is an "act pertaining to the occupation of a sawyer. Again, if the injury to the plaintiff resulted in whole or in part from his own negligence, then he cannot recover. Again, if the plaintiff stood leaning against the table, and his foot slipped, so as to throw him or his arm upon the table, causing this injury, he was- guilty of negligence, and cannot recover. The plaintiff must prove by a preponderance of the evidence that the injuries for which he seeks to recover were received from external, violent, and accidental means, within the provisions and outside of the exceptions of the policy upon which this suit is brought. That, you understand, would be the law governing this particular contract. This injury, if at all, must be external, it must be violent, and it must be by accident; and the plaintiff is bound to show that. If the plaintiff voluntarily exposed himself to unnecessary danger, of course your verdict must be for the defendant.”

He also charged the jury:

“Now, gentlemen, one very important question that arises for your consideration in this case is, Was this injury received by Mr. Hess because he voluntarily exposed himself to unnecessary danger? If you shall find in the affirmative of this proposition, that ends this case, and your verdict should be for the defendant, ‘No cause of action.’ And this question is for you to determine under all the evidence in the case. If you so find upon the affirmative qf that proposition, then the defendant should prevail. Was this act of Mr. Hess a voluntary exposure to unnecessary danger? To make him guilty of a voluntary exposure to unnecessary danger, he must intentionally have done some act which a reasonable, ordinary, and prudent person would pronounce dangerous. The undisputed evidence shows that he went into this planing mill on a matter of business between himself and the proprietor. The evidence also shows that other persons were at the time in thé mill, and there is some evidence that it was not an unusual thing for persons having business there to go into that mill, and transact business with the proprietors or their servants, as the case might be. Now, it is true that Mr. Hess voluntarily went into this planing mill, but there is a clean distinction between a voluntary act and a voluntary exposure to danger. The approach to an unknown or unexpected danger does not make the act voluntary' exposure thereto. The result of the act does not necessarily determine the motives which prompted the-action. The act may be voluntary, yet the exposure. may be involuntary. As I said before, these are matters for you to determine under all the circumstances surrounding this case, and in the light of the evidence as you find it.”

So far as the question of the negligence of the plaintiff is involved, the charge was quite as favorable for the defendant as it was entitled to have it made. See Nibl. Acc. Ins. & Ben. Soc. § 366; Freeman v. Insurance Co., 144 Mass. 572; Tucker v. Mutual Ben. Life Co., 50 Hun, 50; Providence, etc., Invmt. Co. v. Martin, 32 Md. 310; Fidelity & Casualty Co. v. Chambers, 93 Va. 138; Keene v. Accident Ass’n, 161 Mass. 149; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201; Schneider v. Insurance Co., 24 Wis. 28 (1 Am. Rep. 157); Hess v. Van Auken, (Com. Pl.) 32 N. Y. Supp. 126; Manufacturers’ Accident Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 945; 2 May, Ins. § 530. It is urged that this charge is inconsistent with itself. So far as this criticism is well taken, it grows out of the-fact that the circuit judge gave some of the requests to charge on the part of the defendant which were more favorable to it than the law would justify. So far as there was error in the charge as given, it was in the defendant’s favor, and it cannot complain.

The error assigned in relation to the admission of testimony we do not think it necessary to discuss, as we are satisfied it is not well taken.

Judgment is affirmed.

Long, C. J., Montgomery and Hooker, JJ., concurred with Moore, J.

Grant, J.

(dissenting). I cannot concur in that part of my Brother Moore’s opinion wherein he approves the following charge of the court:

“In considering the question as to whether the plaintiff was engaged in any profession, employment, or exposure not rated in the policy as a preferred occupation at the time he lost his hand, I charge you that engaging in an occupation on the part of the person insured against injury by accident does not mean a casual engaging, such as most men do, or may do, or may resort to during the intervals of time when their usual employment does not engage them, but rather to engaging in such employment as a usual business'; and, even though you find that the plaintiff incidentally engaged • in sawing off blocks from boards at the time he lost his hand, you would not, for that reason, be required to find that he was injured while engaged in a profession, occupation, or exposure not rated in the policy as a preferred occupation. The language of this condition of the policy must meet with a reasonable construction at yoúr hands. If the plaintiff was actually engaged in sawing blocks at the time he lost his hand, it will then- be a question of fact for you to determine whether this act was one that pertained incidentally to his regular occupation, or whether it pertained to that more hazardous occupation not classed as preferred, with the burden of proof on this issue upon the defendant. In determining this question you can and should take into consideration whether, under the evidence,. the plaintiff was engaged, if you find he was engaged, at the time of the injury, in sawing blocks for his own use, or whether he was engaged in sawing blocks for some one else; and if you find from the evidence and circumstances surrounding the case, as shown to you here in the evidence, that the sawing off of these blocks was for his own use, and if you find that the plaintiff, sawing them off at the time he lost his hand, was incident to his ordinary occupation, you will be at liberty still to find for the plaintiff. Nearly every man, whatever his occupation, in the ordinary affairs of life occasionally does an act or thing in connection with his ordinary avocation which might also pertain to some other occupation. For instance, the man insured in this company as a bank cashier might, while engaged in chopping his own firewood, accidentally cut his foot with an ax, and still it would not necessarily follow that he had changed his occupation from a bank cashier to a woodchopper. This chopping his own wood could be an incident to his occupation as a bank cashier, although it might also be an incident to the occupation of wood chopping. The same rule would hold in regard to sawing off blocks from a board. A man insured as a bank cashier might, for his own use, desire or engage in sawing off blocks from a board, and still it would not necessarily follow that for that reason he had changed his occupation, or was engaged in an act pertaining to a profession, occupation, or exposure not classed in this policy as a preferred occupation.”

The policy of insurance prohibited plaintiff from engaging “in any profession, employment, or exposure not herein rated as a preferred occupation.” I recognize the rule that such a policy is not avoided when the insured engages in those acts which are common to those engaged in the occupations referred, to, or, in other words, are common to mankind. As the learned circuit judge said, the plaintiff might chop his own firewood, he might saw off blocks from a board with a wood or hand saw, but it is different when he, goes into a dangerous place and assumes to run a dangerous machine with which he is unfamiliar. Plaintiff might, without avoiding his policy, go out in his row boat; but if he should deliberately undertake to shoot a dangerous rapids he would voluntarily expose himself in a manner not authorized by his policy. A man may enter his own manufactory, or that of another, to observe the engine or other machinery, without avoiding such a policy; but if he should undertake to manage the engine, either for pleasure or business, he would then become “ engaged in an exposure ” prohibited. Fishing, hunting, boating, wood chopping, and many other like acts which men usually do are not prohibited by these policies; but the rule cannot be extended to include every danger and risk to which the insured may see fit to expose himself. This case is parallel to Knapp v. Accident Ass’n, 53 Hun, 84, wherein the plaintiff was attempting to operate a buzz-saw. The court said: ‘ ‘ The work of operating a buzz-saw is proverbially dangerous, and is probably not less so when engaged in for amusement than when practiced as a business or occupation.” It appears to me contrary to reason to hold that an insured may, for amusement or temporary utility, expose himself to a risk far more dangerous to him than to one who is engaged in the business. The court should have instructed the jury that if this injury occurred while he was using the saw he could not recover. Counsel cite the case of Hess v. Van Auken, (Com. Pl.) 32 N. Y. Supp. 126,—another case growing out of this same accident. This point, however, was not involved in that case. The contrary request was preferred in that case, and refused. The ruling was sustained upon the ground that there was no evidence upon which to base it. That is not this case. There was evidence from which the jury might have found that plaintiff was injured while using the saw.

For this error I think the case should be reversed, and a new trial ordered.


author: Moore, J.

text:
    PEOPLE v. BAKER.

    1. Criminal Law—"Witnesses—Duty of Prosecutor.
    The rule requiring the people, in a criminal prosecution, to call as witnesses those who were present when the offense was committed, does not extend to persons who participated in the crime.
    3. Same—Accomplices—Cross Examination.
    A witness who testifies upon his direct examination as to statements made by him while under arrest for participating in the crime of which respondent is accused may be cross-examined by the prosecutor with respect to such statements,
    3. Same—Indorsing Witnesses on Information.
    The prosecuting attorney may be allowed, on a proper showing, to indorse the name of a witness on an information after the commencement of the trial.
    4. Appeal—Remarks of Counsel—Incomplete Record.
    Error assigned upon a statement of the prosecutor in his argument to the jury cannot be considered where the record fails to disclose what was said.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted February 4, 1897.
    Decided March 23, 1897.
    Charles Baker was convicted of burglary.
    Affirmed.

      Alvan G. Fleury and J. M. C. Smith, for appellant.

      Horace S. Maynard, Prosecuting Attorney, for the people.

       Rehearing denied May 1, 1897.

   Moore, J.

The respondent has been tried for and convicted of the offense of burglary. Mr. Maynard opened the case to the jury for the people, stating “that, among other things, he expected to show that the respondent, his brother, Adam Baker, and his nephew, John Smith, broke into Charles Tanner’s barn, which was within the curtilage, on the night of the 8th of June, 1895, and stole Charles Tanner’s wool, and that the wool was carried out to the road, and loaded into a buggy, and the buggy was tracked to the house of the respondent; that Charles Tanner procured a warrant to be issued in this case for the arrest of Charles Baker, not knowing that Adam Baker and John Smith had been with the respondent when the wool was taken; that afterwards, learning that Adam Baker and John Smith were with the respondent on the night in question, he swore out a warrant for the arrest of Adam Baker and John Smith, who had been arrested, and, upon examination, were bound over to this court, and that their case was the next case on the calendar following the case at bar.” .Counsel for respondent then moved the court for an order requiring the prosecuting attorney to indorse the -names of Baker and Smith upon the information, and call them as witnesses for the prosecution. The court refused to make this order, and his refusal is said to be error. It was the claim of the respondent that he was not guilty. The request for the order was based wholly upon the statement of the prosecuting attorney. If that statement was true, not only was the respondent guilty of the offense charged, but Adam Baker and John Smith were alike guilty. We know of no rule of law that requires the prosecution to call as a people’s witness a particeps criminis. People v. McCullough, 81 Mich. 34; People v. Considine, 105 Mich. 149; People v. Resh, 107 Mich. 251.

The respondent objected to a question put to Mr. Maston, but, before Mr. Maston answered the question, the objection was sustained.

John Smith was offered as a witness on the part of the defense, and testified that he was with Baker the night in question, and, in response to questions put by respondent’s counsel, testified that at first he denied being with the respondent the night in question, and assigned as a reason that his folks were not on good terms with Baker, and he did not want them to know he was with Baker. On the cross-examination, he was examined about these statements, and if he had not denied being with Mr. Baker, to Mr. Green, the sheriff, and Mr. Nichols, the justice. Objection was made to these questions, on the ground that the witness was under arrest, and could not be examined about statements made when he was under arrest. We think the examination was proper. It was simply cross-examination of a witness upon a subject about which he had testified in response to questions put to him by the counsel for respondent, and was proper, as bearing upon the question of the credit to be given him as a witness.

Errors are assigned in relation to the cross-examination of other witnesses. An inspection of the record shows the cross-examination to have been proper, in view of the testimony given in chief by the witnesses. It will not be necessary to discuss that feature further.

It is said to be error because the prosecuting attorney was allowed to indorse the name of a witness on the information, after the trial had commenced. This was not allowed until a proper showing was made. We do not think it error. Hill v. People, 26 Mich. 496; People v. Machen, 101 Mich. 400.

Error is assigned upon the refusal of the court to give certain requests to charge, and upon the charge as given. An inspection of the record does not show any error in that respect. The jury were carefully and guardedly charged as to the law of the case.

An assignment of error is made upon a statement made by the prosecuting attorney in his argument. He at once disavowed having made such statement, and the record does not disclose that he did make it. Exception is taken to other portions of the argument of the prosecuting attorney. The record does not disclose what was said by the prosecuting attorney, and we have no way of deciding whether it was objectionable or not. Welch v. Palmer, 85 Mich. 314; Farrand v. Aldrich, 85 Mich. 601. We discover no error in the record.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    CAMPBELL v. REMALY.
    Fraudulent Conveyances —Husband and Wipe—Recording Laws.
    Evidence that a deed to an undivided interest in land, executed by a husband to his wife in consideration of the discharge by her of a mortgage covering the whole parcel, was withheld from record for several years, and that the husband, in the meantime, obtained credit by representing himself to be the owner of the interest conveyed to the wife, is insufficient, in the absence of any showing that the wife participated in or had any knowledge of the fraud, to subject the grant to the claims of intervening creditors.
    Appeal from Clinton; Daboll, J.
    Submitted February 4, 1897.
    Decided March 23, 1897.
    Bill by Oliver B. Campbell and others against Frank Remaly and others in aid of execution. From a decree for complainants, defendants appeal.
    Reversed.

      Spaulding & Norton, for complainants.

      J. C. Flynn (Lyon & Dooling, of counsel), for defendants.
   Montgomery, J.

Complainants are bankers, and, in 1894, extended credit to defendants Frank and Albert Remaly, and, on the 30th of December, 1895, obtained a judgment upon their demand, amounting to $765.76. Prior to the 29th of June, 1895, the defendant Prank Remaly appeared by the record to be the owner of 120 acres of land in Clinton county. On that date there was placed of record a deed of an undivided one-half of these premises, running to his wife, Nina Remaly, which deed bore date April 12, 1888. Subsequently, on the 1st of July, 1895, there was placed of record a mortgage from Prank Remaly to his wife, on the remaining undivided one-half of said premises, for the sum of $1,000. After procuring a levy under an execution issued upon their judgment, complainants filed this bill, seeking to have both the deed and mortgage set aside as fraudulent, and made with a purpose to hinder, delay, and defraud creditors, and charging that there was no consideration for either the deed or the mortgage. At the hearing the court granted partial relief by setting aside the deed, but upheld the mortgage. Prom this decree the defendants appeal.

Complainants’ counsel very properly state that, as no appeal was taken by complainants, the transaction of the giving of the mortgage can only be considered as it gives color to the transaction relating to the deed. The testimony is neither voluminous nor involved The complainants offered testimony tending to show that, at the time of extending credit to Remaly Bros., the defendant Prank Remaly represented that he was the owner of the land in question. This, in addition to the fact that the deed was kept from record from 1888 to 1895, constitutes substantially the only testimony tending to indicate any fraudulent purpose on the part of .defendants. The evidence establishes very clearly that, when this land was originally purchased by the defendant Prank Remaly, a mortgage was given to one Mr. Darrow, the father of the defendant Nina, which mortgage was assigned to her by her father in May, 1886, and which assignment was duly recorded in November, 1886. Nor can there be any doubt that the deed of the undivided one-half was- made in consideration of the discharge of this mortgage, on the 12th of April, 1888. It does not appear that at this time Frank Remaly was engaged in any business which required credit. It cannot, therefore, be inferred that the deed was originally withheld from record with the fraudulent purpose of enabling the grantor to maintain a false credit. Nor are we able to find in the record any evidence which convinces us that there was any subsequent agreement or common purpose to withhold this deed from record with that intent. Indeed, the only fact from which it could be inferred consists of the continued withholding of the deed from record, and the false claims of ownership made by Frank Remaly. But these false claims are in no way brought home to the defendant Nina, and are not binding upon her. As we have frequently pointed out, the recording law does not render an unrecorded deed void as to intervening creditors who have not acquired a lien while the deed remained off the record. In this respect the statute differs from the chattel-mortgage statute (2 How. Stat. § 6193). See Wooden v. Wooden, 72 Mich. 353; Cutler v. Steele, 93 Mich. 204; Michigan Trust Co. v. Adams, 109 Mich. 181. We by no means intimate that, where there are other facts and circumstances tending to show that the purpose of withholding the deed was specifically that of giving a false credit to the grantor, this may not amount to a fraud which will postpone the grant to the claims of intervening creditors. We think this record does not justify any such inference as to the facts in this case. It follows that the decree will be reversed, and the bill dismissed, with costs of both courts to the defendant Nina Remaly.

The other Justices concurred.


text:
    BRIGHTON v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1'. Evidence—Contract oe Employment—Watver.
    Plaintiff, in an action against a railroad company for the breach of a contract to retain him in its employ for life at a fixed monthly salary in settlement of a claim for personal injuries, may show, for the purpose of rebutting a presumption of waiver of his right to the stipulated salary, arising from his acceptance of a smaller salary for several years, that he protested against the reduction to several in authority, that he consulted his attorney in regard to it, and that the latter advised him in effect that his acceptance of the lesser sum would not deprive him of the right to recover, in the event of his wrongful discharge, the full amount due under his contract.
    3. Same.
    Evidence of the' plaintiff’s general health, aside from the disability caused by the injury, is admissible in such action to aid the jury in determining the probable duration of his life, as bearing on the question of damages.
    3. Damages—Wrongful Discharge—Excessive Verdict.
    A verdict for §4,791 for the wrongful discharge of a railroad employé 47 years of age, employed under a contract that he should be retained for life in defendant’s service at a salary of not less than §43:75 per month, is not legally excessive.
    Error to Washtenaw; Kinne, J.
    Submitted February 5, 1897.
    Decided March 23, 1897.

      Assumpsit by William Brighton against the Lake Shore & Michigan Southern Railway Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Lehman Bros. and Thomas J. Navin, for appellee.
   Moore, J.

This case has been here once before, and is reported in 103 Mich. 420. The facts are so fully stated in the reported case that it will be necessary here to refer only to the facts first offered on this trial. Many of the legal questions sought to be raised here now were settled in the former trial, and must be treated as res judicata.

In disposing of the former case, this court held that, as the plaintiff received less than $43.75 per month for a long period of time, without protest or complaint, it was strong evidence against the execution of the contract, and was a clear waiver of his right to a subsequent claim of $43.75 per month for the time covered by such payments. It was held that it was not only evidence of waiver, but, unexplained, it amounted in the law to a waiver. On the second trial, for the purpose of showing that he had protested and made complaint at the reduction of his wages, and to do away with the presumption of waiver, plaintiff gave evidence of a talk he had with Mr. Miller, his attorney, and what was told him as to the effect of his accepting employment at a reduced rate; of his procuring Mr. Spencer, freight agent at Manchester, who kept his time, to write to Mr. Blodgett, division superintendent, that he would not accept the cut; that he made a protest to Mr. Corbus, road-master at Adrian; and that he went to see Superintendent Hand, at Detroit, to get reinstated. This is said to be error. "We think it was competent for the purpose for which it was offered.

This question and answer were given:

"Q. Aside from your disability, what is the condition of your physical and general health now, and how has it been since you were discharged ?
“A. My general health is good, but I very often have a pain in my back and in my side, so that I cannot do any heavy lifting. Can do light work as well as any man.”

It is said this was error. We think it was proper testimony to be given, for the purpose of enabling the jury to pass upon the probable duration of life, the plaintiff’s capacity for work, and to enable them to decide intelligently upon the question of damages.

Complaint is made that the court did not direct a verdict for the defendant. There is no reason now why he should direct a verdict for the defendant that did not exist when the case was here before.

The charge of the court upon the question of damages is said to be error. The court charged the jury in the language approved by this' court when the case was here before, and, in addition thereto, gave the requests to charge presented by the attorneys for the defendant. There is nothing in this- statement of the law of which the defendant has a right to complain.

The trial judge was. asked to grant a new trial, because the verdict was against the evidence, and because the damages were excessive. We have already held that the case was a proper one for the jury, and .there was testimony which, if believed by them warranted them in finding a verdict for the plaintiff.

Was the verdict so excessive that the court ought to interfere? The verdict was for $4,791, and was rendered in October, 1895. The accident occurred in 1874. The plaintiff was discharged in 1891, and, on the day of his discharge, was 47 years old. Testimony was given in detail of the earning capacity of plaintiff. Tables were introduced of his expectation of life. The jury had the facts before them, and they were correctly instructed in the law. We do not see any such disparity between the testimony and the verdict as would justify us in setting aside the verdict because it was excessive.

Judgment is affirmed.

The other Justices concurred.


text:
    BARRETT v. COX.
    1. Homestead—Validity of Lease—Wife’s Signature.
    A lease of a homestead, the title to which is in the husband, is valid if signed by both husband and wife, although the husband only is named in the body of the instrument.
    2 Trial—Omission to Show Material Fact—How Cured.
    Plaintiff’s omission to establish, by his evidence, certain facts material to his case, will not affect his right to recover, if the elements lacking are supplied by the evidence of the defendant.
    3. Summary Proceedings—Question of Title—Jurisdiction.
    A circuit court commissioner is not ousted of jurisdiction of a summary proceeding to recover possession of real estate by defendant’s mere assertion that the title to the land is in question.
    4. Landlord and Tenant—Parol Lease—Statute of Frauds— Tenancy at Will.
    A tenant whose possession is based upon a parol lease for an indefinite term is, in the absence of a reservation of rent due at stated intervals, or of other circumstances from which an intention to create a tenancy from year to year may fairly be inferred, a tenant at will. So held where a life tenant verbally leased the premises for the full term of his life, in. consideration of an agreement for his support.
    Error to Eaton; Smith, J.
    Submitted January 12, 1897.
    Decided March 17, 1897.
    Summary proceedings by Frank Barrett against Walter Cox and Elzada E. Cox to recover the possession of land. From a judgment for defendants, complainant brings error.
    Reversed.

      Lyman H. McCall, for appellant.

      John M. Corbin, for appellees.
   Montgomery, J.

This was a summary proceeding, brought before a circuit court commissioner, to recover possession of a house and lot. The case was tried before the circuit judge, without a jury, and there was a special finding of facts, from which the following material facts ,are deduced: Prior to August 31, 1888, the lot in question had been conveyed to defendant Elzada E. Cox, by one Francis L. Nichols. Nichols and defendants had jointly improved the same, and Nichols had made his home at defendants’ for a year or two prior to that time. On August 31st, Mrs. Cox conveyed the land to Nichols, at his request, and, at about the same date, Nichols conveyed it to the defendant Walter Cox. On the same date that this deed was made, a life lease was drawn up between Walter Cox and Nichols, which was signed by both defendants, and acknowledged before a notary public, although the name of Elzada E. Cox did not appear in the body of the instrument. On the same occasion, a verbal agreement was made between Cox and Nichols, by which it was agreed that Walter Cox should keep the premises in good repair, and keep the buildings insured against damage by fire; that the two defendants were to occupy the premises and furnish a home for Nichols during his lifetime, care for him in sickness, and do his washing and mending, and allow him the use of two certain rooms whenever he made his home there, and Nichols was to pay Cox and his wife six dollars per week for the time he stayed there. In pursuance of this arrangement, Nichols remained there with them for about a year, but has never paid anything for the use of the same. Nichols is a man now about 91 years of age. The defendants Cox have continued to occupy the premises, which are worth not to exceed $1,000, and have paid taxes upon the premises, and kept the buildings insured. They are willing to carry out the arrangement entered into between the parties for the care of Mr. Nichols. The complainant has derived the title conveyed to Nichols under the life lease, by proper conveyances. On June 25, 1895, a notice to quit was served on the defendants, and this suit was instituted on November 7, 1895. The circuit judge found, as a conclusion of law, that complainant is not entitled to the possession of the premises, and entered judgment for defendants. The grounds upon which he proceeded are not stated in the findings.

It is suggested that, as the name of Elzada E. Cox did not appear in the body of the lease to Nichols, the same does not operate as a conveyance of her homestead right. As appears from the above statement, the title to this land was in the defendant Walter Cox, who was the proper person to be named as lessor in the instrument. The rights of the wife under the Constitution (article 16, § 2), as well as under the homestead statute (2 How. Stat. § 7722), cannot be barred except the signature of the wife be attached to the mortgage or other alienation of such land by the owner thereof. In this case the signature was attached, and we think this is a sufficient compliance with the statute.

It is next said, in support of the ruling below, that complainant made his case by showing the possession of defendants, and title in himself, and that there was no showing of any relation of tenancy when the complainant rested his case. But the defendants did not see fit to rest their case upon the complainant’s showing, and, if they had done so, further proof might have been admitted, in the discretion of the trial judge; and as, upon the whole case, it did appear just what the relations of the parties to the agreement were, this objection is without force.

It is also suggested that title to land came in question. But the mere fact that there was an assertion that title to land was in question did not oust the court of jurisdiction. See Butler v. Bertrand, 97 Mich. 59.

The principál contention is that the defendants became, by the oral arrangement, tenants from year to year, and that sufficient notice to terminate the tenancy was not given before the proceedings were instituted; and this is the question upon which the case must turn. The statute (2 How. Stat. § 6179) provides, in effect, that interests in land, other than leases for less than one year, shall not be valid unless in writing. It was held in Huyser v. Chase, 13 Mich. 98, that, under a verbal lease for 21 months, the lessee, entering into possession of the premises, and paying rent monthly in advance, became a tenant at will. It was said by Martin, C. J.:

“The contemplated contract for a leasing for 21 months was never reduced to writing, and was therefore void, under the statute of frauds. The entry of the plaintiffs was, consequently, under no lawful agreement for any specific term; and the consent of Chase to the occupancy, and the acceptance of rent by him, establishes nothing .but that such occupancy was at his will. No term was fixed, and no rent agreed upon for any term. The acceptance of a payment of rent monthly proves nothing, in the absence of a specific agreement that the tenancy should be from month to month, or for a specified time. It only shows that the occupancy was permitted at the landlord’s will.”

In Coan v. Mole, 39 Mich. 454, and in Morrill v. Mackman, 24 Mich. 279 (9 Am. Rep. 124), it was held, in accordance with the doctrine elsewhere, that although a lease is void under the statute of frauds, if it is for a term of years, thus evidencing an intent of an annual renting, it is to be held good as a lease from year to year. The same holding was reiterated in Schneider v. Lord, 62 Mich. 141, in which case it was said:

‘‘ The case of Huyser v. Chase, 13 Mich. 98, is not authority for the contrary doctrine. There the parties had agreed verbally to make a written lease for 21 months, and, after going into possession, the lessees refused to accept a written lease, and no other contract was made. It was therefore, manifestly, an indefinite holding.”

And, of the case under consideration, the court further said:

"The fact that the rent was payable monthly did not any less make it a contemplated yearly holding. This being so, we think, the holding over and acceptance of rent continued it as a tenancy from year to year, and not from month to month.”

It will be noted that it appears in the statement of facts in that case that it was contemplated that there should be a two-years occupancy from the beginning of January, 1884.

This subject was again fully reviewed by Mr. Justice Champlin, in Huntington v. Parkhurst, 87 Mich. 38 (24 Am. St. Rep. 146), in which there was an oral lease of a store building for one year, with the privilege of three or five years, for a yearly .rental of $500, payable monthly. This was held to be a tenancy from year to year. Stress is laid upon the fact that there was to be a holding, at all events, for one year, and with an additional term, depending upon- the election of the lessee.

But in the present case the oral lease being void, there was no“ definite term of occupancy fixed by the contract. Neither was there a reservation of annual rent, or rent payable at any stated intervals. Under these circumstances, we think a tenancy from year to year cannot be said to have been created. In Laughran v. Smith, 75 N. Y. 205, it was said that—

“Although a parol lease for more than a year is void, yet it has long been settled that, when the tenant enters and occupies, the agreement regulates the terms on which the tenancy subsists, in all respects, except as to the duration of the term. It is a reasonable inference in such case, from the circumstances, that the parties intended a tenancy on the terms of the original agreement, and the law implies a new contract between the parties corresponding therewith, so far as it is not in conflict with the statute.”

But it cannot be said in this case that the parties contemplated the occupancy of the premises for a definite period, as a year. The right to occupancy might be terminated within a year, if the parol contract were valid, or would extend indefinitely, during the life of the lessor. We think, in such case, that it would be doing violence to the facts to hold that the parties in occupancy under such a void lease intended to create a tenancy from year to year.

The case of Richardson v. Langridge, 4 Taunt. 128, is a leading case upon the subject. In that case it appeared that defendant had taken a lease of a close of land, and built a shed thereon, in August, 1810, and let the same, by parol, to plaintiff, upon an agreement, without any reference to time, that the plaintiff should convert it into a stable, and that defendant should have all the dung made by the horses. The question was whether this created a tenancy from year to year in favor of plaintiff. It was contended by the plaintiff that there was no such thing at this date as a tenancy at will, but this proposition was denied. It was said by Chambre, J.:

“ The taking of the dung by the landlord gave the tenant no term in the premises. Surely, the distinction has been a thousand times taken. A mere general letting is a letting at will. If the lessor accept a yearly rent, or rent measured by aliquot parts of a year, the courts have said that is evidence of a taking for a year.”

This case is referred to by Parke, B., in Braythwayte v. Hitchcock, 10 Mees. & W. 497, as having laid down the law correctly that a simple permission to occupy creates a tenancy at will, unless there are circumstances which show an intention to create a tenancy from year to year, as, for instance, an agreement to pay rent by the quarter or some other aliquot part of a year. See Tayl. Landl. & Ten. §§ 55, 59; Williams v. Deriar, 31 Mo. 13; 12 Am. & Eng. Enc. Law, 675.

Defendants’ counsel cites the case of Ganson v. Baldwin, 93 Mich. 217, as holding a contrary doctrine. The language employed in the case, referring to the agreexnent, is that “the agreement testified to by complainant was good for a year, and, while acquiesced in by her, the defendant must be considered as holding from year to year,” and appears to have been based upon Schneider v. Lord, 62 Mich. 141, and Huntington v. Parkhurst, 87 Mich. 38 (24 Am. St. Rep. 146). It is clear from an examination of the case that this holding was unnecessary to a determination of the case. The language was dictum, and, we think, is not in harmony with the authorities in this State or the preponderating authority elsewhere.

The defendants not having an estate from year to year, but being tenants at will, it follows that the notice to quit was sufficient; and, this being so, the complainant is entitled to recover.

The judgment of the court below will be reversed, and judgment entered.in this court for complainant.

The other Justices concurred.


author: Hooker, J.

text:
    HOME SAVINGS BANK v. McLAREN.

    Bills and Notes—Mortgage Security—Pro Rata Application— Rights op Indorser.
    The indorser of a note who consents, in consideration of the benefit accruing to him, to the acceptance of any such security and the grant of such extensions of time as the holder may see fit, is entitled to have the proceeds realized upon a mortgage thereafter given to secure such note, and'other notes on which he is not liable, applied pro rata, in the absence of any apparent advantage to the indorser from waiving his rights other than the benefit derived from the security.
    Error to Wayne; Daboll, J., presiding.
    Submitted February 5, 1897.
    Decided March 23, 1897.

      Assumpsit by the Home Savings Bank against John P. McLaren upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Modified.

      Thomas S. Jerome, for appellant.

      George W. Radford, for appellee.

       Rehearing denied June 18, 1897.

   Hooker, J.

On June 24, 1891, Charles P. Toll gave a promissory note for $288 to McLaren, the defendant, who indorsed and sold it to the plaintiff, the Home Savings Bank. On January 23, 1892, the defendant signed a writing, reading as follows, viz.:

Whereas, the Home Savings Bank, of Detroit, Michigan, is the holder and owner of a note made by Charles P. Toll, and indorsed by the undersigned, which note is for the sum of two hundred and eighty-eight ($288.00) dollars, and bears date June 24, 1891, due four months after date: Therefore, for and in consideration of the benefit accruing to me, the undersigned, I hereby consent that said the Home Savings Bank may accept such security, and grant such extensions of time, for the payment of said note as its officers may deem proper, and that the same shall not in any way affect my liability on said note.
[Signed] “ John P. McLaren.”

Two days later, Toll gave a bond to the plaintiff, conditioned that he should pay to the plaintiff the sums of money due to it upon the following promissory notes, viz.:

This bond was secured by a mortgage on real estate, given by Toll. On a suit to foreclose this mortgage, wherein all were parties except Haulenbeek and the defendant, and upon an order pro confesso, except as to Heames, a decree and order of sale were made, December 1, 1894. The amount found to be due was $10,682.37 and interest from July 26, 1894. The decree provided that, in the event of the sale not realizing enough to pay the decree, the complainant have leave to take proofs as to the liabilities of St.' Aubin, Charles Toll, Hinchman, and Heames, and “that the application of the sum so received from said sale to the payment of said several promissory notes shall abide the further order and decree of this court.” No order as to application of this sum has been made. On February 16, 1895, the property was sold for $6,000, under the order of sale, and $5,925.49 was paid complainant on its debt, and a deficiency of $5,204.-28 reported. The amount paid on the debt amounted to 52.9 per cent, of the amount then due. There is no showing or finding that plaintiff made any application of this amount so received to the payment of any particular note. On October 10, 1895, another decrees was made as to the liabilities of the parties collaterally liable, finding the parties named below liable as stated below, and executions were awarded as follows: Against Frank C. St. Aubin, $3,103.25; against Charles Toll, $3,360.25; against John A. Heames, $1,248.82; against James A. Hinchman and John A. Heames, $993.04,—these being the entire amounts of the respective notes and interest; and that the sheriff should bring the surplus amount received over and above the deficiency into court, to abide the further order thereof. The entire amount of the execution against Frank C. St. Aubin has been collected and paid over to complainant. Executions against Heames, and Hinchman and Heames, were issued, but are not returned. This action was begun on the promissory note on July 11, 1895. On March 2, 1896, defendant made a tender to plaintiff of $177.90, and $30 for costs already accrued. This tender was refused.

The above facts are undisputed, and no exceptions were taken to the court’s findings of fact. Based upon them, the court proceeded to render judgment against defendant for the full amount of the note, with interest and costs. Defendant contended that the foregoing operated as a payment of his note, at least in part, and requested a judgment in his favor; failing this, a judgment against him for 22 per cent, of the note and interest; or, failing that, a judgment against him for 47.1 per cent, of the note and interest. They were all refused.

The writing signed by the defendant shows upon its face that the permission to grant extension of time, and accept security, without affecting his liability upon the note, was for and in consideration of the benefit accruing to him. The only benefit apparent is such protection as the security should afford, but it is now said that this was not intended' as a security for his benefit, but merely for the benefit of the plaintiff, who, nevertheless, insists that the defendant is bound by the writing. In English v. Carney, 25 Mich. 178, it was claimed that security should not be ratably applied in favor of an indorser, and it was there said that the right to have the mortgage apply pro rata to the several notes would seem to have been the'intent of the parties at the time the indorsement was made, “ as there was nothing tending to show that Maxwell would have indorsed it had it not been secured by the mortgage, and he must therefore be regarded as relying upon the security of the mortgage in making the indorsement.” The same and more may be said in this case, for the defendant evidently relied upon the proposed security as an advantage to him, for which he was willing to part with some of the legal rights of an indorser.

We do not attempt to determine the rights of the defendants in the foreclosure case, because the facts and parties are not fully before us, and, further, the decree shows that the court did not determine finally the liability of any of them. Hence we cannot say that the defendant is entitled to claim any payment upon his note, beyond his proportionate share of the money received upon the sale of the mortgaged premises. We think he was entitled to this.

The judgment is reversed, and a judgment entered here for 1180.68, with interest from November 28, 1896,, and costs of the circuit court. The defendant will recover costs of this court.

The other Justices concurred.


text:
    FINLEY v. WIDNER.
    1. Slander—General Reputation—Evidence.
    Evidence of the general reputation of a driver of race horses for dishonesty in failing to account to the owners for the winnings of horses driven by him is admissible on the question of damages in an action by him for alleged slander in charging him with theft in that he retained the winnings of defendant’s horse.
    2. Same—Justification—Instructions.
    Such evidence is not conrpetent, however, in support of defendant’s plea of justification, and it is error for the circuit judge to refuse so to instruct the jury.
    3. Same—Burden oe Proof.
    Plaintiff in an action for slander having shown the utterance of slanderous words in the presence of third persons, the burden is upon the defendant to prove his justification.
    4. Same.
    Justification for the utterance of slanderous words imputing the commission of a felony may be established by a preponderance of the evidence only; it being unnecessary to produce a record of conviction, or to show plaintiff’s guilt by evidence sufficient to convict him if he were on trial for the crime charged.

      Error to Alpena; Kelley, J.
    Submitted February 5, 1897.
    Decided March 23, 1897.
    Case by William Finley against John A. Widner for slander. From a judgment for defendant, plaintiff brings error.
    Reversed.

      J. D. Turnbull, for appellant.

      Dafoe & Gustin, for appellee.
   Moore, J.

This is an action of slander brought because of certain words spoken by defendant. The declaration contains the usual formal allegations in a declaration in slander, and has three counts. The first count charges defendant with declaring to plaintiff: “You are a damn thief; you are a damn robber. ” The second count charges defendant-with declaring of the plaintiff: “My professional driver did me up for over three hundred dollars.” The third count charges defendant with stating concerning plaintiff: “He robbed and beat me out of three or four hundred dollars.” The plea is the general issue, with notice that defendant would justify the speaking of the words, etc., and prove they were true; denying that plaintiff was a man of good character in his particular profession, as alleged in his declaration, and setting up specific acts of misconduct of plaintiff, committed by plaintiff in his business relations with his employers. The case was tried before a jury, who rendered a verdict for defendant. Plaintiff appeals.

The record shows that plaintiff’s business was training and driving horses; that in February, 1895, he entered into the employment of defendant, to train and take care of defendant’s mare called “Laundry Girl,” and was to receive pay for his work by the week, and that this arrangement continued up to August 10, 1895, when plaintiff and defendant settled up in full and a new agreement was made. Defendant wanted to sell the mare, and sent her away from Alpena for the purpose of selling her. Plaintiff was to train and drive her, and receive for his work $12 per weejr and expenses. The defendant was at the races at Port Huron and Detroit, and attended to the entering of the mare in races and drew her winnings. Defendant tried to sell the mare after the Detroit races, which occurred September 3, 1895. Plaintiff returned to the city of Alpena in October, 1895. He went to defendant’s office, and defendant, in his private office, declared the slanderous words set forth in count 1 of the declaration, and at other times in said city declared and published the words alleged in the other counts of the declaration. The trouble which resulted in plaintiff’s bringing this action grew out of the refusal of plaintiff to turn over to defendant the winnings of “Laundry Girl” won at races at several places after the 3d day of September, 1895. „ It was the claim of the plaintiff that defendant had tired of his experience as the owner of the mare, and gave her to plaintiff. The defendant denies this, and claims that plaintiff was to look after the mare, enter her in the races, sell her if he could, and keep track of his receipts and expenditures, and was to account to defendant for the proceeds. It is further claimed that plaintiff received winnings from the mare; that, when he was called upon to account for what was due defendant, he then claimed to own the mare, and refused to turn over her winnings or the amount for which she was sold; and that because of this the words were spoken, and that they were justified by the action of the plaintiff.

Defendant was allowed to show what the general reputation of the plaintiff had been in reference to honor and integrity in turning over moneys that came to him as earnings of horses he had driven. This is assigned as error. We think the testimony was competent as bearing upon the question of damages. It was not competent as bearing upon the question of justification, and the jury should have been so instructed, as requested by the plaintiff. Fowler v. Gilbert, 38 Mich. 296.

The court was requested to charge the jury that the burden was upon the defendant to prove the truth of his justification. This the court refused to do, and charged the jury two or three times over that the burden of proof was upon the plaintiff, not only to establish the speaking and uttering of the words alleged to be slanderous, but that the words, when uttered, were false. It is said by plaintiff that, to support a plea of justification, defendant must produce a record conviction of the crime, or else show plaintiff’s guilt by evidence sufficient to convict him if he were on trial for such crime. We do not think this contention, or the charge of the court, is a correct statement of the law. When the plaintiff has shown the uttering of the words that are slanderous, in the presence of other persons than the plaintiff and defendant, he has established his cause. The burden is then upon the defendant to prove his justification. If he establishes his justification by a preponderance of evidence, it will be sufficient. Peoples v. Evening News, 51 Mich. 12; Bell v. McGinness, 40 Ohio St. 204 (48 Am. Rep. 673), and cases there cited.

The other assignments of error do not require discussion. For the errors pointed out the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    HILL v. BATEMAN.
    Deeds—Notice—Bona Fide Purchaser.
    Land, was deeded to complainant in payment of a debt by one who had forged the certificate of record on the deed, and who had no other title than a contract of purchase, which he had previously assigned to a creditor. The grantor was arrested, and committed suicide, leaving a letter directing payment of part of the proceeds of his insurance to such assignee on condition that he deed the land to complainant. The assignee received the money, but executed a quitclaim deed to one who had been intrusted with the money and with the duty of procuring the deed for complainant, and such grantee conveyed to defendant. Defendant was an intimate friend and a creditor of deceased, and had become bail after his. arrest, and admitted that he knew of the letter. Held, that defendant had notice of complainant’s claim.
    Appeal from Kent; Grove, J.
    Submitted February 10, 1897.
    Decided March 23, 1897.
    Bill by Esther Hill against Eugene Bateman and others to set-aside certain deeds, and to procure the execution of a new deed to complainant. From a decree dismissing; the bill, complainant appeals.
    Reversed.

      C. O. Smedley (Benn M. Corwin, of counsel), for complainant.

      Fletcher & Wanty, for defendants.
   Hooker, J.

Esther Hill, the complainant, filed the bill in this case to compel the defendant William Winegar to convey to her a city lot, and to declare two deeds given to Eugene Bateman and Frank P. Smith, respectively, void. Charles Bateman held a land contract for the lot, given him upon an agreement to purchase, from Reynolds & Franklin. Bateman assigned this contract to Winegar, to secure him for a debt, and Winegar paid the consideration, and took a deed from Reynolds & Franklin, knowing, when he took the deed, of the complainant’s claim. Complainant was housekeeper for Bateman, and he gave her a deed of the premises, duly signed and witnessed, the acknowledgment and certificate of record being forged. She testifies that this was in part payment of a debt, and we so find the fact. Some months afterwards, she learned that this deed was a forgery, and that Bateman’s only title was a land contract, and that this had been assigned to Winegar, and that Winegar was about to take a deed. This resulted in Bateman’s arrest, which was soon followed by his suicide. He left no will, but left a letter to his sister Mary Bateman, a resident of Iowa. Of this letter the following is a copy:

“Batesville, Ark., Oct. 2d, 1893.
“To My Dear Sister, Mary E. Bateman, Cresco, Iowa: I wrote you on this date that I had made you a beneficiary in my Life Ins. Pol. to the Amt. of $2,000, Royal Arcanum order, trusting to your devotion and faithfulness to disburse the same as I may instruct you, which is as follows, viz.: $200 for funeral expenses, &c.; $400 for yourself and my dear mother; $350 to my beloved wife, Ida M. Bateman, Batesville, Ark.; $200 to B. Mesman, H. N. Dosker, Agt., on condition of his deeding to Mrs. Esther Hill lot 29 Orchard Hill Add. to city Grand Rapids, Mich.; $285 to Wm. Winegar, on his deeding to Mrs. Esther Hill lot No. 20 of Reynolds & Franklin’s 3d Add. to city of Grand Rapids, Mich., and said Winegar to release all claim to furniture and all • obligation against me; $450 to F. P. Smith, 615 Mich. Trust Buldg., Grand Rapids, Mich.; $115 Bal. as the necessities of my children, Arthur É. & Grace E., may require from time to time, and such other incidentals as might arise. Now, I trust, my dear sister, that this will be treated as a sacred request from an affectionate brother. I would advise you to correspond with either F. P. Smith or William Wine-gar, who will gladly aid you in fulfilling the requirements of this obligation. They are both gentlemen in whom you can trust fully. God will bless and aid you in carrying out this, the last request of an affectionate brother.
“Charles Bateman.”

It would seem that Mary Bateman received the money on the life policy, for she sent her brother Eugene Bate-man to Grand Rapids to adjust the matters in accordance with the wisheá of Charles Bateman. Eugene paid Winegar as directed, but, instead of having lot 20 deeded to Esther Hill, he took a deed to himself, and sold the property to defendant Smith for $175, the deed reciting a consideration of $400 or $475.

Under, this state of facts, about the only question in the case is the bonafides of Smith’s purchase. Winegar undoubtedly had the right to pay up the contract, and take a deed, to preserve his security. The deed to Mrs. Hill was an assignment of Bateman’s right to redeem. On payment by her, Winegar would have been under obligations to deed to her. He gave a quitclaim deed to Eugene Bateman, knowing that she had such right, possibly because it was necessary to induce Bateman to pay. But Bateman assuredly had no right to sell the property to Smith. He was in duty bound tq do as instructed, viz., take a deed to Esther Hill, and, having received a deed to himself; he should have conveyed to her. But he took no better title than Winegar had, and he could sell Smith nothing more, as his deed was a quitclaim. So, at the most, Smith held a deed as security for the debt due to Winegar; and, if the question were raised, it is extremely doubtful if he could claim to be á bona fide purchaser in the law—First, because there ‘is nothing to show that the Winegar claim was negotiable; second, it was probably overdue, and had actually been paid by Eugene. But we find it unnecessary to rest the case upon this ground. The evidence satisfies us that Mr. Smith was fully aware of complainant’s claim, and we discredit the pretense that he was ignorant of the directions to Mary Bateman, and what Eugene did in the matter. He was the intimate friend and creditor of Charles Bateman. ' He signed his bail bond. He admits that he knew of the letter to Mary Bateman, for he says that he was interested in ascertaining whether his claim was provided for or not, and he admits that he talked with the coroner about it. In short, we find enough in his own testimony, to say nothing of the complainant’s, to dispose of his statement that he purchased in ignorance of her claim.

We are of the opinion that the decree of the circuit court should be reversed, and a decree entered in accordance with the prayer of the bill, with costs of both courts; and, further, that, if occasion requires, said decree may be entitled to record as evidence of complainant’s title to the premises. Ordered accordingly.

The other Justices concurred.


author: Grant, J.

text:
    ELDRED v. SHAW.
    1. Wills—Construction—Estates in Land.
    A will devising certain real and personal estate in trust for the testator’s grandson, with directions to the trustee to manage, direct, and control such land until the grandson should arrive at the age of 31 years, and to appropriate no more of the income from the trust estate for the support and maintenance of such grandson than should be made necessary by accident or misfortune (the grandson having a father living), and providing that, in case of the death of the grandson without heirs by his body begotten, such land and property, with all its increase or accretions, should go to the testator’s children, their heirs and assigns, does not limit the contingency of death without issue to the minority of the grandson, but creates a life estate only in him upon attaining his majority, with remainder in fee to his issue, if any, and, if not, to the testator’s children and their heirs. 3 How. Stat. §§ 5519, 5520.
    3. Same—Accumulation of Rents and Profits.
    Under such will, the income from accretions during the minority of the grandson is payable to him during his life, and, upon his death, the principal passes to the same persons as the real estate.

      Appeal from Oakland; Smith, J.
    Submitted January 12, 1897.
    Decided March 29, 1897.
    Bill by Ratie Eldred against Henry A. Shaw and others to construe a will. From a decree for complainant, defendants appeal.
    Reversed.
    Marvil Shaw executed his last will and testament May 5, 1875. He died September 17, 1876. At the time of the execution of the will, complainant, his grandson by testator’s daughter, was about a year old. His mother was dead. Mr. Shaw was possessed of a large estate. He left as his legatees three sons, two daughters, and his grandson, the complainant. He divided his estate, consisting mostly of land, among his children, devising to each specific parcels, and to each attached his estimate of its value. The seventh clause—the one over which this controversy arose—is as follows:
    “I give, devise, and bequeath to my son Lysander Shaw, in trust for my grandson, Rata Eldred (so called), the son of my deceased daughter, Rachel Eldred, the undivided half of those lands above described, situate in the township of Oxford, and known as the northeast quarter, the northeast quarter of the southeast quarter, the east half of the northwest quarter, the west half of the northwest quarter, and the southeast fractional quarter of the southeast quarter, all in section 16, in township 5 north, of range 10 east, containing 438 acres, which I estimate, apportion, and appraise at the sum of $11,000, including in the above sum so appraised the undivided half of 400 sheep now on the said farm; which said son, Lysander Shaw, I direct to manage, direct, and control the said undivided half of said lands and tenements, as the trustee of the said son of my said daughter Rachel, up to the time the said grandson arrives to the age of 21 years, and that the said son, Lysander, shall use and appropriate no more of the use or income from the said trust estate for the support, education, and maintenance of the said grandson than is made necessary by accident or misfortune, and such use and appropriation is to be entirely under the judgment and discretion of my said son, Lysander; and, in the case of the death of my said grandson without heirs by his body begotten, the lands and property above described, with all its increase or accretions, I give, devise, and bequeath to my said sons, Lysander, Henry, and William, and my said daughters, Matilda and Sally, share .and share alike, and to their heirs and assigns forever.”
    The will was duly admitted to probate. Lysander accepted the trust, and executed it until his death, in 1887. Upon his death, complainant, by his next friend, filed a bill of complaint in the circuit court for the county of Oakland, in chancery, setting forth the will, the death of Lysander, and praying for the appointment of a guardian or trustee to succeed to and carry out the trust created by this seventh clause. The bill also set forth that the meaning of this clause was uncertain and vague, that doubt exists as to the legal effect of the same, and prayed the court to determine what estate is created thereby, in both realty and personalty, the time the estate will come into complainant’s possession, and when the contingency named therein will happen, to defeat his estate and vest the remainder in the children of Marvil :Shaw. The court entered a decree February 12, 1889, ■decreeing a trust, appointing a trustee to execute it, and deferring the meaning and construction of the will until the death or majority of complainant should occur. Complainant attained his majority March 7, 1895, and thereupon presented this petition, asking that the suit be revived and the will construed. Upon the hearing the court entered a decree determining the true intent and meaning of this clause to be to limit the contingency ■of death without issue by his body begotten of the complainant to the duration and period of the trust, to wit, his minority, and to vest the fee of said lands, together with the accumulations, accretions, rents, issues, and profits thereof, in the complainant, Eatie Eldred, at his majority. The petition also prayed for an accounting by the trustee. This has been duly rendered, and is satisfactory to all the parties. It shows a considerable amount of personalty in the hands of the trustee.

      Dwight N. Lowell, for complainant.

      Geer & Williams, for defendants.
   Grant, J.

(after stating the facts). 1. The contention of the complainant is that the contingency of issue related solely and exclusively to the event of death before he attained the age of 21 years; that if he died before that age, leaving issue, the issue would take; and that the title became absolute and vested, relieved of any trust or remainder in favor of the defendants, the moment he attained his majority.

The contention of the defendants is that the will disposed of-the real estate as follows:

(1) In trust for complainant in the event of accident or misfortune during minority, at the discretion of the trustee, and that the trust then ceased.

(2) A fee simple in complainant, giving him the use of the property, his title defeasible in the event of his death without issue then living.

(3) A fee simple absolute to the issue of his body, if there were such living at the time of his death.

(4) Upon the failure of issue living at the time of his death, a fee simple in the legatees named in the will as remainder-men.

The rule of construction obtaining in this class of cases is well stated by counsel for complainant as follows: “It is the duty of the court to find, and authoritatively to state, the intent of Marvil Shaw; for his intent, when found, is the cardinal point, if lawful, to which all others must direct.” Barnes v. Marshall, 102 Mich. 255. This, intent must be gathered, if possible, from the four corners of the instrument. We think it clear that his intent was to convey an estate to his grandson for his use and benefit during his life, with the fee to the issue of his body, if such were living at' his death, and, if not, then to his sons and daughters and their heirs and assigns. The devise to Lysander and the others did not depend upon the death of complainant under the age of 21 without issue. No such limitation can be placed upon the language of the will. It is explicit that, upon the death of his grandson without issue, the property should go to them. He appointed a trustee to take and hold the property in trust for the benefit of his grandson until he should arrive at majority. He recognized the duty of the father to provide for his maintenance and education, and therefore limited the application.of the income during his minority to certain conditions. What, then, was the estate conveyed ? Upon the answer to this question depend the interests of the parties. Complainant’s counsel seeks to bring the case within section 5532, 2 How. Stat., which is as follows:

“A contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age.”

The difficulty with this position is that complainant’s estate was not a prior remainder in fee. There is no precedent estate upon which to base the prior remainder. The estate conveyed to the grandson was a present, not a future, estate. The will took effect upon the death of the testator, and must be construed as would a deed containing the same provisions. Upon the death of the testator, the grandson, through his trustee, immediately entered into possession of the estate conveyed, which was an estate tail of the simplest kind at the common law. It is therefore governed by sections 5519, 5520, 2 How. Stat., which read as follows:

“All estates tail are abolished, and every estate which would be adjudged a fee tail according to the laws of the territory of Michigan as it existed before the second day of March, one thousand eight hundred and twenty-one, shall, for all purposes, be adjudged a fee simple, and, if no valid remainder be limited thereon, shall be a fee simple absolute.
“When a remainder in fee shall be limited upon any estate which would be adjudged a fee tail according to the law of the territory of Michigan as it existed previous to the time mentioned in the preceding section, such remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession on the death of the first taker without issue living at the time of such death.”

Similar devises have been construed by this court, and have been held to create estates tail, and the remainder limited thereon valid. Goodell v. Hibbard, 32 Mich. 47; Mullreed v. Clark, 110 Mich. 229. Complainant, upon attaining his majority, was therefore entitled to enter upon and enjoy the estate during his life. If upon his death he shall leave issue of his body, the fee goes to such issue; if not, it goes to the other devisees named. See, also, Anderson v. Jackson, 16 Johns. 382 (8 Am. Dec. 330).

2. What interest has complainant in the increase and accretions of the estate ? The will limited the accumulation of the rents and profits of the real estate to complainant’s minority, when it ceased. This was valid, under 2 How. Stat. § 5553. The accretions came from a mixed fund of land and personalty. The accumulation of such a fund was held valid in this court in Toms v. Williams, 41 Mich. 552. It was clearly intended by the testator that these accretions should constitute a fund of which his grandson should receive the income, and that the principal, at complainant’s death, should go in the same direction as the real estate. It follows that this fund must be invested under the order of the court, and the income paid to the complainant.

The decree of the court below is reversed, and decree entered in accordance with this opinion, and the case remanded for further proceedings. Defendants will re-. cover costs.

The other Justices concurred.