text:
    W. Solon Wooliver v. The Boylston Insurance Company.

      Fire insurance — Authority of agent — Pleading—Sunday contract— Evidence.

    1. Where, in a suit upon an insurance policy issued by the local agents of the defendant, the execution of the policy is not denied by the defendant under oath at the time of filing its. plea, the authority of the agents to execute the policy, as well as the fact of its execution, is admitted, and therefore,, though the authority actually conferred was in writing, defendant is not harmed by admission of parol evidence of such authority.
    2. In a suit upon a fire insurance policy, it appeared that the-defendant’s agents and the assured talked over the terms of' the insurance on Sunday, and the agents agreed on that day to write a policy for a certain amount, but no company was-mentioned, or rate agreed upon, or date fixed for the commencement or termination of the policy. A policy for the amount agreed upon was written, dated, delivered, and became-operative on the following Monday, on which day the premium was paid. And it is. held that the policy is not a Sunday contract.
    3. The court instructed the jury that, if the plaintiff fairly disclosed to defendant’s agents the condition of his title, the contract of insurance was valid, but that if he informed them that he owned the property in fee, and hád a clear title to the same, when in fact he had only an executory contract for its purchase, such misrepresentation would vitiate the policy. And it is held that the court, in said instruction, correctly stated the law in this State; citing Crouse v. Insurance Co., 79 Mich. 249; Hall v. Insurance Co., 93 Id. 184.

      ■4. The plaintiff testified that he had paid $50 on the contract of purchase. Testimony on the part of the defendant that the plaintiff, in a conversation had after the fire with the adjuster and the local agents, claimed that he had paid $150 on said • contract, was excluded. And it is held that whether the plaintiff had paid one sum or the other could not affect the rights of the parties, as, under the instruction given, the result would have been the same in either case.
    Error to Alpena. (Kelley, J.)
    Argued January 24, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Joseph H. Cobb, for appellant.

      George B.- Greening (James McNamara, of counsel), for plaintiff.

       See, as to the effect of a failure to deny on oath the execution of a written instrument under Circuit Court Rule No. 79, Union Central Life Insurance Co. v. Howell, 101 Mich. 332, 335, and note.

   Grant, J.

Plaintiff's declaration set forth the issuance ■of a policy of insurance to him by the defendant, and the loss by fire of the property insured. The plea was the general issue, with notice that plaintiff made false representations as to the title to the land upon which the insured property was situated, and that the contract was .made upon Sunday.

Paterson & Small were the local agents of defendant. 'Complaint is made of the ruling of the court permitting -¡diem to testify that they were the defendant's agents, and had authority to write the policy. The defendant, it appears, had stated and claimed that the authority was in writing. The execution of the policy was not denied under oath by the defendant at the time of filing its plea. Its; execution was therefore admitted. This, of course, admitted the authority of the agents to execute it, and no proof of execution was necessary.

Plaintiff lived about five miles from the city of Alpena, where the local agents resided. He applied to them for fire-insurance. They informed him that they would ride out the following Sunday, and look the property over. They did so, talked over the terms of the insurance, and agreed that they would write him a policy of $1,000 upon the-house, and $500 upon his furniture; but no company was-mentioned, ho rate agreed upon, no date fixed for the-commencement or termination of the policy. On the following day (Monday) plaintiff went to their office. The-policy was then made out, the rate agreed upon and paid,, and the policy delivered, dated and to commence on Monday. This was not a Sunday contract. Contracts dated,, executed, and delivered on a week day cannot be defeated’ because the terms were talked over, or even agreed to, upon= Sunday.

No written application was made for the policy,, which was a Michigan standard policy. Plaintiff testified that Paterson & Small asked him if he owned the premises, to which he replied, “No,” — that he had bought the-place on a contract; that he produced the contract, and read to them the description from it. Paterson testified that he asked plaintiff if there was anything against the-property, to which he replied, “No;” that he asked him-if he had a clear title, to which he replied that he had.. The court instructed the jury that, if plaintiff fairly disclosed to the agents the condition of his title, the contract of insurance was valid, but that if he informed them that-he owned the property in fee, and had a clear title to it, when in fact he had only an executory contract for purchase, such misrepresentation would vitiate the policy, and tbe defendant would not be liable. This instruction correctly stated the law in this State. Crouse v. Insurance Co., 79 Mich. 249; Hall v. Insurance Co., 93 Id. 184. The authorities will be found cited in these two cases.

Plaintiff testified that he had paid $50 on the contract. The defendant sought to show that in a conversation with the adjuster and the local agents, after the fire,, he said he had paid $150. This was excluded. We do-not consider it of sufficient importance to justify reversal, even if the testimony were competent. Whether he.had paid $50 or $150 did not affect the rights of the parties. The result would have been the same in either case, under the instruction of the court.

Judgment affirmed.

Long, Montgomery, and Hooker, JJ., concurred.. McGrath, O. J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DeWitt S. Havens v. Nathan Church.

      Principal and agent — Bailment—Trustee—Statute of limitations— Interest.

    1. On the purchase of a farm, it was agreed between the grantor and grantee that a certain portion of the money which the grantee had secured by mortgaging the farm to a third party • should be retained by the agent who made the loan, and be by him used in paying off a prior mortgage when due, or whenever the mortgagee would receive his money. If any surplus remained, it was to be paid to the grantor to apply upon the purchase price of the farm, upon which the remainder of the loan had been applied. Either party had the right to terminate the agreement at any time. The grantee sold the farm, subject to the mortgages, and it was agreed between him and his grantor and the purchaser, and the clerks of the agent, who still held said deposit, he being absent at the time, and said clerks having sole charge of his business, that the arrangement under which the money was originally deposited should continue in force. And it is held that the clerks had authority to make said agreement.
    2. One of said clerks, during the absence of the agent, was induced by a brother of the purchaser, whom he falsely personated, to pay the money to said brother. And, in a suit by the purchaser against the agent to recover the money deposited, it is held that the relation between the agent and said purchaser was not that of bailee and bailor, but one of trustee and cestui que trust, and that the payment of the money by mistake to plaintiff’s brother did not discharge the agent from liability.
    3. The purchaser not being entitled to the money until he had either paid the mortgage or demanded an accounting from the agent, the statute of limitations did not begin to run until the making of such demand.
    4. The land was purchased with funds belonging to the estate of the plaintiff’s father, and, while the title was taken and held in the name of the plaintiff, his brother was entitled to the use of said money, and was therefore entitled to the use and benefit of the farm, which he received. And it is held that interest upon the money sued for should not be allowed to the plaintiff.
    Error to Gratiot. (Daboll, J.)
    Argued January 25, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant brings error.
    Judgment modified.
    The facts are stated in the opinion.

      Camp <& Brooks and George P. Stone, for appellant.

      J. L. Potts and C. W. Perry, for plaintiff.
   Grant, J.

The findings of fact are as follows:

On the 24th day of May, 1880, Albinus Pierce owned certain land in Gratiot county, on which there was a mortgage of about 8350, running to George Holden. On the said 24th day of May he sold the said land to Mrs. Ellen Ackmoody, by warranty deed; the trade being fully completed, and the papers recorded, on the 15th of December, following.
On the said 15th day of December, 1880, Ellen Ackmoody applied to Nathan Church, the defendant in this action, who was at that time conducting a real-estate, abstract, and loan office in Ithaca, to get a loan of $1,350 on her note, secured by a mortgage on said land. Defendant procured a loan for her, taking the mortgage to the Lenawee County Savings Bank of Adrian, for which he was acting as agent in loaning its funds on first mortgage on real estate, and proceeded to pay and get discharged all liens and incumbrances on the said land. Holden, who held the $350 mortgage, refused to take the money on his mortgage, which was not due, having about three years to run. The balance of the money borrowed was to go to Pierce, to apply on the purchase price of the land. The defendant, Church, with Ackmoody’s consent, and to protect his principal, the Lenawee County Savings Bank, against" having a second mortgage, and with the consent of Pierce, to make good his covenants and agreements in the warranty deed given by him to Ackmoody, reserved and kept the sum of $430 from the amount so loaned, with which to pay off and discharge the Holden mortgage as soon as Holden would accept the same. If there was any overplus or balance remaining after paying the same, it was to be returned to Pierce. This money remained in the bank of Church, Bills & Co., at Ithaca, to the credit of the defendant. Either party could terminate this agreement at any time.
“ The matter was allowed to remain in this condition until the 33d day of April, 1881, when the plaintiff, De Witt S. Havens, bought the land in question from Mrs. Ackmoody for the sum of $3,150. De Witt S. Havens is a farmer residing in the state of New York, and purchased the said land for the use of his brother, Alonzo Havens, but took the deed, an'd has since .kept the title to the said land, in his own name.
“On the said 33d day of April, 1881, the plaintiff, De Witt S. Havens, Alonzo Havens, D. D. Ackmoody (acting for his wife, Ellen Ackmoody), and Albinus Pierce met at the office of the defendant, in Ithaca. The title was examined, papers were transferred, and plaintiff paid off the Ackmoody mortgage to the Lenawee County Savings Bank, paying the money to defendant. The Holden mortgage was still unpaid, and the amount that had been reserved to pay the same, as before stated, was still in Church’s hands. And it was then and there agreed that the funds so reserved should remain in defendant’s hands, to pay off the Holden mortgage, whenever the owner of the same would accept the same, or the same become due. Defendant, Church, was not present at this meeting; but his-clerks, James W. Howd and a Mr. Blackmer, were there, and acted’for him, and the business was fully understood by them, they being in charge of the defendant’s business-at the time. A memorandum was then, by one of said clerks, written on the margin of a book in which a record of the Ackmoody loan was kept, as follows:
“‘D. S. Havens has bought this land subject to this mortgage. This money, is to go to said Havens to pay this mortgage, the-same as if Ackmoody owned the land, and the balance is to go to Albinus Pierce.’
“ This memorandum was read and understood and assented to by all parties present. Plaintiff, D. S. Havens, went back to New York.
In the fall of 1882, Alonzo Havens, in company with Albinus Pierce, came to the office of the defendant. Defendant was away, but Mr. Howd, the clerk above-named, was present, and acted for the defendant. Alonzo-Havens represented to the said Howd that he (Havens) was D. S. Havens, the plaintiff, and was entitled to the money so left with the defendant. Howd did not know or did not recognize the said Alonzo Havens, and believed he was D. S. Havens, the plaintiff, but he took no measures to-inform himself as to his identity. , Mr. Pierce was with him, who was known to Mr. Howd; but he did not ask Pierce as to the identity of Alonzo Havens, nor did Pierce introduce him, or say anything about him in any way. Howd computed the amount in defendant’s hands, reserved as before stated, and gave the parties a check for the amount of the same on Church & Bills’ bank, which was-presented to the bank and paid. In this transaction, Howd was governed and controlled by the memorandum of the previous transaction appearing upon the book, and the full belief that the Havens to whom, together with Pierce, he paid the money, was the Havens mentioned in said memorandum, which belief was induced by the representations and conduct of Alonzo Havens and Albinus Pierce.
“ Afterwards, and about September, 1883, Alonzo Havens came to the office of the defendant, in Ithaca, and again represented himself as D. S. Havens, negotiated a loan of the defendant upon the land in question, and, as D. S. Havens, executed a mortgage upon the land; and Howd, as the agent and clerk of the defendant, gave him about $600 upon said mortgage, of which $500 was by draft and about $100 in currency. The draft the defendant after-wards recovered, but the currency he lost. A short time after taking this mortgage, the defendant discovered for the first time that the man who had been personating D. S. Havens was not D. S. Havens. The defendant never had any personal knowledge of any part of the transactions of April 22, 1881, or October 30, 1882, until after the last loan was made, in September, 1883.”

It is first contended that there is no competent testimony on which to base the finding that there was an agreement between the plaintiff and the defendant, through his clerks, that the money in his hands should remain there to pay the Holden mortgage whenever it could be paid. We have examined the testimony, and cannot concur in this view. Plaintiff was interested at the time of his purchase in having this money applied. upon the mortgage according to the agreement which is conceded to have been made with the defendant for such application. The testimony on the part of the plaintiff tends to show that an agreement was then made with Howd and Blackmer, defendant's clerks, that the defendant should keep the money for that purpose, and a memorandum to that effect was made upon, his books. It was deposited under some arrangement, and no other is suggested. It is unnecessary to set out the testimony.

The most doubtful question relates to the authority of the clerks to make this agreement. The situation is this: The defendant had left these clerks in the entire-charge and control of his business, with full power and authority to act and bind him in every matter connected with the business. The defendant was present when the-first arrangement was made, and the money was deposited to his credit in the bank of which he was the principal partner. He had expressly received . it for the particular purpose, viz., to pay the mortgage when due, about three years from that time, or when the mortgagee would receive it. Defendant was legally bound to keep this money, and appropriate it for the purpose for which it was deposited with him, whenever the contingency arose. In this situation he left his business in the hands of his clerks, and they evidently knew the purpose for which their principal received the money. Plaintiff, by his purchase and the arrangement then made, became entitled to the benefit of it, and to have it applied in payment of the mortgage. The depositor had the right to assign it, and this was the effect of the arrangement. Defendant’s liability was neither enlarged nor changed by the agreement. The deposit was left in charge of his clerks, and we think they were authorized to make the arrangement for him.

We do not think that the defendant was a bailee, as the coprt found. A bailment implies a return of the identical thing which is the subject of the bailment. It was not contemplated that the identical moneys should be kept. It was a deposit of money, which the defendant took, and agreed to use in a specified manner. The relation was rather that of principal and agent, or perhaps it is more accurate to say that it was one of trustee and cestui que trust. Shoemaker v. Hinze, 53 Wis. 116; Marsh v. Titus, 3 Hun, 550. In such case, payment to the wrong party cannot operate to excuse the defendant, and discharge him from liability.

The statute of limitations did not begin to run with the deposit of the money. Part of this money was due to the mortgagee, Holden, and part to Pierce. Plaintiff was not entitled to it until he had either paid the mortgage himself, or had demanded an accounting from the defendant. The statute, in such cases, does not begin to run until an accounting is called for. Kimball v. Kimball, 16 Mich. 211.

Plaintiff was the executor of his father’s will, and Alonzo, who defrauded the defendant in both this and the other transaction, for the latter of which he was convicted and sent to prison, was entitled to the use of this money. The farm was purchased with the funds of the estate, and, while the plaintiff took the title in his own name, Alonzo was entitled to the use and benefit of the farm, which he has had. This is admitted by the plaintiff. The action for money had and received is an equitable action, and plaintiff ought not to recover more than his actual loss. We therefore think that the judgment was erroneous, in that it includes interest.

The judgment will therefore be reversed, and judgment entered in this Court for $430, with costs to the defendant.

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


author: Long, J.

text:
    William H. Allison v. Edward D. Kinne, Circuit Judge of Washtenaw County.

      Bills and notes — Joint maker — Suits against joint defendants residing in several counties — Service of process.

    1. Where a third person not the payee indorses a note prior to its delivery, and before any advances are made thereon, his liability to the person who advances the money is that of a joint maker; citing Rothschild v. Grix, 31 Mich. 150; Herbage v. McEntee, 40 Id. 337; Fay & Co. v. Jenks & Co., 78 Id. 312.
    2. On its face, such a note imports that, for the purpose of adding to its credit, the indorser at its inception gave his name as promisor of payment, and made himself liable as a joint maker, and, in the absence of controlling facts, the transaction stands as its own interpreter; citing Herbage v. McEnteer 40 Mich. 337.
    3. Such a case falls within How. Stat. § 7316, which provides that when an action on any contract is brought in the circuit court against two or more joint defendants who are original parties thereto, and not merely indorsers or- guarantors, one or more of which defendants do not reside or are not found in the county where suit is brought, and service of process is had on one or more of the - defendants in said county, or property in his or their possession is attached in said county, the plaintiff may sue out one or more writs of summons, dr other writ whereby such suit was commenced, directed to the sheriff of the county where such unserved defendants may be found, for service upon them, or he may cause a copy of the declaration filed in such cause, with notice of the rule to plead, to be served on such unserved defendants in any other county in this State.

    4. The statute requires that, as a condition precedent to the service in another county of said writ or declaration, proof of the service of the original writ or of said declaration upon one or more of the defendants in the home county shall be filed in the suit, and the absence of such proof is not cured by a return afterwards made showing actual prior service in the home county.

      Mandamus.

    Argued January 29, 1895.
    Granted February 12, 1895.
    Eelator applied for mandamus to compel respondent to ■quasb the service upon him of a declaration. The facts are stated in the opinion.

      Franlc E. Jones, for relator.

      Lawrence & Butterfield, for respondent.

       SUITS AGAINST JOINT DEFENDANTS RESIDING IN SEVERAL COUNTIES.
      For cases bearing upon the proper construction of and practice ■under How. Stat. § 7816, see:
      1. Hosie v. Circuit Judge, 22 Mich. 493, where prior to the amendment of 1873, which excepts from the operation of the statute indorsers or guarantors of the contract or obligation sued upon, suit was commenced against the maker and indorsers of a promissory note in the county where the indorsers resided, and, after the declaration had been served upon them in that county, it was served upon the maker in. another county, where he resided, which service was sustained, the Court holding that all persons authorized by law to be joined as defendants were “joint defendants-” within the meaning of the statute.

        2. Denison v. Smith, 33 Mich. 155, and Clark v. Lichtenberg, Id. 307, holding the doctrine set forth in the fourth head-note.
      3. Burt v. Circuit Judge, 85 Mich. 228, holding that the statute does not authorize the issuance of a scire facias to other counties than that in which the court sits.
      4. Jacobson v. Circuit Judge, 76 Mich. 234, questioning the Tight of non-residents of the State to sue a defendant, in an action ■of tort for combining with plaintiff’s debtor to secrete and dispose of his property in fraud of the creditor’s rights, in any but defendant’s home county, notwithstanding the joinder as a co-defendant of a resident of the county where suit is brought; and holding it oppressive to resort .to such proceedings without some good reason, and that the service cannot be upheld, if unfair and in fraud of any legal privilege.
      5. Baxter v. Circuit Judge, 92 Mich. 291, holding that a return to a writ of attachment issued against two defendants, upon neither of whom personal service has been had, which fails to show that the property attached in the county where the suit was commenced was in the possession of or belonged to either of the defendants, will not authorize the issuance of a writ to the sheriff of another county under said statute.

   Long, J.

On October 31, 1894, Comstock F. Hill commenced suit in the Washtenaw circuit court by filing ■declaration and entering rule to plead. The action was in .assumpsit against John D. Allison, Jacob Bentler, and William H. Allison, jointly, on a promissory note made March 30, 1892, by John D. Allison and Jacob Bentler to James D. Allison or bearer, for $320, and payable at •the residence of O. F. Hill, in Lodi. It was indorsed by the name of W. H. Allison, and a payment of $100 was also indorsed thereon. Defendants John D. Allison and Jacob Bentler reside in Washtenaw county, while the defendant the relator here resides in Wayne county. Copies <of the declaration, with notice of rule to plead, were served upon the defendants John D. Allison and Jacob Bentler in Washtenaw county on November 5, 1894, by a deputy sheriff of that county, and upon William H. Allison in Wayne county on November 9, 1894, by a deputy sheriff <of that county. The return of service on each defendant was filed in the office of the clerk of the Washtenaw circuit court on November 21, 1894. November 30 the-relator appeared specially by his attorney, and moved the court to quash the service upon him for the reason that, such service was illegal and void:

1. That relator was not an original party to the note, but an indorser thereon.
2. That no return was made by the officer showing service upon one or more of the defendants within the county of Washtenaw before service was made upon relator in the county of Wayne.

This motion was denied. Eelator now asks the writ of mandamus to require the respondent to grant said motion, and to quash the service upon him of the declaration. How. Stat. § 7316, provides—

That when an action on any contract or obligation, or-an action of ejectment, or an action for trespass on lands,, or an action of trespass on the case for injuries to real estate, shall have been or shall be brought in any circuit-court of this State against two or more joint defendants,, one or more of whom shall not reside or be found in the; county where the suit shall be brought, and one or more-of the defendants shall be served with process or declaration in the county where suit is commenced, or property-in his or their possession shall be attached in said county,, the plaintiff in such action may sue out one or more writs, of summons, or other writ whereby such suit was commenced, directed to the sheriff of the county where-such defendants not so served may be found, or where the-property liable to be attached may be, or he may cause a-copy of the declaration filed in such cause, with notice of' the rule to plead, to be served on the defendants not elsewhere served in any other county in this State; and it-shall be the duty of such sheriff to serve such process or declaration or notice, and make return thereof to the-county clerk of the county where the suit is commenced: Provided, that in any such action on any contract or obligation such joint defendants are original parties to such contract or obligation, and not made parties thereto by being indorsers or guarantors of such contract or obligation.”

It is contended - by respondent that the relator was a joint maker of the note sued upon, and not an indorser, as the note was made by John D. Allison and Jacob Ben tier to James D. Allison, and indorsed by William H.Allison before being put in circulation; that at least, from an inspection of the note, it does not appear that the relator was a mere indorser.

It is settled that where a third person not the payee indorses a note before it is delivered, and before any advances are made upon it, his liability to the person who advances the money is that of an original promisor and joint maker. Herbage v. McEntee, 40 Mich. 337; Rothschild v. Grix, 31 Id. 150; Fay & Co. v. Jenks & Co., 78 Id. 312. It is contended by relator, however, that there can arise no presumption that he was a joint maker, but that the presumption must be that he was an indorser merely. He was not named as payee in the note, but his name appears upon it. This was not necessary to give it circulation or to pass title. As was said in Herbage v. McEntee, supra:

On its face, the paper now in question imported that, for the purpose of adding to its credit, the defendant at its inception gave his name as promisor of payment, and made himself liable in character of. maker. * * * In the absence of controlling facts, the transaction stands as its own interpreter.”

The case falls within the provisions of the statute above quoted, and service could be had upon the relator outside of Washtenaw county, after service upon one of the joint makers within that county.

It is next contended that there should have been proof of service on file in the clerk's office upon one or more of the joint makers within that county before service could be had upon the relator in Wayne county. By the express terms of the statute, one of the joint parties must be served ip the county where the suit is commenced, before the process can be served upon the other in another county. In Denison v. Smith, 33 Mich. 155, 158, Mr. Justice Campbell, speaking of this section, said:

“That section expressly contemplates a service at home on one or more defendants, before the plaintiff can sue out further process or deliver a declaration to be served beyond the county on the rest, and, in the case of process, it evidently requires a return of fNot found’ as a preliminary. The language, though not precise, contemplates some evidence of service on one as a foundation for a further writ, and the same provision allows the plaintiff to have his declaration and notice of rule to plead, which are a substitute for process, f served on the defendants elsewhere served in any other county in this State.’ It was never intended that an absent defendant should be pursued until service was made and proved on the other within the jurisdiction. That is a condition precedent. A defendant has a right to know from the record whether he is subject to the jurisdiction; and, where it depends on a previous service on some one else, that can only be shown by the return of service or by appearance.”

We think the above case must rule the present one. The rule is expressly stated that proof of service must be made before service can be had in another county. This rule was followed in Clark v. Lichtenberg, 33 Mich. 307. There was no proof of service on the defendants in Washtenaw county on file when the declaration was served on relator in Wayne county. The statute contemplates this as a condition precedent to service being made out of the county on another defendant. It was not cured by a return afterwards made showing actual service in Washtenaw county before the relator was served. This same section makes it lawful to serve writs of summons or other writs in the same manner, and in such ease the process must be returned with service indorsed before a second process can be sued out. Evidence must exist in the clerk’s office qf the due personal service in the county where the suit is •commenced before any other party can be served in another •county. This was not shown in the present proceeding.

The writ must be granted as prayed.

The other Justices concurred.


author: McGrath, C. J.

text:
    Thomas G. B. Ablard v. The Fort Wayne & Belle Isle Railway Company.

      Vicious animals — Evidence—Admissions of employé — lies gestae.

    In a suit to recover for injuries received by being kicked by a bay mare belonging to the defendant, while plaintiff was inspecting her with a view to her purchase, evidence on the part of the plaintiff that an employé of the defendant, who had charge of the barn in which the injury was received, testified on the trial of the case in justice’s court that there was a bay mare in the barn at the time that was a kicker, is inadmissible.
    Error to Wayne. (Hosmer, J.)
    Argued January 31, 1895.
    Decided February 12, 1895.
    Case. Defendant brings error.
    Reversed.
    The facts .are stated in the opinion.

      Edwin F. Conely and Orla B. Taylor, for appellant.

      Oliarles Flowers, for plaintiff.
   McGrath, C. J.

The defendant company was exhibiting for sale at its stables a lot of horses. Plaintiff, while .at the stables with a friend, who desired to buy a horse, was kicked by one of the horses, and seeks to recover for the injury.

He testified that the bay mare that kicked him was tied to the south side of the barn; that he walked over to-where she was tied, laid his hand on .her rump, whereupon she-kicked him; that there were a lot of men standing around there, and a larged-sized, well-dressed man caught him. as-he went down, and said, “I was just going to tell you that that was a kicking mare.” No effort was made to-identify the person who is _ alleged to have made this statement, or to connect him with the company or its service.

Plaintiff testified further, under objection, as follows:

“In justice’s court I heard the man that had charge of the barn testify about a horse being there, a kicker. He described that they had a bay mare there that was a kicker, and that she was placed in this place with the rest of the horses. Mr. Walters is the man that testified as I claim; the man with the heavy mustache, sitting there.”

This testimony was clearly inadmissible. It was not an attempt to show by the employé his knowledge of the vicious character of the horse, but his admission, not a. part of the res gestae. Horner v. Fellows, 1 Doug. 51; Converse v. Blumrich, 14 Mich. 122; Patterson v. Railway Co., 54 Id. 92; O’Neil v. Township of Deerfield, 86 Id-610.

The judgment is reversed, and a new trial ordered.

Grant, Montgomery, and Hooker,. JJ., concurred-Long, J., did not sit.


text:
    Mary Neville, Administratrix, etc., v. The Detroit Firemen’s Fund Association.

      Mutual benefit associations — Action upon membership contract— Construction of by-laws — Organization of firemen — Retired members of department.

    1. Where the person designated by a member of a benefit association, pursuant to its by-laws, to receive the death-benefit, for the use of the wife and children of the member, declines to act, suit to recover the death benefit is properly brought by the administrator of the estate of the deceased member.
    '2. Where a mutual benefit association disclaims all liability upon a membership contract which provides for the payment of the proceeds of a single assessment upon its members, suit is properly instituted to test that question; citing Burland v. Association, 47 Mich. 424; Bates v. Association, 47 Id. 646; Silvers v. Association, 94 Id. 39.
    •3. The by-laws of a firemen’s benefit association provided that any member who should be retired by the fire commissioners by reason of 25 years' service as a fireman might still continue a member of the association, with all of its rights and benefits, by paying the same dues and assessments as an active member, and that upon the death of any active or retired member, there should be collected from each surviving active or retired member a specified amount for the use of the beneficiary. And it is held that the placing of a member upon .the retired list before the expiration of 25 years’ service, by reason of injuries received in the line of his duty as a fireman incapac- ' itating him for active service, does not terminate his membership in the association.
    Error to Wayne. (Frazer, J.)
    Submitted on briefs February 1, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      John J. Speed, for appellant.

      Charles Flowers and John E. Moloney, for plaintiff.
   Grant, J.

The defendant is organized under chapter 165, How. Stat. Its object is to afford relief to sick and disabled members, and to the families of deceased members. All able-bodied and uniformed members of the fire-department may become members. Section 2 of article 2 of its by-laws provides that any member retired by the fire-commissioners by reason of 25 years’ service as a fireman may still continue a member thereof, with all its rights, and benefits, by paying the same dues and assessments as. an active member. ■ Section 3 of article 3 provides that-members leaving the fire department may still continue-honorary members. By section 3 of article 8, it is provided that, upon the death of any active or retired member of the association, there shall be collected from each surviving active or retired member thereof the sum of $5,. to be paid on or before the second pay-day after the death of the said member. By section 4 of the same article, it. is provided that upon the death of any active or retired member there shall be paid, within 90 days, to the person or persons (to be designated by said member) named in-the instrument on file in the office of the secretary, the entire amount collected under section 3.

Mr. Neville, plaintiff’s husband, became a uniformed member of the fire department of Detroit, June 18, 1887, and on the 26th day of the following September became-an active member of the defendant association. About two-years before his death he received an injury at a fire, in. consequence of which he died April 19, 1893. He was. unable to do any duty after the injury, but was continued upon the list of active members of the department until February 24, 1893, at which date he was placed -by the-board of fire commissioners upon the pension and retired list, and, under the rules of the department, was entitled to receive a pension of 1400 per annum, to commence February 13. He had always paid his dues and assessments;' the last payment of dues being in January, 1893, for three months, in advance. On March 10, 1893, the-secretary of the association made a report of <he members, who had joined and the members who had left. In this report was the following: “February 15, M. J. Nevilleplaced on the pension list.” This report was accepted. No other action was taken by the association in the-matter. The officers of the defendant appear to have construed the action of the fire department, in placing Mr. Neville upon the pension and retired list, as a severance of connection with it. The treasurer thereupon sent him a warrant for 50 cents, — the amount of his overpaid dues. After his retirement he paid an assessment of $5 for the death of a deceased member. The number of active members at the time of his death was 235. Mr. Neville filed! a paper with the secretary, directing that the fund to-which he was entitled should be paid to “John O’Neil, as administrator, for the support of my wife and children, to be drawn subject to the approval of said administrator.”' Mr. O’Neil declined to act, whereupon the plaintiff was. duly appointed administratrix, and, upon the refusal of the defendant to pay, instituted this suit. The court directed a verdict for the plaintiff for $1,175.

Mr. O’Neil having declined to act, the proper party to bring the suit was the duly-appointed administratrix of the estate. Mr. O’Neil had no interest in the fund, but was appointed as trustee to receive it for the benefit of the wife and children of Mr. Neville. The right of recovery cannot be defeated by the refusal of the trustee to act. Nor was it necessary that the suit should have been brought in his name. The defendant cannot be held liable in a second suit brought by him.

The defendant disclaimed liability. This suit was therefore properly instituted to test the liability of the company. Burland v. Association, 47 Mich. 424; Bates v. Association, 47 Id. 646; Silvers v. Association, 94 Id. 39.

The important question, and the one most seriously urged, is, was the defendant liable at all? The defendant argues that the placing of Mr. Neville upon the pension and retired list by the fire department, ipso facto, terminated his membership with the defendant, and that the only members at whose deaths the association is liable for the $5 assessment are active members and those who have been retired after 25 years’ service. Such a construction of the articles and by-laws would be very harsh and unjust, and, in order to sustain it, we must find that there is no other reasonable construction. ■ The business of a fireman is dangerous, and the- evident purpose of the defendant association is to furnish relief to those who are disabled in the performance of their duty, and to the families of those who die in consequence of injuries received. When one receives an injury his right to relief becomes vested, and upon his death hi3 wife and children become entitled to the death benefit for which he, in his lifetime, contracted. Poultney v. Bachman, 62 How. Pr. 466. Under the defendant’s construction, one who has been an active member for 24 years, and has then been injured, disabling him from duty, after having paid his dues and assessments for that time, may have his wife and children deprived of all benefits by the action of the fire department in retiring the member. The fireman may die the next day after such retirement, and his family be left without any benefit of his 24 years’ membership, one of the chief purposes of which was to provide for them at his death. Such a construction seems unreasonable, and we cannot give it our assent. We think that Mr. Neville was still a member of the association, although placed upon the retired and pension list.

The judgment must be affirmed.

The other Justices concurred.


text:
    Amelia Lillibridge v. William P. Walsh.
    [See 97 Mich. 459.]

      Exemptions — Execution for purchase price — Fraudulent conveyances — Notice.
    1. Property otherwise exempt from execution, but subject thereto under 3 How. Stat. § 7716, for the purchase price, may be seized in the hands of third persons where its transfer to them was made for the purpose of defeating said statutory right of the vendor, although the notice provided for in the statute was not filed prior to said transfer.
    2. The statute does not create a lien upon the property, but applies to the remedy merely; and there is no force in the contention that, in the absence of fraud, the vendee is bound by actual notice.
    Error to Kent. (Adsit, J.)
    Submitted on briefs February 1, 1895.
    Decided February 12, 1895.
    Replevin. Defendant brings error.
    Reversed.
    Tbe facts are stated in the opinion, and in 97 Mich. 459.

      Frank A. Rodgers, for appellant.

      Wolcott & Ward, for plaintiff.
   McGrath, C. J.

When this case was here before, in 97 Mich. 459, it was expressly held that property otherwise exempt from execution, but subject, under the statute, to execution for the purchase price, might be seized in the hands of third persons, where the transfer was not bona fide, but was made for the purpose of defeating the statutory right of the vendor, and this, although the notice provided for in the statute had not been filed prior to the transfer; in other words, that the notice was necessary to preserve the vendor’s rights against bona fide purchasers, and not as against fraudulent transfers. Upon the last trial the court instructed the jury that—

“If you find that the bill of sale was given to the plaintiff by Thomas Lillibridge with the intent on the part of both Thomas and the plaintiff to defraud, delay, or hinder Chauncey Lillibridge in his collection of his debt then in judgment before the justice, then the sale would be void; and if the note was given for the purchase of these horses, then your verdict should be for the defendant: Provided you find the notice was filed in the town clerk’s office prior to the delivery of the bill of sale.”'

Again the court said:

“If you shall find that Thomas reserved any interest or benefit to himself, and intended to hinder, delay, or defraud Chauncey in the collection of his debt, and the plaintiff took the -bill of sale to assist him, and not have this property applied to payment of this debt, the transfer would .be fraudulent and void: Provided, as before, you find the notice was filed in the town clerk’s office prior to the delivery of the bill of sale.”

It is true that elsewhere in the charge substantially the same instructions occur without the proviso, but the instruction here given is unambiguous. There is no doubt as to its meaning, and we are not t prepared to say that the jury did not attach this proviso to the instructions elsewhere given.

There is no force in the contention that, in the absence of fraud, plaintiff was bound by actual no'tice. The statute does not create a lien upon the property, but applies to the remedy merely.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    George Willson v. Sherman B. Daboll, Circuit Judge of Gratiot County.

      Adultery — Complaint.
    Under How. Stat. § 9379, which provides that no prosecution for adultery shall be commenced but on the complaint of the husband or wife, a married man is subject to prosecution upon the complaint of the husband of the woman with whom he-commits adultery; citing People v. Davis, 53 Mich. 569.

      Mandamus.

    Submitted February 9, 1895.
    Order to show cause denied February 12, 1895.
    Belator applied for mandamus to compel respondent to-quash an information against him for adultery. The facts.' are stated in the opinion.

      George P. Stone, for relator.
   Per Curiam.

This is an application for an order to. show cause why a writ of mandamus should not issue to-compel the vacation of an order denying a motion to quash, the information filed against relator charging him with* adultery. The complaint by which the prosecution was. instituted was made by the husband of the alleged paramour of the respondent (the relator in this proceeding). The relator contends that he, being a married man, was-subject to prosecution only on complaint made by his wife.

The statute (How. Stat. § 9279) provides that no prosecution for adultery shall be commenced but on the complaint *of the husband or wife. This statute has been construed to authorize proceedings on the complaint of the-aggrieved husband or wife, and it has been held that, where the respondent is a married man, he cannot insist-that the complaint can only be made by his wife. The precise question was decided in People v. Davis, 52 Mich. 569.

Application denied.


text:
    Howard B. Latourette v. Charles McKeon.

      Witnesses — Matters equally within knowledge of decedent — Gift— Consideration.

    1. On the trial of a suit upon a note assigned to the plaintiff by a daughter of the payee after his death, the daughter, who was a sister of the defendant, was permitted to testify that her father during his last illness gave her the note. And it is held that her testimony was not incompetent under 3 How. Stat. § 7545, which prohibits the “opposite party,” including “the assignors or assignees of the claim,” in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, from testifying at all to matters which, if true, must have been equally within the knowledge of the decedent.

    2. The fact that the donee of the note was a daughter of the donor, and the circumstances under which the note was given to her, supported the transfer, and it was unnecessary to show a further consideration.
    Error to Livingston. (Person, J.)
    Argued January 31, 1895.
    Decided February 12, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Tinker & Frackelton, for appellant.

      Luke 8. Montague, for plaintiff.

       See note at end of opinion.

        EVIDENCE OF MATTERS EQUALLY WITHIN THE KNOWLEDGE OP A DECEASED PERSON.
      The following note summarizes the legislation, and collects the •cases, bearing upon the subject suggested in the above heading:

        Summary of Legislation.

      1. Act No. 125, Laws of 1861, taking effect March 11, 1861, which made the parties to suits competent witnesses, provided “that, when a suit or proceeding is prosecuted or defended by the representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been •equally within the knowledge of such deceased person.”
      2. Act No. 188, Laws of 1863, taking effect June 22, 1863, added to the act of 1861 the provision that, when any suit or proceeding should be prosecuted or defended by any surviving partner or partners, the opposite party, if examined as a witness in his own behalf, should not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of the deceased partner, and not within the knowledge of any one of the surviving partners.
      3. Act No. 155, Laws of 1875, taking effect August 3, 1875, amended the statute by providing that, when a suit or proceeding should be prosecuted or defended by the heirs, assigns, devisees, legatees, or personal- representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, should not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person; and left the portion of the statute relating to suits prosecuted or defended by a surviving partner unchanged.

        4. Act No. 245, Laws of 1881, taking effect June 10, 1881, added to the statute the provision that, “ when any suit or proceeding is prosecuted or defended by any corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent of the corporation; nor, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation, shall any officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased "person.”
      5. Act No. 139, Laws of 1885, taking effect September 19, 1885, amended the latter clause of the 1881 act so as to make it readr “Nor, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, shall any person who is or has been an officer or agent of any such corporation be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person;” and added the proviso “that, whenever the words ‘the opposite party ’ occur in this section, it shall be deemed to include the assignors or assignees of the claim, or any part thereof, in-controversy.”
      6. Act No. 121, Laws of 1895, taking effect August 30, 1895, added the further proviso “ that whenever the deposition, affidavit, or testimony of such deceased party, taken in his lifetime, shall be read in evidence in such suit or proceeding, the affidavit or testimony of the surviving party shall be admitted in his own behalf on all matters mentioned or covered in such deposition,, affidavit, or testimony.”

        General Buies Applicable to the Subject.

      For cases construing the statute generally, see:
      1. Kimball v. Kimball, 16 Mich. 211, holding:
      a — That the word “equally,” as employed in the statute, does not relate to the degree of knowledge possessed by the parties, but is used in the sense of alike, to preclude the party’s evidence where the facts to which he is called were known to both.
      b — That the witness is not to be the judge for himself of the competency of his evidence, but the court must decide upon it; that there will be many cases where it cannot be known, until the testimony is given, whether the facts testified to were within the knowledge of the deceased or not; but wherever, from the nature of the case, he must have known about them, the opposite party should not be allowed to put his own account of the whole transaction before the jury, on the pretense of giving evidence upon some branch of it of which the deceased had no knowledge.
      2. Wright v. Wilson, 17 Mich. 102, holding that the principal object of the statute is to prevent a living party from obtaining an unequal advantage, from his own testimony, upon matters known only to himself and the deceased, or better known to them than to others; that whether the prohibition was intended to go beyond this in any case, or to apply to facts which in their nature (as, for instance, the actual possession of land by a decedent in his lifetime) must be open and notorious and easy of proof from any* source, quaere. And see Chambers v. Hill, 34 Mich. 523, 526, where the case last cited is referred to as having decided “that the statute would not preclude the surviving party testifying to matters of public notoriety, such as the occupation of land, notwithstanding the deceased party might have been equally cognizant of the same facts.”
      3. Jones v. Beeson, 36 Mich. 214, holding that questions, in order to be objectionable, must be distinctly aimed at such matters as appear affirmatively to have been within the knowledge of the deceased; that, in cases of doubt, on objection being made, the party asking the question may be required so to limit it as to-avoid the difficulty.
      4. Ward v. Ward, 37 Mich. 253, 259, holding that where two constructions, equally probable, may be placed upon the record, the Court are not inclined to adopt the construction which makes the admission of evidence error under the statute.
      5. Howard v. Patrick, 43 Mich. 121, 124, holding that, in order to authorize the exclusion of testimony as incompetent under the statute, it must — being an exception to the general rules of competency — be brought fairly within the statute.
      6. Foster v. Hill, 55 Mich. 540, 546, holding that, on the hearing of a chancery appeal, all testimony appearing in the record which is inhibited by the statute, if objected to on that ground by either party, is excluded from the consideration of the Court.

        7. Brown v. Bell, 58 Mich. 58, 61, holding that the object of the statute is to prevent fraud and false swearing, whereby estates become unjustly depleted, in cases where no person on the part of the estate, except the deceased, has any knowledge of the facts necessary to sustain the claim in favor of the estate, or to make, good the defense of the estate when unjust claims are attempted to be enforced against it; that it is limited to contests or litigation upon claims between other persons and the deceased, existing prior to his death, — to such suits and proceedings as the deceased would have been, if living, a necessary party to, and which his ■heirs, devisees, and legatees, personal representatives or assigns, since his death, are compelled to. prosecute or defend for him in his place.
      8. Taylor v. Bunker, 68 Mich. 258, holding that the fact that third persons were present when a conversation occurred between the plaintiff, in a suit prosecuted against the administrator of the estate of the deceased, and the deceased, does not render the plaintiff competent to testify to such conversation.
      9. Barker v. Hebbard, 81 Mich. 267, holding that the question of the competency of the testimony of a party to matters equally “within the knowledge of a deceased party is presented to the court for its determination when the death of the party is proven.
      10. Ripley v. Seligman, 88 Mich. 177, holding:
      a — That the word “assigns” is used in its legal sense, and signifies a person to whom any property or right is transferred by a deceased person in his lifetime.
      b — That the statute is broad enough to cover successive transfers, or where the controversy depends upon the acts or dealings with the property of the deceased in his lifetime; and any one who is called upon to prosecute or defend some interest which is affected by the act or agreement of the deceased party through whom he claims may invoke its protection.
      c — That, in applying the statute, care should be observed in distinguishing between matters equally within the knowledge of the deceased and matters within his information, as it is only as to the former that the opposite party is not permitted to testify.
      d — That the statute was not intended to exclude testimony concerning facts capable of proof by documentary evidence accessible to both parties, as, for instance, the dates or contents of written instruments of a public character, where such testimony is not •excluded under other rules governing the admission of testimony.

        Illustrative Gases.

      For cases applying the statute, or some portion of it, to a given ■state of facts, see:
      1. Campau v. Van Dyke, 15 Mich. 371 (decided May 14, 1867), where the purchaser of lands covered by a trust deed filed a bill -against the trustee and all of the beneficiaries, some of whom were minors, to set aside the deed, and a decree was made granting the relief sought. About six years after the death of the pur■chaser, and more than six years after attaining his majority, one •of the beneficiaries, who was an infant when the decree was made, filed a bill to impeach the decree on the ground that it was obtained by fraud and collusion between the purchaser and the •trustee. On the hearing, the beneficiary sought to excuse his delay •in filing his bill by testifying to some vague verbal assurances of -the purchaser that he would do right by the witness. And it was held that the testimony was incompetent under the statute.
      2. Kimball v. Kimball, 16 Mich. 211 (decided November 2, 1867), where a son filed a claim against his father’s estate, consisting mainly of charges for meats which the son claimed to have sold ■to his father. The son was permitted to testify that the claim was correct, as he believed, and, in order to save it from the •operation of the statute of limitations, was allowed to testify to credits in favor of the decedent; the trial judge holding that unless, from the nature of the transaction and circumstances of the case, the matters sought to be established must have been equally within the knowledge of the deceased, the claimant was not precluded by the statute from testifying in his own behalf in relation thereto, and that it was competent to show by him whether or-not said matters were equally within the knowledge ■of the deceased and himself. And it was held that the court erred in admitting the testimony; that the claimant might have been -entitled to testify to the value of such articles as he claimed to have delivered to the decedent, it not appearing that any price was agreed upon, but this would not warrant him in testifying •fo facts establishing the sale and delivery, since the deceased, who was the purchaser in person, must be presumed to have had full knowledge of such facts.
      3. Wright v. Wilson, 17 Mich. 192 (decided July 13, 1868), where, -after the commencement of an action of ejectment against a husr band and wife, the wife died, and the suit proceeded against the husband in his own right and as administrator of his wife’s estate. On the trial the plaintiff was allowed to testify that the husband .and wife went into possession of the land at a certain date, and had thereafter continued therein. And it was held, that as the husband was still living and defending in his own right, as well as that of his wife, the testimony was competent.
      4. Moulton v. Mason, 21 Mich. 864 (decided October 5, 1870),. where suit was brought by an administratrix to recover the value of goods sold to the defendant by the decedent. Plaintiff, after introducing evidence tending to show the sale and delivery of the goods, and that the defendant and decedent made an inventory thereof, which was copied by the defendant into a book and taken into his possession, gave further proof to the effect that the decedent, three or four weeks before his death, obtained said book from the defendant, and, after making or causing to be made for himself a copy of the inventory, returned the book to defendant. On the failure of the defendant to produce the original inventory, an alleged copy was offered and received in evidence. The defendant-offered to prove by his own testimony that the paper produced was not a copy of said inventory, or of an inventory of any goods ever purchased by him of the decedent, or of any inventory ever made by him, or of one which he assisted in making. The testimony was excluded as incompetent under the statute. And it was-held that it is questionable whether the statute has any reference to written documents; but when, as in the case under consideration, the representative of the deceased has the means of proving the existence and contents of the document, and takes it upon herself to do so by independent evidence, the case is not within the mischief of the law, and is not covered by it.
      5. Cook v. Stevenson, 30 Mich. 242 (decided October 7, 1874),. where, in a suit by an administratrix upon a verbal contract for-the sale by the decedent to the defendant of a stock of goods, the-defendant sought to show by bis own testimony that the contract-made with the decedent differed from the one set up in the-declaration, and from a written statement of it which the defendant had given to the plaintiff. And it was held that the proposed testimony was within the prohibition of the statute, it not appearing that the facts sought to be shown could have been known to-any one besides the decedent and the defendant.
      6. Wheeler v. Arnold, 30 Mich. 304 (decided October 13, 1874), where a surviving partner filed a claim against the estate of the-deceased partner for moneys advanced by him, after the dissolution of the firm, in excess of his share of its debts. All of the-partnership transactions took place during the lifetime of the-deceased partner. Most of the facts sought to be introduced by the testimony of the claimant related to what was done in the-absence of the decedent, including the forwarding or removal of property destined for his use, he being in another state, and the evidence being confined to transactions in Michigan and on the-way between the two states. Some of the testimony referred to-"the value of the property and transportation. And it was held "that these matters could not, for the most part, have been known to the decedent; that his only information must have been hearsay; and that the statute does not apply to such facts.
      7. Mundy v. Foster, 31 Mich. 313 (decided February 36,1875), where a bill was filed by a husband to set aside a trust deed of certain lots executed by his wife, which property he had caused to be -conveyed to her upon her verbal agreement, made privately with him, that she would devise to him all of her estate. The will was ■executed, and destroyed by the wife, and the deed sought to be :set aside executed, by which a different disposition was made of her estate. And it was held that, when the husband assumed to ■testify to said verbal agreement, his position, if not literally within the terms of the statute, was clearly within its policy, and he was not a proper witness by whom to prove the making of said agreement.
      8. Twiss v. George, 33 Mich. 253 (decided January 11, 1876), where •a stepson filed a bill to set aside a deed executed to the defendant by complainant’s stepfather in fraud of complainant’s rights under, a verbal agreement, performed on his part, made with his stepfather, that if the complainant would work the stepfather’s farm, and care for the family, the stepfather would convey to complainant the land in dispute. And it was held that the testimony of the stepson, taken after the death of his stepfather, as to the making of said agreement, was not incompetent under the statute, which did not apply to controversies with third persons acting in their own right as purchasers during the lifetime of the deceased. And see Ripley v. Seligman, 88 Mich. 177 (decided October 30, 1891), holding that the Twiss case arose before the 1875 amendment, and cannot be taken as an exposition of the statute as amended.
      9. Chambers v. Hill. 34 Mich. 523 (decided October 13, 1876), where an administrator sued a son of the decedent for the conversion of certain personal property which he claimed belonged to the estate, but which the son claimed title to under a parol agreement made with his father and mother about a year before his father’s death, by the terms of which the son was to remain on the home farm and manage affairs, and support his father and mother during their lives, in consideration that what there was of the property should belong to the son (30 Mich. 439), which agreement the son claimed to have fully performed. Evidence having been given on the part of the plaintiff that the defendant at one time, shortly before his father’s death, talked with his parents about leaving the farm and going south, assigning as a reason .that the family was too large, and was told by his father to go if he wanted to, the defendant was sworn in his own behalf, and asked if he made any such statements, which question was excluded by the trial court as calling for incompetent • testimony under the statute. And, in sustaining said ruling, it was held that, although the alleged conversation might have been heard by third parties, yet, as it took place between the defendant and his father as the parties concerned, and related to their business, it was reasonable to assume that-the facts concerning it were better known to them than they were to others.
      10. Schratz v. Schratz, 35 Mich. 485 (decided January 19, 1877), where, in support of a claim filed against the estate of a deceased person, the claimant testified that certain expenditures charged against the estate were fully explained to the deceased by letter, and that his replies showed that he fully understood what was being done. And it was held- that the letters, if they could have been produced, would have been admissible, but their loss or destruction would not change the rule, and permit the witness to testify to their contents, such evidence being clearly within tho letter and spirit of the statute.
      11. Hart v. Carpenter, 36 Mich. 403 (decided April 24, 1877), where in a foreclosure suit, based upon a purchase-money mortgage, the mortgagor set up as a defense the existence of paramount outstanding titles to a jDortion of the land. The mortgagor was allowed to give evidence tending to show admissions by the mortgagee, since deceased, of the defects in the title conveyed, and of his consent that a certain sum of money, which the mortgagor had paid to an adverse claimant, should be accounted for on the mortgage. And it was held that the evidence was inadmissible under the statute.
      12. Harmon v. Dart, 37 Mich. 53 (decided June 12, 1877), where-an administratrix sued the surviving member of a firm of lawyers for money collected by the firm, after the death of the decedent, upon certain securities which he had left with the firm for collection. To substantiate the defense that, when the securities were-left, it was verbally agreed between the deceased and the firm that, as their compensation, they should retain one-half of the-amount collected, the defendant was allowed to testify to such-alleged verbal agreement. And it was held that the existence of this agreement was indispensable to the claim of the defendant, and, the case indicating that the matter relied on to-make it out was not known to any third party, the testimony was-inadmissible under the statute.
      13. Ward v. Ward, 37 Mich. 253 (decided October 2, 1877), where a sister filed a claim against the estate of her deceased brother for the proceeds realized by him from the sale of a mortgage which he had assigned to her, and which she, at his request, preferred by his bookkeeper in the presence of others, but in the absence of her brother, had assigned to a bank to which her brother had transferred the mortgage as collateral security. It was contended that claimant had received no consideration for her assignment, but that the same was made to relieve her brotherfrom his embarrassment consequent upon his pledge of the mortgage to the bank. The claimant was allowed to testify that she-did not receive anything, on the occasion of the conversation with, the bookkeeper, for making the assignment of the mortgage. And', it was held that said testimony was competent under the statute..
      14. Lee v. Wisner, 38 Mich. 82, 87 (decided January 9, 1878),. where, after the death of the principal, suit was brought againsfc the surety in a joint and several bond executed by the principal and surety to indemnify one of the sureties upon a forfeited official bond given by the principal. And it was held that there was no force in the objection that the plaintiff should not have been allowed to testify to matters equally within the knowledge of the deceased.
      15. Howard v. Patrick, 38 Mich. 795, 799 (decided June 5, 1878), where a daughter, as administratrix of her father’s estate, filed a. claim against her brother’s estate for the conversion by her brother, after her father’s death, of certain personal property belonging to-her father’s estate. The claimant sought to establish the claim, the allowance of which was opposed by the administrator of her brother’s estate, by her own testimony and that of her sister as to-the acts and declarations of her brother. The testimony of the-sister was excluded on the ground that, though she was not in the-strictest sense a party to the record, yet she was a daughter of' claimant’s intestate, and one of the distributees of his estate, and the testimony of the claimant- was held incompetent upon the-ground that she was the “opposite party” within the statute. And it was held that the testimony of the claimant was properly excluded for the reason assigned; that the sister of the claimant, having, previous to being called as a witness, assigned her claim, and being no longer interested in the result of the case, was, under any view of the statute, a competent witness, and her proposed evidence should have been admitted.
      16. Rust v. Bennett, 39 Mich. 521 (decided October 31, 1878), holding that in a suit brought in behalf of the estate of a deceased person, to which a private corporation is defendant, it is competent for the corporators to testify in behalf of the corporation to facts which, if true, were equally within the knowledge of the deceased.
      17. Downey v. Andrus, 43 Mich. 65 (decided February 11, 1880), where a son filed a claim against his mother’s estate for money claimed to have been loaned to her. After certain witnesses had testified in his behalf that they were present at his house on a certain occasion, and heard a conversation between him and his-mother, claimant took the stand, and, after testifying that he was present at the conversation testified about, was asked to state what occurred on that occasion. And it was held that, giving to the vague and uncertain statements of said witnesses the greatest force they would bear in the. claimant’s favor, it was impossible to gather from them anything further than that decedent asked ■claimant for money, and he handed her $100; that from such facts .'the law will not infer a loan; that the case was, therefore, one where the presence of said witnesses on the occasion referred to was immaterial, and to have allowed the claimant to testify be- ■ cause of their casual presence would have given him the same ““unequal advantage” the statute was designed to prevent.
      18. Bachelder v. Brown, 47 Mich. 866 (decided January 11, 1882), where the executor of the will of a married woman brought suit on a note, which he claimed belonged to the testatrix at the time of her death. On the trial, counsel for the defendants stated in open court that he assumed the defense for the husband of the testatrix, who, as he claimed, was the owner of the note. Said ■counsel, after introducing testimony tending to establish such ■ownership, which was the sole defense attempted to be made, •offered to prove such ownership by the testimony of the husband. .And it was held that the case fell within the intent of the statute.
      19. Yerkes v. Blodgett, 48 Mich. 211 (decided April 25, 1882), and McMillan v. Bissell, 63 Id. 75 (decided October 14, 1886), holding that, in proceedings by executors to foreclose a mortgage given to •their testator, the testimony of the defendant mortgagor to facts ■ equally within the knowledge of the testator is inadmissible under ¿the statute.
      20. In re Mower's Appeal, 48 Mich. 441 (decided June 14, 1882), where, on a final accounting by administrators, the residuary legatee under the will of the father and sole heir at law of the decedent opposed the allowance of the account. And it was held ¡that the proceeding was not one in which the personal representative, heir, assignee, or devisee of the deceased father was a party ,on either side, nor was it a suit which concerned his estate; that, while it was true that the intervenor claimed a standing in court :by virtue of being a beneficiary under the will of the father, that fact only accounted for his interest in the estate of the son, and ■was not otherwise important; that for these reasons the Court did not feel called upon to decide whether the statute of 1875 was •strictly applicable to the case of an accounting by an administrator, where he was merely giving an account of his own doings as such; but thaf it could not be so applied as to make the death of .parties interested in the estate, and the succession of others to their interests, operate to take from the administrator such right as before existed to explain under oath his official acts and doings.

        21. Brown v. Bell, 58 Mich. 58 (decided September 29, 1885), where a husband willed all of his estate to his wife for her life, with remainder to his son, to whom he gave immediate possession of the property. A granddaughter of the testator contested the allowance of the will on the ground of the mental incapacity of the testator to make it. On the hearing the son, who'was also the proponent of the will, was permitted to testify that his father made an agreement with him several years before his death by which he was to have all of the property, and was to take care of his parents as long as they lived; that the will, so far as it related to the proponent, was only in accordance with said agreement and the testator’s often expressed wishes; and that the proponent had fulfilled the agreement upon his part. And it was held that the contest was not between the estate, or its representatives, and the proponent; that the statute applies only when the estate is in some way one of the parties, and the heirs, assigns, devisees, or legatees are the others; that the application for the probate of the will was made neither by an executor named in the will, nor by any one acting as the legal representative of the estate; that the contest was between two persons who claimed an interest in the estate, and as to the estate proper were third persons, and represented no one but themselves; and that the statute did not apply to the case.
      22. Schofield v. Walker, 58 Mich. 96 (decided September 29, 1885), where the probate of a will was contested on the ground, among others, that the testatrix was unduly influenced by the legatees and devisees to make it. The contestant introduced testimony tending to prove the exercise of undue influence by one of the legatees, and the legatee was introduced for the purpose of rebutting said testimony. And it was held that the legatee was not a party to the proceeding to establish the will; that she might be interested, but such interest was remote and contingent; and that her testimony was competent.
      23. In re Estate of McClintock, 58 Mich. 152 (decided September 29, 1885), where, on the hearing of an appeal from an order of the probate court made in a proceeding under How. Stat. § 5978, which provides that all questions as to advancements to any of the heirs may he heard and determined by the probate court, and shall be specified in the decree assigning the estate, a question was made whether or not the heirs were competent witnesses. And it was held that the proceeding was not one in which the estate was on one side and the appellant (one of the heirs) on the other, as it must be in order to require exclusion of testimony under the statute; that', if there were any parties in opposition, each legatee was opposed to every other legatee; that it could make no diference to the executor, as such, into whose hands the assets fell; that no reason existed why all of the legatees might not be allowed or compelled, as the case might be, to testify concerning the advances, which were not treated as debts, but as gifts to apply on legacies. ,
      24. Cotherman v. Estate of Cotherman, 58 Mich. 465 (decided November 19, 1885), where a' son filed a claim against his father’s estate, and the testimony of the claimant’s wife in support of the claim was objected to as incompetent under the statute. And it was held that the objection was without force; that the wife was not a party to the litigation in any way, and was on the same footing as any other witness.
      25. Pendill v. Neuberger, 64 Mich. 220 (decided January 13, 1887), where an action for rent upon a verbal lease was brought against the lessee by the heirs of the lessor. Evidence having been introduced by the plaintiffs of portions of a conversation had between the deceased and the defendant, at which time the agreement was claimed to have been made, defendant sought to testify to the entire interview between the parties, during a part of which no third person was present. And it was held:
      a — That the testimony so offered by defendant was properly ex-, eluded under the statute.
      b — That the plaintiffs were not disqualified as witnesses, not being “opposite parties,” And see the same case, reported in 67 Mich. 562.
      26. Stackable v. Estate of Stackable, 65 Mich. 515 (decided April 21, 1887), where a wife filed a claim against the estate of her husband’s deceased brother for board furnished the decedent while her husband was the head of the house. The husband claimed that he gave the board to.his wife, and that it was understood that she was to receive the pay for the same. And it 'was held that the amendment of 1885, which declares that the words “opposite party,” as used in the statute, shall be deemed to include the assignor or assignee of the claim sought to be enforced, covers an assignment, whether made before or after the death of the party sought to be charged; that without-some assignment from the husband the claim for decedent’s board would belong to the husband, and not to claimant; and that he was not a competent witness to testify as to the time the decedent boarded at his house, or the price agreed to be paid for said board.
      27. Duryea v. Estate of Granger, 66 Mich. 593 (decided July 7, 1887), where the administrator de bonis non of an estate which had been settled under a former administrator filed a claim against the estate of said administrator for one-half of the proceeds realized by him on the sale of a vessel belonging to himself and the decedent, and which, as claimed, he had converted to his own use. The executrix of said administrator was offered as a witness upon the part of his estate. And it was held that the mere-fact that she was such executrix would not constitute her the “opposite party” under the statute, and, in the absence of proof that she was a legatee under the will or had any interest in the-estate, she was a competent witness for the estate.
      28. Hood v. Olin, 68 Mich. 165, 175 (decided January 12, 1888), 80 Id. 296, where a mortgagee replevied the mortgaged property from a firm, one member of which had furnished it to the mortgagor to be used in the prosecution of a logging contract, and retained the title in himself until the property should be paid for. The firm made advances on the contract. The mortgagor, after entering upon its performance and giving the mortgage in question, abandoned his contract, and the fh-m took possession and completed it. After the replevin of the property, the partner who had furnished it to the mortgagor died, and the suit was prosecuted against the surviving partner. And it was held that the .testimony of the mortgagor was competent under the statute.
      29. Taylor v. Bunker, 68 Mich. 258 (decided January 19, 1888),. where after the trial of a case the defendant died, and the ease was revived against the administrator of his estate. The declaration was amended, and on a second trial the testimony of the plaintiff to a conversation had with the decedent was sought to-be introduced under the claim that, inasmuch as the decedent was-allowed to cross-examine the plaintiff on the former trial, and testify in his own behalf, the plaintiff should be allowed to testify, and leave the administrator, who was defending the case, to introduce, in rebuttal, the testimony of the decedent given upon the-former trial. And it was held that, aside from other considerations which rendered the proposition untenable, the change in the-issue by the amendment of the declaration after the revivor of the case had that effect, if, under any circumstances, such a course-would be permissible.
      30. Hillman v. Schwenk, 68 Mich. 293 (decided January 26, 1888), where, prior to the trial of a suit brought by the holder of a promissory note purporting to have been indorsed in blank by the-payee, the payee died. His devisee urged the defendant to defend on the ground that the alleged indorsement was a forgery, and indemnified the defendant against loss in so doing. And it was-held that the testimony of the plaintiff, as to the purchase of the-note from the payee, was not incompetent under the statute. And see Hillman v. Schwenk, 68 Mich. 297, 300, holding that if the executor of the payee had indemnified the defendant, or taken upon himself the defense of the case, said testimony would have been •incompetent.
      31. Buffum v. Porter, 70 Mich. 623 (decided June 15, 1888), where-a bill was filed to declare a deed absolute on its face, executed by complainant to his brother, since deceased, to be a trust deed. The defendant claimed title under the heirs of the grantee. And it was held that the complainant was disqualified under the statute from testifying to any facts equally within the knowledge of the grantee.
      32. M’Cutcheon v. Loud, 71 Mich. 433 (decided October 5, 1888), holding that where in a suit against the trustees of a copartnership upon a contract made by their business agent, who was also a member of the firm, the judgment, if one is recovered, must be paid out of the trust estate, the death of such agent renders the testimony of the plaintiff as to the terms of the contract inadmissible, said trustees being the representatives of said deceased beneficiary.
      33. Webster v. Sibley, 72 Mich, 630 (decided November 28, 1888), where an action was brought by executors upon a verbal contract claimed by them to have been entered into by their testator and the defendants, but which the defendants denied making. Upon the trial plaintiffs introduced a witness claimed to have been present when the contract was made, and ,who testified as to its terms. One of the defendants, when sworn in his own behalf, was asked whether he had ever entered into any agreement with reference to the subject-matter in controversy in the presence of said witness. And it was held that the exclusion of the testimony was error; that the defendants were not bound by the testimony of said witness, but were privileged to contradict him in any manner they could upon a material point; that the effect of the testimony might or might not have been to establish a fact equally within the, knowledge of the decedent, but, until it did necessarily show the fact to be equally within such knowledge, it ought not to have been excluded.
      34. Doolittle v. Gavagan, 74 Mich. 11, 13 (decided February 8, 1889), where a surviving partner sued a married woman for a bill of goods sold to her by the firm. The defendant claimed that the price of the goods, except $8, had been paid to a deceased member of the firm by her husband. The firm had dealt with the husband as agent of defendant, and not as owner of the business, which had been conducted in her name for some years. And it was held that the husband was competent to testify to said payment.
      35. Buck v. Estate of Haynes, 75 Mich, 397 (decided June 21, 1889), holding that the assignor of an account filed by the assignee against the estate of a deceased person may be asked on cross-examination the purpose of such assignment, and, if shown to have been to make him a competent witness, he cannot testify to the account, even if competent to testify under any circumstances to matters equally within the knowledge of the decedent,

        36. Beardslee v. Reeves, 76 Mich. 661 (decided October 18, 1889), where, prior to the trial of a suit brought by an administrator for the value of certain notes and a mortgage belonging to the estate, as alleged, and which the administrator claimed the defendant had converted to his own use, the defendant was summoned into the probate court by the administrator to answer interrogatories as to his disposition of the notes and mortgage. On the trial of the main case the stenographer was called as a witness by the plaintiff, and his minutes read from to prove that the defendant, on such examination, had testified that he had one of the notes in his possession, and that he had received the money on the mortgage. On cross-examination the stenographer was asked by defendant’s counsel if defendant did not state on his examination that his father, before he died, had given and delivered the mortgage to him. And it was held that the testimony, under the circumstances, was admissible; that, independent of the question of waiver, if any part of such examination was used by the plaintiff, the defendant was entitled to the whole of his testimony given on such examination, or such parts thereof as he deemed material.
      37. Lautenshlager v. Lautenshlager, 80 Mich. 285, 290 (decided April 25, 1890), where a son and a daughter offered for probate two instruments, in form warranty deeds, purporting to convey to each a portion of their father’s real estate. In order to establish the testamentary character of the instruments, the proponents were permitted to testify that the decedent retained the papers in his possession, and on the day of their execution informed proponents that he should retain such possession, as also the control of his property, while he lived. The testimony was objected to by the contestant, a brother of the proponents, as incompetent under the statute. And it was held that the statute did not apply to such a case.
      38. Wilson v. Estate of Wilson, 80 Mich. 472 (decided May 2, 1890), holding that the testimony of a daughter of a claimant against the estate of a deceased person, as to admissions made to the witness by the deceased tending to establish the claim, is not incompetent.
      39. Lake v. Nolan, 81 Mich. 112 (decided May 16, 1890), holding that the estate of a deceased grantor is not interested in a suit by the widow to set aside the deed and secure her dower interest in the land conveyed, and the grantee is not disqualified as a witness.
      40. Barker v. Hebbard, 81 Mich. 267 (decided June 6, 1890), where, after the death of the defendant, the case was revived against the administratrix of his estate. On the second trial the plaintiff, after showing that both the decedent and himself had testified on the former trial, offered to permit the administratrix to show by the stenographer who took the testimony on the first trial what the decedent testified to, and, upon her refusal to accept the offer, then to have the stenographer testify to what the plaintiff said on that trial. And it was held that this was an attempt to avoid the effect of the decision in Taylor v. Bunker, 68 Mich. 258; that the statute is imperative, and stood as a barrier in the one case as well as in the other.
      41. Jackson v. Cole, 81 Mich. 440 (decided June 13, 1890), where •a widow sued upon a claim assigned to her by her husband in his lifetime. She was sworn as a witness in her own behalf, and asked if the decedent had transferred the claim to her. And it was held that the testimony was competent.
      42. Penny v. Croul, 87 Mich. 15 (decided July 28, 1891), where an executor was sued in his individual character by the administrator of the estate of the widow of the testator for the conversion of certain bonds received from her after the testator’s death, but before his will was probated. The executor inventoried the bonds as the property of the estate, and never claimed any personal interest in them. The administrator claimed that they were delivered to the executor for safe-keeping by the widow, who had received them as a gift from her husband during his lifetime, which the executor denied, and claimed that the bonds were delivered to him with the understanding that he received them as the property of the estate, and with the free will and consent of the widow. And it was held that the real issue was between the two estates as to the ownership of the bonds, and that the executor was not disqualified from testifying as a witness under the statute, but that an heir of the widow was so disqualified.
      43. Schuffert v. Grote, 88 Mich. 650 (decided December 21, 1891), where a son filed a bill to set aside a deed executed by his father, since deceased,' to the defendant, and confirm the title to the land in the complainant under a prior deed, executed to complainant by his father, but retained in the father’s possession, and, as claimed by the defendant, destroyed prior to the execution of the second deed. And it was held that the testimony of the complainant as to the execution of the first deed, and as to what tools place between his father and himself, was excluded by the statute.
      44. Smith v. Estate of Smith, 91 Mich. 7 (decided March 18, 1892), holding that the assignor of a claim against the estate of a deceased person for logs loaned the deceased is not disqualified under the statute from testifying, in a suit brought by the assignee to recover the claim, to the arrangement made by the assignor with the agent of the deceased, in his absence, and under which the logs were delivered.
      45. Letts v. Letts, 91 Mich. 596 (decided May 13, 1892), where, in & suit by a daughter upon a note given to her father by the defendant, plaintiff gave evidence tending to show that she received ■the note as her share of her father’s estate, and that it had never been paid. The defendant offered his own testimony to show that, by agreement with plaintiff’s father, the note was never in fact to be paid by defendant, but was given as the consideration for real estate deeded to defendant by plaintiff’s father as a part -of the estate which would eventually fall to plaintiff, she being the divorced wife of the defendant. And it was held that, plaintiff’s title being derived from her deceased father, said testimony was ■incompetent.
      46. Metropolitan Life Ins. Co. v. O'Brien, 92 Mich. 584, 589 (decided July 28, 1892), where a bill of interpleader was filed by a life insurance company to determine the relative rights to the insurance money of the assignee of the policy, who was also the beneficiary by substitution named therein, and the heirs of the ■insured. And it was held that the assignee was incapacitated from testifying to facts which would have been equally within the knowledge of the insured.
      47. Fenton v. Miller, 94 Mich. 204 (decided December 22, 1892), holding that where, in an action of ejectment against a mother •and her infant children, the mother is disqualified under the statute from testifying to a conversation with plaintiff’s deceased grantor, ¡such disability extends to her codefendants, who would be benefited by such testimony.
      48. Lloyd v. Hollenback, 98 Mich. 208 (decided December 22, 1898), holding that the statute applies to a daughter who files a bill to set •aside a deed executed by her father in his lifetime to the defendant, based upon his agreement to give complainant the property in consideration of a life support.
      49. Connolly v. Keating, 102 Mich. 1 (decided September 25, 1894), holding that the statute applies to a party who files a bill to declare the title to land conveyed to the decedent in his lifetime to be in the complainant.
      50. McHugh v. Fitzgerald, 103 Mich. 21 (decided December 18, 1894), where the allowance of a will was contested on the ground of undue influence, and one of the proponents, who was also a •devisee under the will, was permitted to. testify that the testatrix •had stated to the witness that she intended to leave her property ■to the proponents. And it was held that the testimony was not -within the prohibition of the statute.

        Waiver of the Statute.

      For cases bearing -upon the question of the waiver of the provisions of the statute, see Michigan Savings Bank v. Estate of Butler, 98 Mich. 381, and note’.

        Corporation Cases.

      For cases bearing upon the provisions of the statute that, when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, no person who is or has been an officer or agent of such corporation shall be allowed to testify at all in relation to matters which, if true, must have-been equally within the knowledge of such deceased person, and, when any suit or proceeding is prosecuted or defended by any corporation, the oj>posite party, if examined as a witness in his own behalf, shall not be admitted to testify at all in relation to-matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent thereof,— see Krause v. Assurance Society, 99 Mich. 461, and note.

   McGrath, C. J.

Defendant is sued as the maker of the following note:

“$200. Tyrone, December the 2, 1889.
“ One year from date, for value received, I promise to pay to John McKeon, or bearer, $200, with interest seven per cent.
“Charles McKeon.”

On the back of said note is indorsed the following writing and signature:

“I hereby sell and assign the within note to H. B. Latourette; guarantee the same free from all equities and offsets; that nothing has .ever been paid on note.
“Fenton, Oct. 21, ’92. Mrs. D. Hogan.”

Defendant and Margaret Hogan are brother and sister, and son and daughter of John McKeon, who died February 2, 1890. Margaret Hogan testified that her father during his last illness gave her the note. It is urged that the testimony of Margaret Hogan was incompetent, under 3 How. Stat. § 7545. It appears by the record that the maker of this note was informed within one week after his father’s death of the fact that his sister held and claimed to own this note. Administration had been had upon the estate of John McKeon, and the estate closed, before this suit was launched.

In Hillman v. Schwenk, 68 Mich. 293, Schwenk gave his note to one Weigers. Weigers died, and Hillman, claiming title by indorsement and delivery before Weigers’ death, brought suit upon the note. The indorsement was not in the handwriting of decedent, but appended thereto was what was claimed to be his mark. At the instance of Wolff, a legatee under the Weigers will, Schwenk attacked the transfer, and it was urged that Hillman’s testimony, offered in support of the transfer, was incompetent; but this Court held that the statute was inapplicable.

In Hillman v. Schwenk, 68 Mich. 297, 299, the same question was raised, and the Court say:

“ While it was competent for the defendants to impeach “the plaintiff’s title in the note, and to agree upon that as the sole question in the case, such agreement would not bind the executor of the estate, as he was not a party to it, and did not take upon himself the burthen of the ■defense.
“The title of the testator’s personal property vests in the executor for the purposes of administering the estate; and, if the note in question in reality does belong to the •estate of John Weigers, the executor would not be bound by a judgment in this case in the plaintiff’s favor. If the executor neglects his duty in collecting or obtaining possession of the assets of his testate, the law affords to the devisees and legatees a remedy, but the law does not permit a devisee or legatee to represent the estate in the prosecution or defense of suits.
“If the executor had indemnified the defendants, or had taken upon himself the defense of the suit, the statute ■excluding the plaintiff from testifying to matters which were equally within the knowledge of the deceased would have applied; but, as the legatee does not represent the ■deceased person while there is an executor, the statute ■does not apply.”

The first-named case came before the Court again in 68 Mich. 301, when it appeared that the administrator of the •estate of Weigers had assumed the defense of the suit, and the Court, holding that the testimony was incompetent, reversed the judgment, refusing to grant a new trial.

In Jackson v. Cole, 81 Mich. 440, suit was brought to recover the amount of a claim assigned to plaintiff by her busband in his lifetime, and it was there held that plaintiff was competent to testify as to the transfer.

In Brown v. Bell, 58 Mich. 58, the question arose as to the admissibility of the testimony of the proponent of a will, who was the principal devisee, respecting an agreement between _ himself and decedent, antedating the will, in conformity with which the will was made, and the Court held the testimony competent. “The contest,” say the Court, “is not between the estate, or the representative of the estate, and the proponent. The statute applies, only when the estate is in some way one of the parties, and the heirs, assigns, devisees, or legatees are the others. * * * This contest is between two persons who claim an interest in the estate, and as to the estate proper are third persons, and represent no one bnt them•selves.” See, also, Schofield v. Walker, 58 Mich. 96.

Under the rule laid down in these cases, the testimony was competent.

Error is assigned upon the refusal of the court to instruct the jury as follows:

“If the jury find from the evidence in the ease that Mrs. Hogan obtained possession of the note without consideration, and the title of the note now rests in the estate of John McKeon, then plaintiff cannot recover.”

The first part of the request was calculated to mislead “the jury. The fact that the donee of the note was a ■daughter, and the circumstances under which the note was .given, supported the transfer, and it was unnecessary to ■show a further consideration. The request was therefore properly refused.

The judgment is therefore affirmed.

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