author: Grant, J.

text:
    RIVARD v. RIVARD.
    1. Appeal—Review of Case.
    Cases will be reviewed and disposed of "in the Supreme Court upon the points and theories presented in the court below.
    2. Wills—Undue Influence.
    Undue influence is not exercised openly, but, like crime, seeks seerecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.
    3. Same—Sufficiency of Evidence.
    In a contested will case, it appeared that, soon after the execution of the will, the testator commenced, by codicils, to diminish the shares of some and increase those of others of his devisees, until in this way, and by deeds of conveyance, he had practically disinherited all but two of his seven children, and left to the two almost the entirety of an estate worth from $250,000 to $400,000; that some of the disinherited children were in greater need of his bounty than the two favored ones; that, of the latter, one of them lived with the testator for about five years before his death, and the other was a frequent visitor, and in consultation with the testator; that, after some of these interviews, the testator made remarks against one of his disinherited sons, and spoke about fixing interests differently. Held, that there was substantial evidence to go to the jury on the question of undue influence.
    4. Same—Mental Competency of Testator—Appeal—Sufficiency of Objections to Testimony.
    An objection to a question, calling for the opinion of a non-expert witness as to the mental capacity of a testator, as “incompetent,” is too indefinite to enable the party objecting to raise the point on appeal that the witness had not shown sufficient facts and knowledge upon which to base an opinion.
    5. Same—Evidence—Non-expert Witness.
    A witness who has described looks and actions and language of a testator, inconsistent with a normal state of mind, is properly permitted to express an opinion that he was mentally unsound.
    6. Trial—Hypothetical Questions—Procedure.
    Where it is sought to introduce the opinions of experts upon hypothetical facts, the usual and better practice is first to introduce all of the evidence to support the facts assumed by the question. If, however, after the close of the testimony, it be found that such question assumed the existence of facts which there is no testimony to support, the opposing counsel should move to have the answer stricken out, and excluded from the consideration of the jury.
    7. Wills—Mental Capacity—Hypothetical Questions.
    The statements embraced in an hypothetical question to a medical expert, calling for his opinion as to the mental competency of a testator, should be limited to facts which, if true, are indicative of mental unsoundness.
    8. Same—Moral Obligations of Testator.
    An hypothetical question to a medical expert, calling for his opinion, upon the facts assumed, as to the mental capacity of a testator, is not objectionable because it includes the question of his power to comprehend “hisTOoraZ obligations to others, and the proper objects of his bounty,” where, from the context, it would be readily understood that the obligations referred to were those which a parent owes to his children.
    9. Expert Testimony—Character and Weight of.
    The testimony of experts is to be treated like that of other witnesses, and it is for the jury to judge of the weight to which it is entitled, without discriminative instructions from the court.
    10. Appeal—Harmless Error.
    A judgment will not be reversed for trivial errors in the admission of testimony which cannot in reason be presumed to have affected the result.
    11. Wills—Mental Competency—Delusions.
    Where a testator disinherits a daughter upon the belief that she is a bad woman or that she is not his own offspring, or a son upon the belief that he is a drunkard, or his grandchildren upon the belief that their father (the testator’s son-in-law) has threatened to kill him, and it appears that there is no foundation in fact for such beliefs, but that they are mere delusions, the will is void, notwithstanding the testator was entirely sane upon all other subjects, and fully competent to manage his business affairs.

      12. Same—Natural Justice.
    The fact that a will is contrary to natural justice may be taken into consideration in determining the competency of the testator to make it.
    Error to Wayne; Frazer, J.
    Submitted March 3, 1896.
    Decided March 31, 1896.
    Charles Rivard and others appealed from an order of the probate court allowing the will of Ferdinand C. Rivard, deceased. From a judgment for contestants, Paul Rivard and Ephraim Rivard, executors and proponents, bring error.
    Affirmed.
    Ferdinand C. Rivard died testate in 1892, at the age of 82 years. He owned a farm of 400 acres, situated about six miles from the city of Detroit, on the road to Grosse Pointe. There he was born and always lived. A part of the farm he inherited. The rest he obtained by purchase. He was a shrewd, careful,’ economical man. He amassed considerable property, and at his death owned some real estate in the city of Detroit, and two farms in Macomb county, besides considerable personal property. His wife died in 1874. Shortly after her death he made his will, dated September 12, 1874. He afterwards executed 12 codicils thereto, dated, respectively, as follows: (1) July 6, 1875; (2) August 28, 1880; (3) September 11, 1880; (4) same date; (5) August 25, 1882; (6) May 9, 1883; (7) February 7, 1885; (8) March 16, 1886; (9) April 2, 1886; (10) May 23, 1888; (11) May 28, 1888; (12) May 26, 1890 He had seven children,— three sons and four daughters,—all of whom were living when the original will was made. By this will he made an equitable division of his property among his children. By his various codicils he took away the larger share given by the first will to five of his children, and left most of it to his two sons Paul and Ephraim. The will is attacked upon the ground of incompetency and undue influence. These questions were submitted to a jury, who decided in favor of the contestants.
    His daughter Archange was married to a Mr. Connor in 1870. This marriage was unfortunate, Mr. Connor being a spendthrift and a man of bad character. She had eight children, and in 1881 she left him, and, at her father’s request, took them all, and went to his house to live. His daughter Pauline, in 1870, married a Mr. Lodewyck. She died May 19,1880, leaving five children. These children went to their grandfather’s to live after her death. About four months after her death, Rose married Mr. Lodewyck. Mr. Rivard naturally was opposed to the marriage in so short a time after the death of Pauline. He refused his assent, whereupon Rose and Lodewyck went away, and were married without his knowledge. Julia, at 19 years of age, left home, lived some three years with Mr. and Mrs. Lodewyck, and then entered a convent. Charles, who by the first will was made equal with Paul and Ephraim, was by one of the codicils bequeathed only a life estate.
    Errors are assigned upon the refusal to give certain instructions requested by the proponents, in giving certain instructions requested by the contestants, in giving certain oral instructions, and in the exclusion and admission of testimony.
    The court, at the request of proponents, after stating the statute of wills, and the power of every person t'o devise his property, instructed them as follows:
    “1. The intention of the statute of wills is that every one of full age and sound mind shall be at liberty, in making a will, to select the objects of his bounty, among his relatives, at discretion, or to pass them all by, if he is so disposed.
    “ 2. The court or jury cannot interfere with a testator’s voluntary and intelligent bequests, or inquire into the propriety of any disposition he chooses to make, so long as the will is not unlawful in its terms, and is legally executed.” To this request the court added, “and the testator is, at the time of its execution, of sound mind.”

      “3. And the question as to the capacity of the one who makes the will must refer to the will in question,—not his capacity to make any will in general,—and must refer to the time when the will was made.
    “4. If the testator intends, of his own free will, to make certain dispositions of his property; if he is capable of knowing what he is doing, of understanding to whom he gives his property by his will, and in what proportions, and what heirs he is depriving of property,—this is sufficient to sustain the will, if he, at the time of making such will, is of sufficient age and sound mind.
    “5. It is not necessary that Ferdinand C. Rivard should have had the same perfect and complete understanding of all matters relating to his property, and all their bearings, that a person of good and vigorous health might have had; nor is he required to know the precise legal effect of every provision in the will.” To this the court added, “provided he is at the time of sound mind.”
    “ 6. The capacity to make a contract is sufficient to make a will, and a less degree will answer for making a will than a contract.
    “7. The will will not be set aside merely because its maker was weak, or sometimes foolish, or lacked the average mental capacity of his neighbors, or did not dispose of his property as others, who knew nothing of his reasons, might think he ought to have done.” To this the court added, “if he was of sound mind at the time he executed it.”
    “8. It is immaterial that by the provisions of the will any child or children or grandchildren were disinherited, or the provision that was made for them in the will was subsequently changed by the codicils. It is immaterial whether the provisions of the will are or are not such as the jurors may think ought to have been incorporated in it. This is no reason for setting aside the will, provided that the jury find that at the time of the making of it the testator was of full age, and sound mind sufficient to understand its meaning, the objects to whom these bequests were made, and the child or children het had disinherited.
    “9. It is not necessary that the evidence should show what, in the opinion of the jurors, may have been a sufficient reason for omitting any one or more of his heirs from the provisions of the will. The justice or injustice of such omission cannot be inquired into, providing the testator was of full age and sound mind, and acted without any undue influence, and understood fully what he was doing, when he made the will by which he omitted any one or more of his heirs from the bequests.
    “10. The evidence is undisputed that for 30 years before his death the testator, Ferdinand C. Rivard, carried on his business of farming, made contracts and leases, bought and sold real estate and personal property, and that no one, so far as the evidence shows, ever questioned his mental capacity or competency to do so. These facts may be taken into consideration by the jury, and given weight by them, in determining the question as to whether, when he executed the will, he was of sound mind.
    “ 11. Even if the jury believe some of the provisions of the will betray ingratitude and the want of natural affection, showing that he did not distribute his estate equally among his relatives, still those facts alone do not prove the want of testamentary capacity.” This request is marked, ‘ ‘ Given as modified;” but there is nothing to show how modified, unless it be by the oral charge of the court.
    “ 12. If Ferdinand C. Rivard, at the time of- making his will, knew the nature and effect of it,—knew his children, and the circumstances of each of them in life; the extent of his property, and the scope and bearing of the provisions of his will; how much he was giving to each, and the way he was giving it, and which of them he was passing by,—and gave the property according to his free will and wishes, and he was of sound and disposing mind and memory, and competent to make it, his will would be valid, and should stand. It was his right to make it, and not the right of the jury to make or unmake it for him.
    “13. A testator has the capacity that his will shows him to possess.
    “14. A testator competent to make a will has the right to make it as he wills and wishes, and is not required to give any reasons why. he has made it in the way he has.”
    15. The court, at proponents’ request, also instructed the jury to find, in answer to special requests, that the testator, when the will was executed, did know the extent and value of his property, and also knew his children.
    16. John Ward, an attorney of long standing and experience in the city of Detroit, was the attorney for Mr. Rivard for many years; drew the will and the codicils. Contestants’ counsel argued to the jury that Mr. Rivard was unduly influenced by Mr. Ward. The court, at proponents’ request, instructed the jury that there was no evidence to show any undue influence on the part of Mr. Ward to bring about either the will, or any codicil to it, but did not, as requested, instruct them to disregard the arguments of counsel for the contestants on this point.
    The court gave the following requests on the part of the contestants:
    “1. It is essential to the validity of a will that the person making it be of sound mind, and that its provisions be the real wish of the testator himself, freed from all undue influence affecting its provisions.
    “2. While the undue influence which operates to defeat a will must be such as to overcome the free action of the mind at the very time of making the testamentary disposition of the property, it is also true that the pressure may sometimes have been brought previously. If such pressure had been brought previously, and remained, so as to coerce the mind of the testator at the time the will was executed, it cannot be upheld.
    “3. Proof of undue influence must be made out, in most instances, by proof of facts and circumstances. Such facts and circumstances, standing alone, may be trivial, but when taken together, and considered in relation to all the other facts of the case, must satisfy the jury of its existence.
    “4. In order for the jury to find that Rivard was of sound mind, the jury must be satisfied that at the time of making the will he not only had sufficient memory to recall the several persons who might, or ought to be, the fitting objects of his bounty, but sufficient understanding to comprehend his relationship to them, their relationship to him, and their claims upon him.
    “5. It is essential to the exercise of the power to make a will that a testator shall understand the nature of the act he is doing, that he shall be able to comprehend and appreciate his relationship to others who might or ought to be the objects of his bounty, and that nothing shall so far influence his will in disposing of his property as to bring about a disposition of it which, if his mind had been sound, would not have been made.
    “6. It is essential to the exercise of the power to make a will that the testator be able to comprehend and appredate his relations to others who might or ought to be the objects of his bounty, and that no disorder of the mind shall so far poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, as to render him incapable of such comprehension and appreciation, and to bring about a disposal of his property which, if his mind had been sound, would not have been made.
    “7. If insane suspicion or insane aversion takes the place of natural affection; if reason and judgment are lost, and the mind becomes wild, and its functions disturbed, so as to lead to a testamentary disposition due only to such influences,—then the condition of testamentary capacity fails, and a will made under such circumstances cannot stand.
    “8. In determining the question of a testator’s capacity, the jury, are at liberty to consider the character of the will itself,—whether simple in its provisions and applications, or otherwise; the jury being instructed that the question of capacity always relates to the capacity of the testator to make the particular instrument in controversy.
    “9. The jury may consider the nature and character of the will, and, if it be contrary to natural justice, this, with the other facts of the case, may be considered by the jury in the determination of the question whether or not the testator was of sound mind.
    “10. In determining the question of testator’s capacity, the jury are at liberty to consider whether or not the claims of near relationship have been disregarded; and, if they find that such claims have been so disregarded, they may consider that fact, in connection with the other circumstances of the case, and give it such weight as_, in their sound judgment and discretion, they think it entitled to.
    “11. In determining the question of testator’s capacity, it is the duty of the jury to consider all the facts which, by a preponderance of evidence, they find to be true. If these facts, taken together, and rightly considered by the jury, fail to satisfy them that, at the time of making the will, Rivard was capable of comprehending and appreciating the claims which his children had upon him, then they may reject it.
    “12. It is essential to the making of a valid will that the testator be of disposing mind and memory. Failure of memory, if the jury find it to have existed, may be considered by the jury, in connection with all the other circumstances of the case, in determining testator’s capacity ; and they are at liberty to give it such weight as, under all the circumstances of the case, they, in the exercise of their sound judgment and discretion, think it entitled to.
    “13. If the jury believe that the testator was laboring under partial insanity or monomania, and that the will was the direct offspring of such partial insanity or monomania, then the jury is instructed that the will must be regarded as invalid, even though the general capacity of the testator to do ordinary business be unimpeached, provided such monomania so affects the testator, in the making of his will, as to show him to be of unsound mind in that particular.
    ‘ ‘ 14. The instructions given as to the capacity to make the will are equally applicable to the capacity to make the codicils, and must be so regarded by the jury.
    “15. The jury is instructed that, while a man is not to be regarded of unsound mind simply because the provisions of his will are unjust, yet the jury have a right to take into consideration the provisions of his will; and if they find them to be unjust, in view of the claims that his children rightfully had upon his bounty, the jury have a right to consider this fact, in connection with all the other circumstances of the case, in determining whether or not the testator was of sound mind.
    “16. The jury is instructed that if Rivard was of sound inind, and desired to prevent Lodewyck from having any benefit from whatever share of his property he might desire Pauline’s children to receive, it was not necessary for him to cut off such children absolutely, as was done by the codicil of February 7,1885. He could have vested the title in a trustee for the benefit of such children during their lives.”
    After reading to the jury the above requests, the court gave the jury oral instructions, the material parts of which, affecting the questions raised, are as follows:
    “Testimony has been introduced in this case showing, or tending to show, that the testator, Ferdinand C. Rivard, was disturbed by fear of some impending danger, that he was unkind to his wife and children, that he was cruel in his treatment of domestic animals, that he demanded of his children strict obedience, that he restricted them in their pleasures, and that he exhibited other peculiarities in his conduct. All this testimony is introduced for the purpose of showing you what kind of a man Ferdinand C. Rivard was. These doings have been met by disclaimer on the part of proponents of this will, and evidence has been introduced tending to maintain their position. That is, the evidence on the part of the proponents has disputed the propositions of contestants; and, as to the truth or falsity of the evidence on these questions, I leave that to you. A great deal of evidence has been introduced in this case to show that Ferdinand C. Rivard was a man capable not only of comprehending the property he possessed, the nature of it, of knowing the land he owned, and its boundaries, but that he was shrewd in making a bargain, and that he was generally competent to conduct business affairs. I think there is not any evidence in this case that would warrant you in finding that Ferdinand C. Rivard was not a man of ordinary business capacity, and that this business capacity continued up to his death. I have no doubt, from the evidence, that he was capable of understanding what property he possessed, and that he was capable of managing it successfully. Neither do I think the evidence in this case would warrant you in finding that he was a man who did not know his children when he met them, and that he did not know his-grandchildren, and what relation they were to him.
    “ But the main and all-important question—it seems to me—for you to consider is whether, under the evidence in this case, Ferdinand C. Rivard was of sufficiently sound mind to comprehend the obligations he was under to his children, and those who were dependent upon his bounty, or entitled to his bounty, and it is for the purpose of enlightening you upon this question that so much of this evidence has been introduced. And, in considering this question, it is your duty to examine carefully into the conduct and behavior of the testator towards his wife and children and those surrounding him, so that you may form a clear insight into the real condition of the testator’s mind. And it is with the view of enlightening you on this question that this evidence in regard to his treatment of animals that surrounded him was introduced, so that you may justly judge as to the character and condition of the testator’s mind. * * *
    ‘ ‘ A man may be perfectly sound, and able to conduct his business and understand his affairs, and even to know to whom he has given his property, and still be in such a condition of mind that he is incapable of comprehending his duties towards others. In other words, he may be perfectly sound in many particulars, and be unsound in others, or some one particular. This is what is known as ‘monomania.’ If a person is a monomaniac, and his will is affected by the peculiar character of his mania to such an extent that a jury shall believe that he is of unsound mind, then that will is not the will of the person executing it, because it is the will of a man of diseased or unsound mind, in that particular. So you see that in this case it is necessary for you to discriminate in the application of this testimony as to the particular thing in which this testator is claimed not to have possessed sufficient intellect or capacity to execute this will.
    “You are at liberty, also, to take into consideration the terms of the will itself, not for the purpose of substituting your opinion for the opinion of the testator as to the manner in which he should have disposed of his property, but for the purpose of ascertaining, and from what has been shown by all the testimony in this case, taking into consideration every characteristic of this man, and his conduct through all his life, whether such a will would be the product of such a man with a sound or unsound mind.
    “You are also at liberty, for the purpose of determining this proposition, to take into consideration the reasons that have been assigned for the disposition of the property in the manner it has been disposed of by this will, not for the purpose of deciding or determining whether you would make such a will or not, but for the purpose of determining whether Ferdinand C. Rivard—such a man as the testimony in the case has shown him to be—would or would not, if he was a man of sound mind, be actuated by the reasons assigned. In other words, all the testimony is simply for the purpose of enabling you to arrive at a conclusion as to the condition of this man’s mind, as judged by his acts.
    “A man owes certain duties to his family,—to those he has been instrumental in bringing into the world. He is under certain legal and moral obligations to them, and, if these obligations are overlooked or disregarded, then it is important for you to inquire whether the reasons that are assigned for overlooking or disregarding these duties were such as actually operated upon him, if his mind was sound, in so doing. If they did, and the reasons were sufficient to him, and his mind was sound, then this will cannot be set aside; but if, on tbe other hand, these reasons indicate to you, together with all the testimony in this case, that the mind of Ferdinand C. Rivard was not sound in this regard, then you are as much at liberty to deny this will to probate as if he were incompetent in every particular, if the incompetency which you find affected the provisions of the will that is here presented.”
    The court refused to instruct the jury that there was no evidence of undue influence, or incompetency to make the will; also, that if he was of sound mind, sufficient to enable him to buy and sell and deal in property on the basis of contract, or to buy for cash, to give deeds and leases, and to make gifts, this implied sufficient capacity to devise his property by will; also, that if he was nervous, of violent, temper, and unjust in his dealings, or tyrannical, these, of themselves, do not prove anything against his testamentary capacity; also, that expert testimony of the kind given in this case is uncertain and unreliable, and but little weight should be given to it.
    Two other questions, in addition to those above mentioned, were proposed by the proponents:
    “When the instrument was executed, did the testator understand the provisions made for his children, and did he understand how to make them ?
    “ Did the testator, at the time the will was made, and when the changes were made by codicils, act upon reasons satisfactory to himself, in making the several changes?”
    The above is a sufficient statement of the case. Any further reference to facts will be made in connection with the points raised.

      John Ward (Henry M. Cheever and John Atkinson, of counsel), for appellants.

      Don M. Dickinson (Samuel S. Harris and John D. -Conely, of counsel), for appellees.
   Grant, J.

(after stating the facts).

The court did not err in refusing to instruct'the jury that there was no evidence of undue influence. It must be borne in mind that the first will was a fairly equitable division of the testator’s property among his children. This was in accordance with the natural affection which every father is supposed to have for his offspring. There is no evidence that any influence was exercised over Mr. Rivard in the execution of that will, or that there was then any alienation of affection between him and any of his children. If the case had been tried upon the theory that this will was valid, and must stand, although it were established that the codicils were invalid on account of undue influence or inconipetehcy, a different and important question, upon which we find no decision by this court, would have been presented. It was, however, presented to the court and jury upon the theory that the execution of a codicil is a re-execution of the entire will, and that, if there was such undue influence or incompetency as would invalidate the codicils, it would invalidate the entire will. All through the trial the original will and the codicils were referred to as one will. No request was made to instruct the jury upon this theory. It was raised in this court for the first time. Cases will be reviewed by the appellate courts upon the points and theories presented to the nisi prius courts. No better illustration of the justice of this rule can be found than the present case. Had the proponents desired to make this issue, it was their clear duty to have done so in the court below. We therefore refrain from discussing this question, or commenting upon the authorities cited.

Soon after the execution of the original will, Mr. Rivard commenced, by codicils, to diminish the shares of some and increase those of others, until finally, by these codicils and deeds of conveyance, he had practically disinherited all but Paul and Ephraim, and left to them almost the entirety of a property worth between $250,000 and $400,000. Some of those whom he thus disinherited were in more need of his bounty than Paul and Ephraim, because they were less able to take care of themselves, and were possessed of less property. Every person will naturally say that some good reason, must be found to account for such a disposal of a large property by a parent. Undue influence is not exercised openly. Like crime, it seeks secrecy in which to accomplish its poisonous work. It is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control. Marx v. McGlynn, 88 N. Y. 357; Hartman v. Strickler, 82 Va. 237; Porter v. Throop, 47 Mich. 324. It is unnecessary in this case to go to the extent of the holding in Marx v. McGlynn and Hartman v. Strickler, to the effect that the presumption of undue influence arises from the fact that the will is in disregard of a parent’s natural affection. Ephraim lived at home, with his father, for about five years before his death. Paul was a frequent visitor, and in consultation with him. There is evidence on the part of the contestants that Mr. Rivard made remarks against his son Charles after his interviews with Paul, and spoke about fixing matters differently. The learned circuit judge submitted this question to the jury, and, upon a motion for a new trial, refused to disturb the verdict. ■ We think he was correct, in that there was substantial evidence for the consideration of the jury.

Three witnesses, named Lodewyck, Prech, and Gore, testified that, in their opinion, Mr. Rivard was of unsound mind. The objection made to the inquiry propounded to Lodewyck and Prech was that it was “incompetent, and any inquiry as to his mental soundness or unsoundness must be confined to the time' the will was made, and the codicils.” Under this objection, counsel can now complain only of the second reason for their objection. The objection that it was ‘ ‘ incompetent ” is too indefinite. The term includes many reasons which counsel might have had in mind, but which were not apparent to the court.

In Ward v. Ward, 37 Mich. 258, the objection made was that the question was “incompetent, irrelevant, and immaterial.’.’ The court said:

“The ground of the objection was not stated at all, and, considering the circumstances, the point now urged was not so obvious as to probably occur to the judge’s mind on the tender of a general objection. The plaintiff in error is therefore not entitled to insist on the ground here taken.”

In Stevens v. Hope, 52 Mich. 65, it is said:

“Objections made in this form are not entitled to notice, unless it happens that the true point of objection is too palpable to call for anything more definite.” See, also, Brown v. Weightman, 62 Mich. 557; Seventh-Day Adventist Pub. Assn. v. Fisher, 95 Mich. 274.

Counsel cannot now raise the point that these witnesses had not shown sufficient facts and knowledge upon which to base an opinion.

To similar questions propounded to the witness Gore, the specific objection was made that he had not shown sufficient knowledge on his part to give an opinion. We are all of the opinion that this witness’ testimony was competent. He had described looks and actions and language inconsistent with a normal state of mind. We deem it unimportant to state his testimony.

Dr. Johnson, a medical expert upon insanity, was produced as a witness for the contestants. A very long hypothetical question was propounded to him. It assumed the existence of certain facts, as all such questions do, which contestants claim they had given testimony to prove. After the statement, the question was, “What have you to say as to the mental condition of this man, from the time of his wife’s death down to' his death?” The answer was, “The history seems to be that of an insane person, so far as I can judge from the question.” After this was answered, a second question was propounded, asking for the witness’ opinion whether Mr. Rivard was “capable of comprehending his moral obligations to others, and the proper objects of his bounty; the relations of his children and grandchildren to him; the situation and disposition of his property so as to bold these in mind; bis obligations to others; his consideration of the objects of his bounty; his property, and the extent of it,—so as to be able to make this will and these codicils of his own understanding.”

It is now urged that this question was incompetent because it includes certain facts which are indicative of sanity, rather than insanity, and that the jury were given to understand by the question that they were inserted as indicative of insanity. No such objection was made upon the trial, and it will not now be considered by us. The court, of its own motion, did modify some of the hypothetical statements, which were eliminated from the question. If counsel for proponents objected to other statements, .they should have called the attention of the court to them. The usual and better practice is to first introduce all the evidence to support the assumed facts stated in the hypothetical question. If, however, after the close of the testimony, it be found that such question contains assumed facts which there is no evidence to support, opposing counsel should move to have the answer stricken out, and excluded from the consideration of the jury. Wilkinson v. Spring Works, 73 Mich. 418. The competency of such questions is too well established to be now questioned. The duty of the trial judge is to limit the question to those facts which, if the jury find them to be true, are indicative of insanity. The hypothetical question in this case included the facts which the contestants had given evidence tending to sustain.

The second question was attacked in the court below, and is attacked here, upon the ground that it included moral obligations, and that it is of no consequence whether Mr. Rivard did or did not understand his moral •obligations to others. It is insisted that the question and answer related to the moral incompetency of the testator, -and not to his mental incompeteucy, which is the test. The word was evidently not used in regard to the moral character of the testator, or his moral obligations to his neighbors in the business transactions of life. It related to the obligations which a parent owes to his children. He was under no legal obligation to devise his property or leave it to his children who were of age. Certainly, as to those who were not of age, it would not be inappropriate to say that a father owes a moral obligation to his children to provide out of his property the means for their support and education. The term was used with reference to his obligations to his children. The jury could not well have understood it in any other light. There is precedent for its use in this connection. The lord chief justice, in Banks v. Goodfellow, L. R. 5 Q. B. 549, says:

“Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become pervérted by mental disease; if insane suspicion or aversion take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition due only to their baneful influence,—in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”

The rigid cross-examination elicited many things favorable to the proponents, and gave the jury all the essential information for their consideration in determining how much weight they would give to the opinion of the expert. There was no error in admitting this testimony.

The court did not err in refusing to instruct the jury that the expert testimony in this case was uncertain and unreliable, and that but little weight should be given to it. People v. Seaman, 107 Mich. 348.

Testimony was introduced by the contestants to show that Mr. Rivard became angry at some of his boys, and sent them away from home, telling them to leave, and “go and eat mad cow.” A Mr. Willemin was sworn for the proponents, and testified that he was a lawyer of 44 years’ practice, 20 years nfithis country, was brought up in Paris, a graduate of the French University, and acquainted with the idioms of the French language; that the French expression for the above is, “Mangé de la vache enragéj” that it was an expression much used in France, especially among the country people. “It means the same as, ‘You go and have a hard time.’ Suppose I should tell you the story of my life, and was in Australia part of the time, and fared very bad in that country; I would tell you, J’ai mangé de la vache enrage.’’ It means you have the hardest time one can ask, to endure hardships.”

On cross-examination the witness was asked, “Would you use it to your own children?” He answered under objection and exception. It was probably not proper cross-examination. It had no relevancy to the subject-matter of his testimony in chief. It would, however, be a reflection upon the intelligence of any jury to hold that they could be misled or prejudiced by the answer, which was: “No; I would not, myself.” Judgments should not be set aside for such trivial errors.

The principles governing the main question in this case have been so frequently and fully discussed in the decisions of this court that we deem it unnecessary to traverse the ground again. To do so would be supererogation. The former distinguished jurists of this court have ably expounded the rules and cited the principles governing all the questions raised. Some of the leading cases are Beaubien v. Cicotte, 12 Mich. 459; McGinnis v. Kempsey, 27 Mich. 363; Fraser v. Jennison, 42 Mich. 231; Kempsey v. McGinniss, 21 Mich. 123.

Apart from the question of undue influence, which has already been disposed of, the theory of the proponents is that the record contains no evidence of general incompetency, the result of senile dementia or general insanity, or of an insane delusion which affected the testamentary capacity of Mr. Rivard. Counsel urged, and requested the court to so charge, that Mr. Rivard was competent to attend to his business affairs, to make deeds, leases, and contracts, and was therefore competent to make a will, for the reason that it requires less capacity to make a will than to execute deeds and contracts. If the alleged incompetency depended upon senile dementia or general insanity, counsel’s contention, under the instruction of the court as to his competency in this regard, would be correct, and the court should have directed a verdict for the' proponents. This rule is settled, not only by the authorities in Michigan, but is recognized by courts generally. The difficulty with this contention is that it does not apply to this case, and the court eliminated it from the consideration of the jury by instructing them that Mr. Rivard was competent to do all these things, and that that competency continued to the end of his life. Counsel ignore the other well-settled rule,—that, while a man may be possessed of such capacity, he still may be unable to execute the will in question, on account of some delusion which has beclouded or taken away his judgment in regard to those who are the natural objects of his bounty. If a testator disinherits a daughter upon the belief that she is a bad woman or that she is not his own offspring, or a son upon the belief that he is a drunkard, or his grandchildren upon the belief that his son-in-law has threatened to kill him, and'it appears that there is no foundation in fact for any such beliefs, and they are shown to be mere delusions, a will disinheriting such children and grandchildren is. void, notwithstanding he was entirely sane upon every other subject, and fully competent to manage his business affairs. Justice Cooley makes the distinction clear in his able opinion in Fraser v. Jennison, supra, at page 231:

“ When the monomania is conceded, it is only necessary to inquire further whether the provisions of the will are or are not affected by it, and the will stands or falls by that test. [Citing a large number of authorities.] A man may believe himself to be the Supreme Ruler of the Universe, and nevertheless make a perfectly sensible disposition of his property; and the courts will sustain it, when it appears that his mania did not dictate its provisions.”

The converse of the proposition is true,—that where the monomania or delusion does dictate its provisions, and rer suits in the disinheritance of the subjects of the delusion, whom he would otherwise remember in his will, it cannot stand. We are not dealing with a testator who has no children, but only collateral heirs, to whom he owes no duty, legal or moral, but with a parent, whose disinheritance ought, in the common sense of mankind, to be based upon some good reason. For this reason the court rightly’ instructed the jury that they might consider the terms of the'will, in connection with the other evidence, in determining the question of the monomania or delusion. This is peculiarly true of the present case. These codicils present some peculiar features, which indicate a loss of memory and an unstable character. There were only 2 weeks between the second and third; 17 days between the eighth and ninth; 5 days between the tenth and eleventh; the third and fourth were made upon the same day; the eighth and ninth are identical in language. We find no satisfactory explanation of the execution of these two codicils within a few days of each other. By the sixth codicil he took away from his children all control of his funeral, burial, and selection of his grave and the erection of a monument, and committed it to his attorney, Mr. Ward. He disinherited his youngest daughter. If the testimony of the contestants is worthy of belief, he was under the insane delusion that she was an inmate of a house of ill. fame.

There is no shadow of a reason shown for this belief. If the jury found that this insane delusion was the cause of his disinheriting her, it alone would be sufficient to invalidate the will. Haines v. Hayden, 95 Mich. 332. The delusion in that case was that his wife was unfaithful to him, and that Alice, the daughter who was disinherited, was not his own child.

It was said in McGinnis v. Kempsey, “If a party makes a will contrary to natural justice, this, with other facts, may be considered.” The testator’s daughter Rose was about 12 years of age when her mother died. The evidence for contestants showed that she assumed the mother’s place in the household; did most of the work; she and her little sister milked the cows, and brought water from the lake, several hundred feet away; that she was faithful, obedient, and uncomplaining; that her lot was a hard one; that she did work which no father, possessed of the property which her father had, ought to ‘permit a daughter to do. Nothing occurred to estrange him from her until her marriage with Lodewyck. There is no evidence that he had any ill will towards Pauline, Lodewyck’s first wife. Either from an unfortunate marriage, or from other causes, the mind of his daughter Archange had become unbalanced, and after she left her husband her father took her to an asylum for care and treatment. The common sense of mankind condemns, as contrary to natural justice, a will which practically disinherits such children, and leaves the bulk of a large fortune to two who have done no more than they to deserve it, and are better able to meet the vicissitudes and struggles of life; and courts and juries have the right to take that fact into consideration, in determining the competency of the testator to make the will.

The delusions claimed to directly affect the will are his belief that his daughter Julia, whom he totally disinherited, was an inmate of a house of ill fame; that Charles was a drunkard; and that his son-in-law Lodewyck, whose children he left with a mere pittance, and that tied up with harsh restrictions, had designs upon his life. So far as disclosed upon this record, there was not the slightest foundation for his belief in the unchastity of his daughter or the designs of Lodewyck. There is evidence from which it may be reasonably inferred that he had some foundation for his belief in the habits of his son Charles. Charles, however; was a witness, and the jury had a better chance to judge as to the foundation for his father’s treatment, and whether his belief amounted to a ^delusion.

The evidence of the contestants tends to show a marked change in the habits and character of Mr. Rivard after the death of his wife; that he was afraid of her spirit; that he made his sons and the hired man sleep in the sitting room for some time, all having beds on the floor; that they slept with guns by their sides; that he said to his sons, “Your mother might come, and we had better sleep on the floor; ” that he told them to sleep on their backs, so as to listen, for fear she would come, and told them to be ready to grab their guns to shoot if she should come; that he hung sleighbells across the windows; that he attended to the calls of nature in the room at night without using any convenience; that he was accustomed to sit upon his haunches in the house and in the fields, and along the fences; that he exhibited cruelty towards his dumb animals, so extreme and revolting as to be inconsistent with a sane mind; that he sometimes wore summer clothes in winter, and winter clothes in summer; that he sometimes slept with a flannel shirt or drawers tied about his neck, for fear that one of his daughters would cut his throat; and that he furnished diseased meat to eat. Now, while some of these peculiarities would not, of themselves, show incompetency to make a will, still they were important side lights to aid the jury in determining the main issue in the case. Bitner v. Bitner, 65 Pa. St. 347. It is just to here remark that the testimony of the proponents was in flat contradiction to most of the testimony on the part of the contestants, and, if the jury found that the facts testified to by the proponents’ witnesses were true, Mr. Rivard was undoubtedly competent to execute the will, and the will should have been sustained. But these questions of fact were exclusively within the province of the jury, and they have settled them against the proponents. The charge was very clear in presenting the issue to them, and defining the rules by which they were to be governed. We find no error in the instruction given, or in the refusal to give the requests on behalf of the proponents which were refused.

The refusal to submit the special questions numbered 4 and 5 has not been argued by counsel in their briefs, and therefore will not be considered.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CODD v. WAYNE CIRCUIT JUDGE.
    Mortgage—Foreclosure—Substitution oe Parties.
    Under Chancery Rule No. 125, providing for the substitution of the assignee of a chose in action as complainant in a chancery suit instituted by his assignor prior to the assignment, a junior mortgagee, on paying to the prior mortgagee the amount of the decree obtained by him in a suit to foreclose his mortgage, is entitled to be substituted as complainant in such suit, although he was originally made a defendant, therein, and although the decree has been enrolled.

      Mandamus by George O. Codd and Henry Plass to compel William L. Carpenter, circuit judge of Wayne county, to vacate an order substituting the Wayne County Savings Bank as complainant in a suit in chancery.
    Submitted March 24, 1896.
    Writ denied March 31, 1896.
    Chancery Rule No. 125 is as follows:
    “Whenever the complainant in a chancery suit, wherein the right is, under existing rules of law and equity, assignable, shall have transferred his interest in the subject-matter of the litigation, either voluntarily or by process of law, the suit shall not thereby be abated, but the transferee may present his petition to the court in which said suit is pending, setting up the fact of such transfer, and asking to be substituted as complainant in said suit. The facts, if they do not appear from the records of the court, shall be verified by the affidavit of the party or of some other person. If, at the hearing, it appear to the court that such transfer has been made, an order shall be made substituting the transferee as complainant in said suit, and said suit shall continue for the benefit of said transferee as though no transfer had been made,” etc.

      Henry Plass, for relators.

      Moores & Goff, for respondent.
   Moore, J.

James C. Macklin commenced proceedings in the Wayne circuit court, in chancery, to foreclose a mortgage made by Mary C. Seitz, and made the Wayne County Savings Bank and George C. Codd and Henry Plass defendants. The bank held a second mortgage on the property covered by the Macklin mortgage. Codd and Plass held title to the property covered by the mortgage, by virtue of an execution sale against Mary C. Seitz, made by the sheriff subsequent to the making of both of the above-named mortgages. A decree was rendered in favor of complainant, Macklin, and the proceedings were enrolled. The amount named in the decree drew 10 per cent, interest. February 19, 1896, more than three months after the property described in the mortgage could have been advertised for sale, the bank paid to Browse T. Prentis, solicitor for the complainant, Macklin, the amount of the decree and interest to date, and demanded an assignment of the bond and mortgage, the same not having been filed in the case, and also an assignment of the decree. The money was accepted by Prentis, but an assignment of the decree and bond and mortgage was refused. A petition was immediately filed by the bank, setting up the fact of the payment of the decree, the demand for an assignment, and asking to be substituted as complainant in the foreclosure suit. The hearing of the petition was duly noticed, and answers were filed by Codd and Plass and Prentis. The case was heard by the circuit judge, who made the order of substitution prayed for in the petition, and, on granting said order, filed a written opinion, reading as follows:

“Under the authorities cited, the Wayne County Savings Bank is clearly the equitable assignee of the complainant. The only question is whether Rule No. 125 gives such equitable assignee the right to be substituted as complainant. ■ I am unable to see any reason justifying me in saying that said rule does not apply to equitable as well as other assignees. Clearly, the complainant has transferred his interest in the subject-matter of the litigation, and the Wayne County Savings Bank has acquired it. That disposes of the case. I am unable to see how the rights of the defendants are in any way prejudiced. There is a decree ordering the property to be sold. Whether that decree is enforced by the complainant or by the Wayne County Savings Bank could make no difference to them. It is urged that they are prejudiced by reason of the fact that they do not know how much of the surplus will be taken by the second mortgage, viz., the mortgage heretofore held by the Wayne County Savings Bank. Of this they can readily inform themselves, and, moreover, that is a question which will be adjudicated on the application respecting the surplus. The motion must therefore be granted.”

The relators ask this court to set aside the order made by the circuit judge.

We think this case is one coming within the provisions of Chancery Rule No. 125, and that the order made by Judge Carpenter should stand.

The writ is denied.

The other Justices concurred.


author: Long, C. J.

text:
    CITY OF LANSING v. LANSING CITY ELECTRIC RAILWAY CO.
    1. Street Railways—City Ordinance—Paving Between Tracks.
    A street-railway company which acquires the right to use the streets oí a city under an ordinance providing that such company, in constructing its tracks along any streets or avenues that are paved, shall pave between said tracks with the same material as that adjoining them, and that, if the city shall pave any street occupied by such company, the company shall contemporaneously pave within its tracks with the same material, is bound, on a change by the city in the material used in the pavement of a street, on request of the city authorities, to pave between its tracks with the new material used in the street adjoining them.
    2. Same—Mandamus.

      Mandamus will lie to compel a street-railway company to comply with an order of the common council to repave the street between its tracks as required by the ordinance under which it received its franchise. '

      Certiorari to Ingham; Person, J.
    Submitted January 10, 1896.
    Decided April 21, 1896.

      Mandamus by the city of Lansing to compel the Lansing City Electric Railway Company to pave with brick between its tracks. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Russell C. Ostrander, City Attorney, for relator.

      Jay P. Lee, for respondent.
   Long, C. J.

In June, 1895, a petition was filed in the Ingham circuit asking an order against the respondent to show cause why mandamus should not issue requiring it to pave with brick that part of Washington avenue, in the city of Lansing, from Kalamazoo street south to the bridge across Grand river, lying between the rails of its track, and on each side of its track, to the end of its ties. In answer to an order to show cause the respondent made return, and on the hearing in the circuit court that court determined that the respondent should pave with brick such portions of the street between its tracks, and denied the mandamus to compel it to pave that portion outside its tracks. The case comes to this court by writ of certiorari upon behalf of the respondent. The errors claimed are—

1. That mandamus is not the proper remedy.

2. In ordering the mandamus to issue to compel the paving between the tracks.

It appears that prior to the organization of the respondent company the Lansing City Railway Company was organized, and obtained certain privileges and franchises from the city of Lansing, in 1886, under Ordinance No. 61 of the Public Ordinances of-said city. Under this ordinance the company had the right to construct, maintain, and operate a street railway by electricity. The respondent is the successor of that company, having obtained all its rights, privileges, and franchises, and is operating by electricity its railroad within the city of Lansing.

Section 12 of Ordinance No. 61 provides:

“The common council hereby reserves the right to' make such further rules, orders, and regulations as may from time to time be deemed necessary to protect the interests, safety, welfare, or accommodation of the public in relation to said railway, not inconsistent with the provisions of this ordinance.”

Section 15 provides:

‘ ‘ Said railway company, in constructing its tracks along any streets or avenues that are paved, shall pave between said tracks with the same material as that adjoining said tracks. If the city shall provide for the paving or grading of any street or repairing of any of the bridges occupied by said company, the said company shall contemporaneously with the paving or grading of streets or repairing of bridges, at its own expense, pave, grade, or repair within said railway company’s track with the same material, or with material and in a manner satisfactory to the common council, and at all times keep or cause to be kept such pavement or bridge planking within said track in good repair.”

When the Lansing City Railway Company’s tracks were first constructed along Washington avenue, said avenue was paved with cedar blocks between Kalamazoo street and the bridge crossing Grand river. The company used the same material between its rails along Washington avenue, between these points. In 1892 the Lansing City Railway Company passed into the hands of a receiver, and, while the road was under his control, permission was granted him to lay T rails upon all its lines in the city, upon condition that the company pave between its rails under the supervision of the city engineer, and subject to approval. That permission from the council reads as follows:

“ Resolved, by the common council of the city of Reusing, February 19, 1892, that the street railway company be and are hereby permitted to lay a T rail on their lines within the' city limits: Provided, they pave to the rail, so as not to interfere with the carriage, wagon-, or sleigh traffic of the city, and to be under the supervision of the city engineer, and subject to approval.”

The respondent began the relaying of its entire line, rising the T rail, and, though remonstrated with by the council, it laid cobblestones between its rails on that portion of the street here in controversy. - On July 30, 1894, a resolution was passed by the common council as follows:

“jResolved by the common council of the city of Lansing that, whereas, it has been deemed a necessity by this council that Washington avenue south should be paved with brick from the north side of Kalamazoo street south to Grand river; and whereas, the franchise of the Lansing City Railway provides that they shall contemporaneously with the paving of any street, at their own expense, pave with the same material all that portion of said'street that lies between their tracks and so far on either side as may be disturbed by the laying or relaying of their ties: Therefore, be it resolved that the mayor and city clerk notify the officers of the Lansing City Railway in writing that they are hereby required to pave that portion of said Washington avenue that should be paved by them under their franchise, at the same time and with the same material that the balance of the street is to be paved with.”

Notice of this resolution was served upon the railway company. The company refused to pave within its tracks with brick.

Upon the hearing of the case in the court below, it was contended by counsel for the respondent that the ordinance above quoted contains no provision for repaving the street, and that, under the terms of the ordinance, it is required only, in laying its track in any street which is paved, to pave, when the track is laid, with the same material as that upon the street, and thereafter to keep such pavement in repair; that if the track is laid in a street which is not paved, and the city afterwards paves that street, then, by the terms of the ordinance, it is required to pave with the same material that the city uses, and at the same time, and after that to keep the street used by the roadbed in repair; that under no circumstances is it bound to repave any portion of the street, except by way of repair merely, and in such repairing it is not required to lay or use other material than that which had before been used by it in paving between the tracks. The circuit judge did not agree with counsel in this contention, but held that the company was bound to repave with the same material that the city used.

We think the court below was correct in this interpretation of section 15 of the ordinance. The Lansing City Rail- ' way Company obtained all its rights to lay its tracks upon the streets of the city of Lansing under and by virtue of Ordinance No. 61, and, by the terms of section 15 of that ordinance, it is bound, whenever the city shall lay a pavement, either originally or in repaving, to lay a pavement of similar material within the lines of its rails, when the common council shall so determine. This section could not be so construed as to permit the company, when it has once paved within its tracks, to continue that character of pavement for all time, whatever pavement the city might conclude to lay upon the street outside the rails. We think the ordinance was intended to require the railway company to pave or repave between its tracks with a substance of like character as the city might use in paving outside the tracks, whether the city was paving a street for the first time or was repaving it.

The company, for the purpose of operating its road by electricity, asked to have the right to lay a T rail. This permission was given upon condition that the company pave between its tracks under the supervision of the city engineer, and subject to approval. The city council undoubtedly had in mind the terms of section 15 of Ordinance No. 61, and that by its terms the respondent would be compelled to relay its pavements with like material as the city might use when it paved or repaved a street. This is the plain intent of section 15, and the respondent is bound to comply with its terms.

The point that mandamus is not the proper remedy has no force. It was the plain duty of the railway company, when ordered by the council to repave with brick between its tracks, to comply with the resolution. City of Detroit v. Ft. Wayne, etc., R. Co., 95 Mich. 456.

The order made by the court below, directing the performance of this duty by respondent, must be affirmed.

The other Justices concurred.


text:
    REED v. JOURDAN.
    1. Equity Pleading—Defenses.
    The answer to a bill in chancery must apprise the complainant of the nature of defendant’s case, and the latter cannot avail himself of any matters in defense which are not stated in his answer, even though they should appear in his evidence.
    2. Fraudulent Conveyances—Bill by Administrator—Decree.
    In a suit by an administrator under section 5884, 2 How. Stat., to set aside a deed executed by the decedent as in fraud of creditors, the court entered a decree vacating and setting aside the deed. Held, that the defendant should have been permitted, upon the payment of the claims against the estate and of the costs of the proceedings in the probate and circuit courts, to retain the land, subject to the widow’s dower interest therein.
    Appeal from Ottawa; Paclgliam, J.
    Submitted January 10, 1896.
    Decided April 21, 1896.
    Bill by Theopbilus M. Reed, administrator of tbe estate •of Joseph Jourdan, deceased, against Perley Jourdan, to set aside a deed as in fraud of creditors. Prom a decree for complainant, defendant appeals.
    Modified and affirmed.

      Louis P. Ernst (George A. Farr, of counsel), for complainant.

      Stephen H. Clink, for defendant.
   Long, C. J.

Tbe bill in this case was filed under tbe provisions of section 5884, 2 How. Stat., by the complainant as administrator, to set aside a deed made by tbe deceased in his lifetime to tbe defendant, as a fraud upon tbe creditors of tbe estate.

Tbe statute provides that—

“When there shall be a deficiency of assets in the hands of an executor or administrator, and when the deceased shall, in his lifetime, have conveyed any real estate, or any right or interest therein, with the intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or shall have so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator may, and it shall be his duty to, commence and prosecute to final judgment any proper action or suit at law or in chancery for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed,” etc.

The bill alleges substantially that the complainant was appointed administrator of the estate, and that no personal estate came into his hands; that claims against the estate to the amount of $666.82 were duly allowed by the commissioners on claims appointed by the probate court; that the report of said commissioners and allowance of said claims had been duly filed in the probate court; that more than 60 days had elapsed from such filing and allowance, and that no appeal had been taken from the same; that the probate court had ordered the payment of said claims; that more than 60 days had elapsed since the entry of such order, and said claims had not been paid or any bond given for such payment, and that such claims constituted lawful, liquidated, and adjudicated debts against said estate; that the expenses of administration would amount to about $75; and that there was no money or personal property of said estate to pay the same.

The bill further alleges that the real estate of the deceased was 60 acres of land in said county, inventoried and appraised at the sum of $1,200; that said lands were incumbered through the dower interest of the widow, and also a mortgage of about $250; that on December 31, 1891, and two days after the death of Joseph Jourdan, a deed of the north 40 acres was recorded from him to the defendant; that said deed was without consideration, and was delivered, if at all, but two days before the death of the deceased, and after the debts so found had been contracted, and was made with intent to defraud the creditors of the deceased; and. that the remaining 20 acres of land is wholly insufficient to pay said debts. The bill also alleges that complainant had been licensed to sell said lands, but, in consequence of the record of said fraudulent deed, could not do so.

The answer admits the appointment of complainant as administrator, and states that defendant has no knowledge of the amount of the personal property that came into the hands of the complainant. It alleges that many of the claims that were allowed against the estate were illegal and fraudulent, and were permitted to be approved and allowed by the complainant as such administrator; that the claim of $440 allowed to the widow was wholly fraudulent, and without foundation in fact or equity, and was well known so to be by the complainant at the time the same was allowed, but that complainant, instead of defending the estate against said fraudulent and dishonest claim, encouraged and advised the making of such claim, and fraudulently connived at the allowance thereof by the judge of probate; that the claim of D. Cleland of $46.23 was upon a note which was outlawed a long time prior to the allowance thereof, notwithstanding which the complainant made no defense or protest against such allowance, but, on the contrary, permitted such allowance, while knowing it to be illegal; that many of the other claims allowed against the estate were fraudulent and illegal, which fact was well known to the complainant; that the defendant would have appeared and defended against the allowance of said claims had he not relied upon the complainant to do his duty as administrator, and defend the estate against unlawful claims; that the defendant therefore denies that said claims constitute a lawful debt against the estate to the amount of $666.82, or to any other amount exceeding $100; and that, under the circumstances, the complainant is not entitled to receive any compensation because of his maladministration of the affairs of the estate. The answer further sets up that defendant neither admits nor denies the allegation of the bill as to the dower interest of the widow in the real estate in question. The answer then states:

“This defendant says that it is true that he caused a warranty deed to be recorded in the office of the register of deeds of the county of Ottawa, wherein and by virtue of which the deceased had in his lifetime conveyed to the defendant the 40 acres of land described in the bill, but that said deed was made and delivered without any corrupt or fraudulent purpose whatsoever, and and was accepted in absolute good faith by the defendant, and for a good and sufficient and due consideration.”

A replication was filed, and the proofs taken in open court.

The record states that—•

! ‘ The complainant’s counsel offered all the records and files in the probate court, including all the claims presented to the commissioners and their findings in the estate of the deceased.”

The record further states:

“It is admitted that the probate proceedings offered were legal in form; that the probate court had jurisdiction to appoint commissioners, and did so appoint; and that the files so offered contain, among other things, what purports to be a warrant to the commissioners, their report, and the order of the court thereon.”

The finding of the commissioners on claims shows the amount as stated in the bill of complaint. It purports to be signed by the two commissioners, and was returned and filed in the probate court August 17, 1892.

It appears from the testimony that no appeal was taken from the allowance of these claims, and that more than 60 days had elapsed from the date of the filing of the report of the commissioners on claims in the probate court before the present bill was filed. It was shown that there was no personal property from which these claims could be paid. It was further shown that two days before the death of the deceased, and after all these debts had been contracted, the deceased delivered to the defendant the deed in controversy. The deed purports to have been dated March 18, 1887, but it was retained by the deceased, and not delivered, until December 25, 1891. It was further shown that, at the time the deed bears date, the deceased was unmarried, but that, four days after that date, he married one Araminda Ferguson, who remained his wife until his death, and who still survives, and that she had no knowledge of the deed until after the death of her husband.

The court found from the testimony that, under the circumstances, the widow was entitled to her dower in the lands; and, further, that the deed was made without consideration, and with intent to hinder and delay the creditors of the estate in the collection of their just claims against him and his estate; and that the same was fraudulent and void as against his creditors, and against the claims so proved against his estate; and, in and by the decree, the court set aside and vacated the deed.

The defendant, upon the hearing, gave no satisfactory explanation as to the manner in which he obtained the deed, or that any consideration was paid therefor. He did introduce testimony tending to show that one of the commissioners did not sit while the proofs were being taken in the allowance of the claims, and that such commissioner’s name was signed to the report by the other commissioner. He also gave some' testimony tending to show that some of the claims were invalid, and now claims that the administrator did not object thereto, and did not protect the estate against their allowance.

The contention in this court is that the decree of the circuit court cannot stand:

1. Because it sets aside the deed absolutely and unconditionally.

2. Because only one commissioner acted in the allowance of the claims and making the report.

3. Because the complainant does not come into court with clean hands.

4. Because there is no showing that the probate court ever legally ordered these claims to be paid out of the property of the estate.

Upon the second proposition, we think the defendant cannot be heard here. There was no such claim set up in the answer. The answer does not deny the jurisdiction of the commissioners to act, nor does it deny the validity of their action. It admits that the claims set up are just to the amount of $100. The complaint is that the claims are unjust in themselves, and that the administrator did not do his duty in not contesting them. The rule in such cases is that, besides answering the complainant’s case as made by the bill, the defendant must state to the court in his answer all the circumstances of which he intends to avail himself by way of defense, for it is a rule that the defendant is bound to apprise the complainant by his answer of the nature of the case he intends to set up, and that he cannot avail himself of any matters in defense which are not stated in his answer, even though they should appear in his evidence. 1 Barb. Ch. Prac. 137. This rule is settled in this court in Van Dyke v. Davis, 2 Mich. 144; Smith v. Brown, Id. 161; Fosdick v. Van Husan, 21 Mich. 573; Smith v. Rumsey, 33 Mich. 189; Higman v. Stewart, 38 Mich. 519. In Smith v. Rumsey, supra, it was said:

“The proposition that the court is bound to adjudge according to the case shown and issues raised by the pleadings is so evident, and has" so repeatedly been expounded and applied in this State, that anything beyond a reference to it would scarcely be excusable.”

Complainant contends upon this point that, if for no other reason, this defense cannot be made, as the decision and finding of the commissioners cannot be impeached collaterally. We need not discuss this view of the case, being satisfied to rest our decision upon the ground that no such claim was set up in the answer.

The court below found upon the third and fourth points against the contention of the defendant, and we think properly, under the evidence.

We think defendant’s first point has some merit. The decree sets the deed aside absolutely. This, we think, should not be done, and that the defendant should have been permitted, upon the payment of the claims and the costs of the proceedings in the probate court and in the circuit court, to retain the lands subject to the widow’s dower interest therein. The decree will be modified to that extent, and provide' for such payments within 60 days of such claims and costs by the defendant; but, upon failure to pay the same within such time, the decree of the court below will stand affirmed. Neither party will recover costs of this court.

The other Justices concurred.


author: Hooker, J.

text:
    REGENTS OF THE UNIVERSITY OF MICHIGAN v. AUDITOR GENERAL.
    1. Construction of Statutes—Maxims.
    It is a general rule of construction that an act passed for a particular purpose is not abrogated by general legislation, sufficiently broad to include it, unless the intent to do so is clear, under the maxim, “ Generalia specialibus non derogant.”

      2. University Fund—Rate of Interest.
    2 How. Stat. §§ 5360, 5361, providing for the payment of interest on the university fund, impliedly adopted the rate of 7 per cent, per annum, being the legal rate of interest fixed by the general statute then in force, and said rate was not changed or affected by the amendments of 1887 and 1.891 reducing the legal rate of interest to- 6 per cent.

      Mandamus by the Regents of the University of Michigan against Stanley W. Turner, Auditor General, to compel the payment of interest on the “university fund” at the rate of 7 per cent.
    Submitted January' 28, 1896.
    Writ granted April 21, 1896.

      Hanchett & Hanchett (B.'F. Graves, of counsel), for relators.

      Geer & Williams, for respondent.
   Hooker, J.

Certain lands granted by the Federal Government to the State as an endowment to the State University having been sold by the State, the fund resulting therefrom constitutes the university fund. A similar provision exists for primary schools, while State land grants for the endowment of the State Normal School and the Agricultural College have resulted in funds for the support of these institutions. It is the custom of the State to pay interest upon such funds annually, the same having been paid from specific taxes. See Const, art. 14, § 1. Act No. 114, Laws 1845, provided for the payment of interest upon the primary school fund, at a rate therein specified, viz., 7 per cent. This act was repealed in express terms. See Rev. Stat. 1846, p. 736.

Rev. Stat. 1846, p. 216, § 8, provides for interest for the university and primary school funds in the following language:

“Upon all sums paid into the state treasury on account of the principal of the university or primary school funds, except where other provision is or shall be made by law, the treasurer shall compute interest from the time of such payment, or from the time of the last computation of interest thereon, to the first Monday of April in each and every year, and shall give credit therefor to the university or primary school interest fund, as the case may be, and such interest shall be paid out of the general fund.”

Laws 1847, p. 173, Act No. 107, makes provision for interest upon these funds from the annual state tax upon railroads. Laws 1851, p. 116, Act No. 99, § 10, provides for the payment of interest upon the various educational funds. See, also, Laws 1853, p. 85, Act No. 60; Laws 1855, Act No. 73; Laws 1857, Act No. 56.

Laws 1859, p. 397, Act No. 143, being 2 How. Stat. § 5360, provides:

“That the auditor general be, and he is hereby, required to credit to the university interest fund, interest from and after the thirty-first day of December, eighteen hundred and sixty, on the entire amount that has heretofore been, or may be hereafter, received by the State for university lands sold or contracted, and to draw his warrants upon the state treasurer for the same, who is hereby required to pay the same to the treasurer of the university upon his application therefor, from time to time, as the said interest may accrue, and be required for the use of the university.”

Section 5361 is as follows:

“The people of the State of Michigan enact, that upon all sums paid into the state treasury upon account of the principal of any of the educational funds, except where the provision is or shall be made by law, the auditor general shall compute interest from the time of such payment, or from the time of the last computation of interest thereon, to the first Monday of April in each and every year, and shall give credit therefor to each fund, as the case may be; and such interest shall be paid out of the specific taxes.”

Thus, it will be seen that at no time has the law fixed the rate of interest to be paid upon these funds in express terms, except by Act No. 114 of the Laws of 1845, which was repealed, as stated, the next year. During all of the time since 1845, up to the present year, 7 per cent, upon the several funds has been paid by the State, and, up to the year 1887, 7 per cent, has been the rate of interest established by the usury laws. In 1887 the general statute was changed, and the legal rate of interest upon money was then fixed at 6 per cent., where it has since remained. See Act No. 138, Pub. Acts 1887; Act No. 156, Pub. Acts 1891.

The relators ask a writ of mandamus, to compel the payment of 7 per cent, upon the university fund. The question before us is, therefore, a construction of the statutes referred to. It appears to be conceded that the several laws providing for the payment of interest upon the university fund contemplated its computation at 7 per cent., that being the legal rate. It is a general rule of construction that, where an act is passed for a particular purpose, it is not abrogated by general legislation, sufficiently broad to include it, unless the intent to abrogate it is clear, under the maxim, “ Generalia specialibus non derogant.” Earl of Derby v. Commissioners, L. R. 4 Exch. 226; Kidston v. Insurance Co., L. R. 1 C. P. 546; Conservators of River Thames v. Hall, L. R. 3 C. P. 419; Endl. Interp. Stat. § 223, and cases cited; Crane v. Reeder, 22 Mich. 322. This would seem decisive of this case, unless we are to say that the legislature intended that the legal rate should be paid upon the fund, whatever that rate might he. We think it more reasonable to say that, when those acts were passed, the intention was to pay interest at the then-existing legal rate, which was 7 per cent., and that the general statute was made a part of these several acts by reference, which reference must necessarily be implied, as there could be no other means of determining the rate intended. The rule in such cases is that such adoption does not include subsequent additions or modifications of the statute so taken, unless it does so by express intent, and that the repeal of the statute adopted will not affect its operation as a part of the statute adopting it. Schlaudecker v. Marshall, 72 Pa. St. 200; Nunes v. Wellisch, 12 Bush, 363; Knapp v. City of Brooklyn, 97 N. Y. 520; In re Main Street, 98 N. Y. 454; Allen v. Mayor, etc., of Savannah, 9 Ga. 286; U. S. v. Paul, 6 Pet. 141; Kendall v. U. S., 12 Pet. 524; Clarke v. Bradlaugh, 8 Q. B. Div. 69; Darmstaetter v. Moloney, 45 Mich. 621.

The latter case is as closely analogous to this as it could well be without raising the identical question before us. In that case the charter of the city of Detroit provided that “ the assessor * * * shall be, and is hereby, vested with the powers and duties of supervisors, as provided by the laws of this State,” etc. It will be noticed that this does not specially refer to any particular statute or statutes, but in a general way it adopts such as prescribe the duties of supervisors, and it cannot be doubted that the effect would have been the same had the words “as provided by the laws of this State” been omitted, as they would have been clearly implied. It might as well be said in that case that the legislature intended that the duties of the assessor should change, like those of supervisors, with changes in the law fixing the duties of the latter, as to say in this case that the legislature intended that the rate of interest to be paid upon the educational funds should change from time to time, with changes made in the usury laws, because the act providing for the payment of such interest failed to fix a specific sum as the rate to be paid, or to specifically mention the then-existing law fixing the legal rate of interest, which was unnecessary. This court held in the case cited that changes in the duties of supervisors did not affedt the assessor of Detroit, saying:

“The case falls under the rule that a piece of legislation for a particular city, which adopts, under general words of reference, a specific regulation in a separate general law, is not to be taken as adopting prospectively the future alterations in the provision of the general law so appropriated, unless the intent therefor is express or strongly implied.”

It is reasonable to suppose that the framer of the interest law had not in mind the question of interest upon educational funds, and, if he had, there is nothing to call attention to that subject in the bill or title; and while we do not say that this would be fatal to the bill, or exclude the respondent’s contention, if the intent were manifest, the construction here given to this act is in harmony with the spirit of the Constitution, which provides safeguards against concealed or unintended legislation.

These principles seem to us conclusive of the question, and the writ will issue as prayed, but without costs.

The other Justices concurred.


author: Montgomery, J.

text:
    WILLIAM WRIGHT CO. v. WAYNE CIRCUIT JUDGE.
    1. Judgment Creditor’s Bill—Officer’s Return—Motion to Set Aside.
    The basis for a judgment creditor’s bill is a return of execution nulla bona, which return, in the equity suit, is conclusive. Its falsity, however, may be shown by the defendant in the suit at law, in support of a motion to set the return aside.

      2. Same—Mandamus.
    The Supreme Court will not, by mandamus, at the instance of a judgment creditor, vacate an order of the circuit judge setting aside a sheriff’s return nulla bona on an execution, where the evidence on which such return was set aside would, if believed, show the return not to have been in accordance with the facts.

      Mandamus by the "William Wright Company to compel Robert E. Frazer, circuit judge of Wayne county, to vacate an order setting aside a sheriff’s return to an execution, and an order vacating the appointment of a receiver for one Thomas N. Eordyce.
    Submitted January 28, 1896.
    Writ denied April 21, 1896.

      Bowen, Douglas & Whiting, for relator.

      Griffin & Warner, for respondent.
   Montgomery, J.

Relator is a judgment creditor of William Y. Hamlin and Thomas N. Fordyce. This judgment amounts to $3,383. Relator caused an execution to be issued and placed in the hands of an officer, which was returned nulla bona. Thereupon a judgment creditor’s bill was filed, and a receiver appointed. The defendant Fordyce moved, in the suit at law, to set aside the return, and, in the equity suit, filed a plea setting up that he had a large amount of property subject to levy and sale on execution. These claims were supported by affidavits, and, on -the other hand, numerous affidavits were filed showing that the property referred to in the affidavit of Fordyce was incumbered to its full value. The relator also produced the affidavit of the deputy, sheriff who made the return, as follows:

“Immediately on receiving this execution, I caused to be mailed a notice, on a blank like the attached, to both William Y. Hamlin and Thomas N. Fordyce. In response to said notice, said Thomas N. Fordyce came into the sheriff’s office, and' said to me, in substance, as follows: That he had received the notice sent, and that neither Hamlin nor himself had any property out of which the execution could be made by levy. I requested him to point out any property he or Hamlin owned on which the execution could be levied, and he refused to do so, saying that he had none that anything could be realized out of. He also referred to the property he said he was supposed to own in Grosse Pointe, and told me that this property belonged to his wife, and had belonged to her for some time. Not being able to find any property, and on the strength of Fordyce’s statement, I returned the execution unsatisfied.”

This statement is denied by the affidavit of Mr. Fordyce.

The circuit judge set aside the return, and vacated the order appointing a receiver, and relator asks to have the two orders vacated.

The basis for a judgment creditor’s bill is a return of nulla bona, and in the equity suit the return is conclusive, and not open to attack. Albany City Bank v. Dorr, Walk. Ch. 317. But the defendants may move in the main case to set aside the return, and show its falsity. The only question here is whether the showing is such as to justify setting aside the return. The showing ought to be clear that relator was entitled to have the return sustained, to justify this court in interposing at this stage in the proceedings by the writ of mandamus. There were affidavits filed which, if believed, established the fact that the return was not in accordance with the facts, and that the defendant Fordyce had equity in realty sufficient to satisfy the relator’s demands many times. It is true, this showing was contradicted, but the court below had better means of determining the facts than we have.

Writ denied.

The other Justices concurred.


text:
    WHEELOCK v. AMERICAN TRACT SOCIETY.
    Wills—Trusts—Charitable Bequest—Indefinite Beneficiary.
    A testatrix devised her estate to her executors in trust, directing them, first, to apportion the same among certain designated charitable societies in such manner as they should deem proper, but further providing that, if they should think best not thus to appropriate the entire estate, the remainder should be paid to such “worthy poor girls” as they might select, to aid in their education, the executors to have full power as to the amounts to be paid and the times of payment. Held, that the provision for “worthy poor girls” was ineffective, and must fail, the trust not being fully expressed or clearly defined upon the face of the will, as required by 2 How. Stat. § 5578, subd. 5; and that the other provision, while not open to the same objection, was so inseparably connected with the void provision as to fall with it.
    Appeal from Calhoun; Smith, J.
    Submitted January 29, 1896.
    Decided April 21, 1896.

      Bill by Charles H. Wheelock, administrator with the will annexed of the estate of Sarah W. Wheelock, deceased, against the American Tract Society and others, to construe the will of the deceased. From a decree declaring void the residuary clause of the will, defendants appeal.
    Affirmed.
    The following is a copy of the will:
    “I, Sarah W. Wheelock, of the township of Athens, county of Bradford, and State of Pennsylvania, being of sound mind, do make and publish this my last will and testament. And, first, as to such worldly estate as it hath pleased God in His mercy to intrust me with, I dispose of as follows: I direct that all my funeral expenses be paid as soon after my decease as possible, out of the first moneys that shall come into the hands of my executors. And, as to the residue and remainder which shall remain in the hands of my executors, that the same may be applied to useful and charitable purposes, it is my will, and I hereby direct my executors, hereinafter named, to dispose of the money that may come into their hands from my estate, whether the same be from real or personal property, to such charitable and Christian purposes as hereinafter named, in such sums and portions as, in their discretion, they shall think proper and right; and for such purposes I do hereby give and bequeath to Moses W. Wheelock and Mrs. Charlotte Fairbanks (my executors, hereinafter named) all my property, of whatever kind or nature, in trust and for the uses hereinafter set forth; that is, to pay the same to .the ‘American Board of Foreign Missions,’ to the ‘American Tract Society,’ to the ‘American Home Mission,’ and to the ‘American Female Guardian Society,’incorporated by the legislature of New York in the year 1849. And should my executors think it best to appropriate a portion of the moneys which may come into their hands, which shall not be expended and paid as hereinbefore set forth,—and as to the amount to be paid, or sums to be distributed, to each, I leave entirely to the judgment and discretion of my executors to act in this respect as they shall think right,—it is my wish and desire, and they are hereby directed, to pay to such worthy poor girls, to aid in their education, such sums as shall not be expended or paid as hereinbefore provided; said donees to be chosen by my executors, they having full power as to the amounts to be paid, and the times of payment, appropriating the same as their goodness and judgment shall dictate. I give and bequeath the best of my wardrobe to Mrs. Charlotte Fairbanks. And I hereby nominate, make, and appoint my beloved brother, Moses W. Wheelock, my executor, and my friend, Charlotte Fairbanks, my éxecutrix, to this, my last will and testament.
    “ In witness whereof, I have hereunto set my hand, to this, my last will and testament, written on one sheet of paper, A. D. March 25th, 1858.
    “Sarah W. Wheelock. -
    “Signed by Sarah W. Wheelock in our presence, as her last will and testament:
    “H. W. Patrick.
    “N. C. Harris.”

      Hulbert & Mechem, for complainant.

      Swayne, Swayne & Hayes, for defendants.
   Hooker, J.

The complainant is administrator with the will annexed of Sarah W. Wheelock, and files this bill to obtain a construction of the will, a copy of which is appended. This will was made when the testatrix was a resident of Pennsylvania, and her estate was administered nearly to the point of distribution before the will was discovered. The persons named in the will as executors died before the will was discovered,—one before the death of the testatrix, and one after. The estate consists of real estate, there being little personal property, and this will be required to pay the expenses of the administration. The circuit judge held the provisions of the will void.

The complainant contends that the will is inadequate to the creation of a trust, while the four corporations mentioned seek to uphold its validity. This must depend upon two questions:

1. Does the will comply with subdivision 5, § 5573, 2 How. Stat.?

2. If so, does it fail by reason of the death of the trustees named in the will?

Whether or not this trust is fully expressed and clearly defined upon the face of the instrument creating it, as required by subdivision 5, § 5573, 2 How. Stat., must depend upon the construction of this will. It is agreed by all parties that the provision for “poor and worthy girls” is ineffective, and must fail. So far as that provision is concerned, the trust is not fully expressed or clearly defined. On the other hand, the provision for the four societies is not open to that objection, and may stand unless it is inseparably connected with the other provision, and must fall with it.

A similar will was considered in the case of Tilden v. Green, 130 N. Y. 29 (27 Am. St. Rep. 487), where this interesting question will be found elaborately discussed. In that case the residuum of the estate was devised in trust, to be devoted to some objects to be worked out through a prospective corporation, which the trustees were authorized to cause to be created, if possible, but subject to the power of the trustees to divert the fund, or any part of it, from that object, and apply the same to general charity, if they deemed it inexpedient or the corporation should not be organized. The court held that the will indicated that the testator had in view one general scheme of charity, and that all the provisions of the will were inseparably connected, and must fall, inasmuch as some of them, like the provision for “poor girls” in this will, were vague and indefinite, and inasmuch as the will designated no beneficiary who might enforce the trust. The attempt to maintain that the Tilden trust was the primary object of the testator’s bounty was similar to the claim made here that the four societies were intended to be the first objects to be considered.

We do not fail to note the distinction urged by counsel that this will indicates that some provision, be it never so small, was, by the terms of this will, assured to these societies, or one of them; but if this can be said to be so, in view of the fact that the “poor girls” were mentioned, and of the statute (2 How. Stat. § 5616), we are still impressed by the fact that the testatrix apparently intended that the interests of the “poor girls” should be weighed by the trustees before determining how the estate should be divided. As said in the Tilden Case: How could the trustees, charged with the imperative duty of devoting the estate to charitable purposes, consider the question whether they should give the four societies anything, or (if, as contended, each was entitled to something) more than a nominal sum, without taking a complete view of the whole field of charities embraced within the provisions of the will? We think the case is within the rule maintained in the Tilden Case, and that the view taken by the learned circuit- judge was correct, and that the decree should be affirmed. The other question need not be discussed.

Decree affirmed.

The other Justices concurred.


author: G-bant, J.

text:
    PEOPLE v. KNOPF.
    Intoxicating Liquors—Evidence. -
    A conviction of keeping a place and saloon -where intoxicating liquors were sold as a beverage, in violation of the local option law, is sustained by evidence of the selling, and that the premises occupied by the accused contained the fixtures, surroundings, and furniture usually found in an ordinary saloon, and never in a drug store, although no evidence was offered that he was not a registered pharmacist. People v. Berry, 107 Mich. 256, followed.
    Exceptions before judgment from Hillsdale; Lane, J.
    Submitted January 31, 1896.
    Decided April 21, 1896.
    George Knopf and Fred Knopf were convicted of violating the local option law.
    Affirmed.

      W. D. Fast, for appellants.

      Guy M. Chester, Prosecuting Attorney, for the people.
   G-bant, J.

The conviction in this case should be affirmed. It falls directly within the rule of People v. Berry, 107 Mich. 256. The fixtures,- surroundings, and furniture were such as all know are found in the ordinary saloon, and are never the accompaniments of a drug store. The statement in the record is that—

“The people gave evidence tending to prove that the defendants sold intoxicating liquors as a beverage, and kept a saloon and place where intoxicating liquors, namely, lager beer and whisky, were kept for sale as a beverage, as alleged in the information, to such persons as applied for them, and that there was a pool, billiard, and card table in the room, and soft drinks were sold therein.”

The respondents introduced no evidence.

We said in the Berry Case:

“The testimony taken disclosed the situation and character of an ordinary saloon, and there was enough testimony to make a prima facie case that the respondents were not engaged in the business of keeping a drug store, and was sufficient for the jury to find that the respondents were not druggists.”

We held this sufficient aside from the evidence that they had filed no druggists’ bonds.

Conviction affirmed.

The other justices concurred.