text:
    BROWN v. PARKER.
    Surveys—Swamp Lands—Boundaries—Meander Lines—Hunting—Injunction.
    Where marshy land adjacent to one of the Great Lakes was surveyed by the general government, being bounded by the meander line of the lake, and was afterwards conveyed to the State under the swamp-land act, and by the State to a private purchaser, the character - of such territory as land, and not as a part of the bed of the lake, is conclusively established, and the purchaser owns an absolute title up to the meander line, and may enjoin the hunting of game within the limits of his ownership.

      Appeal from Monroe; Kinne, J.
    Submitted January 9, 1900.
    Decided July 10, 1901.
    Bill by Harvey H. Brown and others to enjoin John Parker and others from hunting on complainants’ land. From a decree for complainants, defendants appeal.
    Affirmed.

      E. T. Wood (Willis ' G. Clarke, of counsel), for complainants.

      E. B. Gilday and Willis Baldivin (George Gartuer, of counsel), for defendants.
   Hooker, J.

The complainants seek to enjoin defendants from hunting ducks on wet and marshy land adjacent to Lake Erie, near Monroe. The defendants insist that the lands are a part of the bed of the lake, and that the public has a right to hunt and fish upon them. See 1 Comp. Laws, §§ 1265-1267; People v. Silberwood, 110 Mich. 103 (67 N. W. 1087, 32 L. R..A. 694); 1 Comp. Laws, § 1261 et seq.j People v. Warner, 116 Mich. 228 (74 N. W. 705); 2 Comp. Laws, § 5875 el seq.j Act No. 171, Pub. Acts 1899. The Federal government surveyed the premises in question, which are bounded by the meander lines of Lake Erie, and subsequent to 1850 conveyed them to the State under the State swamp-land act, and the complainants have derived title from the State. The defendants claim that they were submerged lands, and that title passed to the State on its admission in 1836, although they had been previously surveyed as land, and have since been treated as such by both Federal and State governments.

While it is true that the Federal government took title to the land at the bottom of the lakes in trust under the cession from Virginia, and could not properly dispose of it otherwise than in a substantial discharge of its trust, it was not without power over the lakes during the territorial period. It was said in Shively v. Bowlby, 152 U. S. 48 (14 Sup. Ct. 566), that:

“We cannot doubt, therefore, that Congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several States, or to carry out other public purposes appropriate to the objects for which the United States holds the territory.”

The Federal government had undoubted authority to adopt a system of surveying and sale of lands with a view to the improvement of the territory of Michigan, and this necessarily involved the definition of the boundaries of the lakes by a line which should not be subject to future controversy. The meander lines of rivers and inland lakes, where the title to the bed is in the riparian owner, are of comparatively little significance, and it has frequently been said that they were not run to bound the possessions of the riparian owner, whose title might extend beyond them. This is true even as to the Great Lakes. We recall no case, however, that holds in express terms that title does not extend- to meander lines. It has frequently been said that they have two purposes,—one to make the boundaries of the bodies of water, the other as a means for computing acreage; and we have in mind one case where it was held that they had the further purpose of defining the extent of ownership, where the meander was not on a body of water, but upon a marsh, partly boggy and partly dry, subject to inundation and overflow, but not permanently covered with water, and bounded along the lake by a sand beach averaging one chain in width and three feet high. Niles v. Cedar Point Club, 175 U. S. 300 (20 Sup. Ct. 124).

In the present case there is no claim that the meander line was not designed to show the boundary of Lake Erie, and presumptively it followed the then existing shore or beach. In fact, there is testimony to that effect. We think it was within the power of the Federal government to define the bounds of the lake, and that its determination should be considered final and authoritative; for otherwise the Titles to lands derived from the government would be subject to attack upon the ground that they were improperly or erroneously surveyed as land, when in real truth they were submerged land, and a part of the bed of the lake, and already belonged to the State. The surveys are held conclusive of boundaries in other cases, and why not in these ? See De Guyer v. Banning, 167 U. S. 723 (17 Sup. Ct. 937); Stoneroad v. Stoneroad, 158 U. S. 240 (15 Sup. Ct. 822). In Russell v. Maxwell Land-Grant Co., 158 U. S. 253 (15 Sup. Ct. 827 ), the court said, “A survey made by the proper officers of the United States, and confirmed by the land department, is not open to challenge by any collateral attack in the courts;” and it was said further in the same connection, quoting from Beard v. Federy, 3 Wall. 492:

“By it [the patent] the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to' recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government, this record, so long as it remains unvacated, is conclusive. And it is'equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit iw his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quibt and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and, if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest wo fid be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and therefore he could not be disturbed by the patentee.”

See, also, U. S. Rev. Stat. § 2396; French v. Fyan, 93 U. S. 169; More v. Steinbach, 127 U. S. 70 (8 Sup. Ct. 1067); Cragin v. Powell, 128 U. S. 691 (9 Sup. Ct. 203); Brown v. Milliman, 119 Mich. 606 (78 N. W. 785); Niles v. Cedar Point Club, 175 U. S. 300 (20 Sup. Ct. 124).

If the defendants are to be allowed to show that this land was a part of the bed of the lake, in contradiction of the survey, which treats it as land, and it be held not to be within the power of the government to survey and sell the same, whole governmental subdivisions of land purchased by the complainants will be taken from them. We are of the opinion that the survey by the government, and transfer to and sale by the State to the meander lines, as State swamp land, conclusively establish the boundaries of the lake, and that titles of abutting proprietors extend to them upon the presumptibn that must be conclusive, i. e., that when the meander lines were run they followed the true shore of the lake. This being determined, and it appearing that there has been little if any change in the condition of the lands, though the sand beach be somewhat lessened, the case falls within the decision of Sterling v. Jackson, 69 Mich. 488 (37 N. W. 845, 13 Am. St. Rep. 405).

The decree of the circuit court should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    LYON v. DADA.
    Wills—Revocation Clause in Void Will.
    Where probate of a will is denied on the ground of undue influence, a clause therein expressly revoking all former wills becomes ineffectual, and a prior will may be admitted to probate.
    Error to Berrien; Coolidge, J.
    Submitted January 9, 1901.
    Decided July 10, 1901.
    William R. Lyon presented for probate the last will and testament of Laura E. Dada, deceased. The will was allowed in the probate court, and Percy A. Dada, an infant, by Warner M. Baldwin, his guardian, appealed to the circuit, where probate was refused. Proponent brings error.
    Reversed.

      William B. Lyon (LJdivard Bacon, of counsel), in pro. per.

      M. L. Hoivell, for appellee.
   Montgomery, C. J.

This is an appeal from an order of the circuit court refusing probate to the will of Laura E. Dada, deceased. A will of later date was offered for probate, and the decision denying probate to this will was affirmed by this court in Lyon v. Dada, 111 Mich. 340 (69 N. W. 654). That later purported will contained a clause revoking all former wills. The question presented by this appeal is whether denial of probate to this will is res adjudicata upon the question of whether it revokes the former will.

This question was before the court of Massachusetts in the early case of Laughton v. Atkins, 1 Pick. 535, where the subject is treated in an able and exhaustive opinion by Parker, C. J. The principles to be extracted from that case are that all persons interested in an estate are parties to the probate proceedings, and bound by them, and that the disallowance of a will in toto on the ground of undue influence amounts to a determination that the revocatory clause is ineffectual. This case was cited and followed in Rudy v. Ulrich, 69 Pa. St. 177 (8 Am. Rep. 238), and is cited and approved in Wallis v. Wallis, 114 Mass. 512. In the present case it was determined on the former issue that the entire will was void on the ground of undue influence. There was no attempt to probate any part of the will, nor was the determination confined to any single clause of the will. We think the case is within the principle of those cited. See, also, Dudley v. Gates, 124 Mich. 440 (83 N. W. 97).

The judgment of the circuit court will be reversed, and an order entered admitting the will to probate. The appellant will be entitled to recover his costs, to be paid out of the estate.

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


author: Long, J.

text:
    BRENDEL v. HANSEN.

    Wills—Life Estate—Remainders.
    Under a will giving to testator’s wife “the use, profit, income, and enjoyment” of all his property during her lifetime, appointing her as executrix, with x>ower to sell and convey or mortgage the real'estate, but providing that, on her death, the whole of the property, including the proceeds of sales of real estate, shall go to testator’s children, the wife does not take an absolute estate, and at her death the children are entitled to the property.

      Appeal from Wayne; Donovan, J.
    Submitted January 10, 1901.
    Decided July 10, 1901.
    Bill by Eleonora Brendel and Lina Krapp against Ella Hansen, Gesina Ronnefeld, and the Home Savings Bank of Detroit for an accounting and an injunction. From a decree for complainants, defendant Hansen appeals.
    Affirmed.

      William E. Henze, for complainants.

      Thomas A.' E. Weaclock, for appellant.

       Rehearing denied November 4, 1901.

   Long, J.

Theodore Ronnefeld died June 6, 1888, leaving surviving him a widow, Gesina Ronnefeld, and two daughters, complainants here, children by his first wife. Ella (Arabella) Hansen was his niece. He left an estate valued at about $25,000, consisting of about $11,000 of personal property and $14,000 in real estate.' His last will and testament contained three clauses the provisions of which are the only ones that need be considered in determining the questions involved in the present controversy, as follows:

“ Second. I do hereby give, bequeath, and devise unto my beloved wife, Gesina Ronnefeld, of the city of Detroit, county of Wayne, and State of Michigan, for and during the term of her natural life, the use, profit, income, and enjoyment of all the rest and residue of all my property, real, personal, and mixed, of every nature whatsoever, and wherever situate, of which I shall die seised or possessed, or to which I shall be entitled at the time of my decease: Provided, however, and I do hereby order, that my said' wife, out of the income from such rest and residue of my estate, shall support, as much as in her power, my daughters, Martha Eleonora Brendel and Lina Bertha Ronnefeld, and my niece, Arabella Hansen, while they are unmarried or widows, and have no other means for their support.

‘ ‘ Third. Upon the decease of my said wife, Gesina Ronnefeld, I do hereby give, grant, bequeath, and devise unto my two daughters, Martha Eleonora Brendel and Lina Bertha Ronnefeld, the whole of my estate, real, personal, and mixed, including the proceeds from sales of my real estate, together with the use and income thereof, from and after the decease of my said wife (excepting said life insurance, hereinbefore otherwise disposed of), to be equally divided between my said two daughters, Martha Eleonora Brendel and Lina Bertha Ronnefeld, share and share alike; and to have and to hold the same unto them, their respective heirs and assigns, forever. If, however, at the time of the decease of my said wife, Gesina Ronnefeld, one of my above-named daughters shall be dead, leaving no issue then living, then, and in that case, I give, grant, bequeath, and devise the whole of my said estate and the income thereof unto my surviving daughter, for herself, her heirs and assigns. And if at the time of the decease of my said wife, Gesina Ronnefeld, both of my said daughters are dead, leaving no issue then living, then, and in that case, I give, grant, bequeath, and devise the whole of my said estate and the income thereof unto my sister, Clara Kittel, wife of school director Fried-rich Kittel, of Glauchau, of the kingdom of Saxony, Germany, for herself, her heirs and assigns.

“Fourth. I do hereby appoint and nominate my said wife, Gesina Ronnefeld, of the city of Detroit, county of Wayne, and State of Michigan, executrix of this, my last will and testament, hereby giving and granting unto her the absolute right and full power and authority at any time to sell and convey' in fee simple or mortgage any or all of my real estate, and to give proper deeds and conveyances or mortgages for the same by virtue of the power hereby granted, and hereby requesting the judge of probate to demand of her only such bond as, in his judgment, shall be necessary for the proper execution hereof.”

The widow filed her bond, and took charge of the estate. She kept the family together after the death of her husband.

Some time in 1899 a dispute arose between the parties as to the use the widow was making of the property, moneys, and effects of the estate, and an application was made to the probate court by Eleonora Brendel asking the removal of Gesina Ronnefeld as executrix, and to have an administrator de bonis non appointed in her place. Following that, and some time in November, 1899, the bill in the present case was filed, in which it is charged that Gesina Ronnefeld has never settled said estate; that by reason of mental and physical infirmity she has been unable for five years past personally to manage the affairs of said estate, and has intrusted the management of it to defendant Ella Hansen; that for 20 years last past Ella Hansen has lived with Gesina Ronnefeld, and has acquired great influence over her; and by fraudulent practices, and with intent to cheat and defraud complainants of their just share of said, estate, said Ella Hansen has succeeded in getting possession of moneys and other property belonging to said estate to the amount of $10,000. By an amendment to said bill it is further charged in said paragraph that said Ella Hansen has converted a large amount of moneys and property to her own use by depositing such moneys in various savings banks in the city of Detroit, subject to her order, and has wasted and lost a large portion of the moneys belonging to said estate, amounting to at least $4,000, by placing the same in the hands of her attorney, William Look, for safe-keeping or investing or as a loan; and it is further charged on information and belief that said Look is indebted to various persons and estates, whose moneys had been intrusted to him, to the amount of at least $20,000, and that said Look has no means, income, or property whatever, and that all moneys placed in his hands by said Ella Hansen are lost. It is further charged that Ella Hansen is also financially irresponsible; also, that a large amount of money has been deposited by Ella Hansen with the defendant the Home Savings Bank of Detroit, partly in her name and partly in the name of Gesina Ronnefeld. The bill asks the appointment of a trustee to take charge of said estate, and also an injunction restraining Gesina Ronnefeld and Ella Hansen and the Home Savings Bank from disposing of said moneys.

The defendants filed separate answers to the bill. Gesina Ronnefeld admits in her answer that, after the payment of the debts and funeral expenses of her husband, there remained personal estate of the value of $7,262.72, and real estate valued at $14,600; but she insists by the answer that, upon the payment of the debts, funeral charges, and expenses of administration, the entire property left by the deceased, both real and personal, became and was her sole and absolute property.

The Home Savings Bank, bjr its answer, admits that in March, 1892, Gesina Ronnefeld opened a deposit with it of $300, and that subsequent deposits were made by her to the amount of $5,939.81; that the balance on deposit, amounting to $3,914.81, was withdrawn August 25, 1899, the account closed, and on the same day defendant Ella Hansen opened an account with said defendant, amounting to $3,839.81, from which account nothing has been withdrawn, but to which no deposits have been made; that on May 3, 1892, Ella Hansen also opened an account with said defendant in the sum of $2,214.37; that the total deposits in said account have been $3,574,39, and withdrawn the sum of $3,450, leaving a balance of $124.39; that the accounts so opened by said Gesina Ronnefeld and Ella Hansen still stand as personal accounts; and that defendants did not represent themselves to the defendant bank as acting in any representative capacity whatever.

Defendant Ella Hansen, in her answer, also alleges that the moneys and property of the estate, after payment of the debts and funeral expenses, vested in and became the absolute property of Gesina Ronnefeld. She denies that any moneys of the estate have been deposited with William Look, or that he is indebted in the amount stated in the bill. She also denies the right of complainants to have matters not material to this case investigated or tried in the case; denies also that complainants are entitled to any further or other answer to matters and things charged in paragraph 5 of the bill. She denies that any money belonging to the estate, or in which the complainants have any interest, has been deposited with the Home Savings Bank.

Gesina Ronnefeld died April 26, 1900, and the court below made and entered a decree in favor of complainants tbe following day. The decree provides: •

First. That the complainants, the children of the deceased, Theodore Ronnefeld, are entitled to the fee of all the real estate and to the whole of the personal estate, subject to the life estate and interest of Gesina Ronnefeld. .

Second. That the defendant the Home Savings Bank pay over to complainants, or their solicitor, all the moneys deposited in the bank in the name of Ella Hansen; and that said Ella Hansen, her agents, attorneys, and solicitors, turn over to the complainants, or their solicitor, all the stocks, bonds, notes, mortgages, claims, and demands belonging to said estate now in their possession.

Third. That the defendant Ella Hansen render a full and true account of all moneys, credits, chattels, and effects belonging to said estate received by her, and in her possession or custody, oyer and above the money in said Home Savings Bank, and pay over to said complainants the amount found to be due said complainants on sueh accounting.

Fourth. That the cause be referred to a circuit court commissioner to take such account; and that, if said Ella Hansen neglect or refuse to render such account within 10 days after service upon her or her solicitor of a copy of said decree, that this decree stand as a personal decree against her for the sum of $7,862.72, belonging to the estate of the deceased according to the administration account of Gesina Ronnefeld, allowed by the probate court on February 18, 1890, after deducting from said sum the moneys paid over to complainants by said Home Savings Bank in pursuance of this decree.

Defendant Ella Hansen has appealed. It is contended by her counsel that under this will the widow became the absolute owner of all the estate of the testator after the payment of debts, funeral expenses, and expenses of administration. We think the will cannot have sueh construction. By such a construction the testator’s children would be absolutely disinherited. It is evident from a reading of the will that he intended his widow should have the use and income of the estate, but charged upon that use and income the care of the two daughters and Ella Hansen, who was a niece of testator, and an inmate of the family; and that, at the death of the widow, his daughters, if living, should have and receive all the remainder of the estate. The widow died before the entry of the decree below, and we think the court very properly held that the daughters were entitled to the whole of the estate at her decease. We are satisfied from the testimony that the court was not in error in decreeing that the moneys deposited in the Home Savings Bank in the name of Ella Hansen belonged to, and were a part of, the estate of the deceased, Ronnefeld; nor was the court in error, we think, in the decree made requiring Ella Hansen to account for all moneys in her hands belonging to said estate. It is wholly unnecessary to set out the evidence here upon which we base our conclusions.

The decree below must be affirmed, with costs.

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


text:
    ZABEL v. NEW STATE TELEPHONE CO.
    1. Contracts—Stock Subscriptions—Public Policy.
    A contract whereby plaintiff was to assist defendant in obtaining subscriptions to its capital stock, containing a provision that plaintiff’s father should subscribe for a certain amount of the stock at a public meeting to be held in furtherance of the enterprise, but should in fact take only so much of the stock as should be paid for by the commissions earned by plaintiff, is not void as against public policy, unless it was contemplated that the conditional nature of the subscription should be concealed from the public; and whether such was the intention of the parties is a question for the jury.
    2. Same—Breach—Damages—Evidence.
    In an action for the breach of a contract to furnish telephone service, it is competent for plaintiff to testify to what the value of the service would have been to him if furnished.

      Error to Monroe; Kinne, J.
    Submitted January 11, 1901.
    Decided July 10, 1901.

      Assumpsit by John O. Zabel and Thornton Dixon, co-partners as Zabel & Dixon, against the New State Telephone Company, for commissions on the sale of stock, and the breach of an agreement to furnish telephone service. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Flowers & Moloney, for appellant.

      Willis Baldivin, for appellees.
   Montgomery, C. J.

This is an action for breach of contract. The contract was in writing, and provided that the plaintiffs should assist the defendant and its agents in the sale of stock, and for such services receive in stock 10 per cent., and in coupons 1 per cent., of all stock sales made, with the assistance of plaintiffs, in Dundee and surrounding towns, and also 5 per cent, in cash on the amount realized from the organization of local exchanges. In addition, the company agreed to grant plaintiffs free telephone service between Dundee and Petersburg, “if said lines are built from results of assistance given by said parties, and to put instruments in their office in Petersburg and their office in Dundee. ” It further provided that John J. Dixon, who is the father of one of the plaintiffs, should subscribe for 10 shares of stock, at §100 each, at a meeting to be held in Dundee for the promotion of said enterprise, but that said John J. Dixon was not to pay cash’for the same, but the 10 per cent, commission provided for in the contract should be accepted by the company in payment for said stock, if said commission should amount to 81,000; but, if said commission should amount to less than §1,000, on a final settlement under the contract said John J. Dixon should release as much of said shares as should remain over and above the amount due the plaintiffs as commissions. The plaintiffs recovered a verdict for $431, —$231 for commissions for sale of stock, and $200 for the failure of the company to furnish free telephone service. Defendant brings error.

The first contention of defendant is that the contract is void on grounds of public policy, reference being had to the agreement to secure the subscription of - John J. Dixon. The circuit judge charged the jury upon this question as follows:

“ In the subscription of each person to the capital stock of a corporation every other subscriber has a direct interest. Their respective subscriptions are contributions to a common object. The action of each in his subscription is supposed to be influenced by that of the others, and every subscription to be based upon the ground that the others are what they are represented to be. The fact that one person binds himself to place a certain amount of his money upon the risk involved in the enterprise is an inducement to others to venture in like manner, and any secret agreement between the company and a subscriber or his privies, which changes the conditions of the subscription, is a fraud upon the other subscribers, and renders this agreement, and any contract growing out of it, null and void; and any agreement between the company and second parties, which contemplates a deception to be practiced upon others not parties to the agreement, is contrary to public policy and void.

“Therefore, if you believe that the contract sued upon was entered into with the understanding that John J. Dixon was to appear at a public meeting in Dundee and subscribe for 10 shares of the stock, without stating the conditions of his subscription, then your verdict will be, ‘ No cause of action; ’ and this would be your verdict even though you find that no meeting was in fact held, for it is the intention of the parties which vitiates the agreement. Or if you believe—that is, if you find from the evidence— that the plaintiffs, or either of them, solicited subscriptions for the stock of the defendant company, and represented that John J. Dixon had subscribed for 10 shares of this stock, without stating that his subscription was conditional, then your verdict should be for the defendant, ‘ No cause of action.’ Or if you find from the evidence that John J. Dixon, with the consent or knowledge of either of the plaintiffs, solicited subscriptions for the stock of the defendant company, and represented that he had subscribed for 10 shares of this stock, without stating that his subscription was conditional, then your verdict should be for the defendant, ‘No cause of action.’ Or if you find from the evidence that the agents of the defendant company solicited subscriptions for the stock of the company, and, by and with the consent or knowledge of the plaintiffs or either of them, represented that John J. Dixon had subscribed for 10 shares of this stock, without stating that his subscription was conditional, then your verdict should be for the defendant, ‘ No cause of action.’ Or if you believe that the agents of. the defendant company solicited subscriptions for the stock of this company, and in the presence of the plaintiffs, or either of them, represented that John J. Dixon subscribed for 10 shares of this stock, without stating that his subscription was conditional, then your verdict should be for the defendant, ‘No cause of action.’ If you find that this contract is vitiated with fraud, then the plaintiffs cannot recover; and to establish this fraud it is not necessary that you are convinced that any person has been misled in subscribing to this stock, but it is sufficient if you find that an attempt has been made to mislead or deceive prospective subscribers.”

We think this instruction correctly states the law of the case. It is to be noted that the contract on its face does not call for any act on the part of John J. Dixon or the plaintiffs calculated to mislead or deceive the public. This contract could have been complied with had John J. Dixon publicly made subscription for the stock, and at the same time declared the terms of his subscription. S.o we have to look elsewhere for evidence of an intention to deceive. The evidence in the case was such as to justify the submission of that question to the jury. They have found against the defendant, and this finding is conclusive.

It is next contended that there was error in admitting evidence of the damages sustained by the plaintiffs by reason of the failure of the defendant to furnish telephone service between Dundee and Petersburg. The rule is cited from Sutherland on Damages (§ 444) that ordinarily a witness is not allowed to give his opinion of the amount of damages a party sustains from a given act or omission, because, when he does so, he includes the law as well as the fact. This is a correct statement of the law, and, if it has been invaded, error has been committed. But, turning to the record, we find that, while the question put to the witness was, “What is the damage to you and Mr. Dixon by reason of not having those telephones furnished you in your respective offices ?” yet that, from the connection in which this question was put, the specific item which was called for is shown to have been the value of the service; for the question, before it was answered, was put in various forms, one of which was, “What is the value of that telephone service ? What would it have been if completed,—The convenience of having a phone in your offices, and the use of it, if you used it more if you did not pay toll than if you did, per year, up to the present time?” We think this inquiry was competent. The plaintiffs hád the right to show that they had been deprived of this telephone service, and we think it was competent for them to estimate what the value of that service would have been to them if furnished.

We discover no error to the prejudice of the defendant, and the judgment will be affirmed.

Moore, Long, and Grant, J J., concurred with Montgomery, C. J. Hooker, J., concurred in the result.


text:
    COMMERCIAL BANK OF BAY CITY v. CHATFIELD.
    1. Banks and Banking — Negligence of Director — Loans to Cashier—Ratification by Board—Evidence.
    In an action by a bank against a former president and director to recover for moneys lost by his negligence in permitting the cashier to borrow on inadequate security, testimony that the loans to the cashier were not read off at subsequent meetings of the directors, or reported to the board by the examining committee of the bank, was properly admitted to disprove ratification of the transaction by the board.
    2. Same—Harmless Error.
    The cashier was asked why he did not request his loan of a full board of directors, and answered, over objection, that it was the custom to discount nearly all paper before the board knew of it. Held, not xirejudicial to defendant.
    3. Same.
    It was competent, in order to establish a lack of ratification of the loan by the board, and the absence of negligence on its ’ part, to show that, when-the directors learned of the loan, they were at the same time given to understand by defendant that it was secured by collateral in his hands.
    4. Same—Estoppel.
    And if defendant in fact had no sufficient collateral, the action of the board in approving the loan in reliance on his rexiresentation was not such a ratification of the transaction as to estop the bank from holding him accountable for the resulting loss.
    5. Trial—Damages—Harmless Error.
    Error in refusing to withdraw a certain item from the jury was harmless where the jury disallowed it.
    Error to Bay.; Shepard, J.
    Submitted February 1, 1901.
    Decided July 10, 1901.
    Case by the Commercial Bank of Bay City against Clarence B. Chatfield, impleaded with Ira H. Wilder, for negligence in loaning plaintiff’s funds. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Tohn L. Stoddard, for appellant.

      T. A. JEJ. & J. C. Weadock, for appellee.
   Montgomery, C. J.

This case has once been considered by this court, and the law of the case declared. The declaration was deemed sufficient to warrant the sub-. mission of the question of defendant’s negligence to the jury, and the question for trial was held to be whether the plaintiff had suffered a loss by reason of the failure of the defendant to observe such care as a careful and prudent man would observe in his own affairs of like importance. In determining this question it was held that it would be a sufficient defense if it appeared that the Toss to the bank occurred because of a loan approved or ratified by the board of directors. Commercial Bank of Bay City v. Chatfield, 121 Mich. 641 (80 N. W. 712). We are only concerned with the question whether the case was, on the second trial, put before the jury on the lines indicated by" our former decision, as that decision must be treated as the law of the case. A careful reading of the charge of the court convinces us that the learned circuit judge, in his instructions to the jury, very carefully followed the lines of our former opinion. It only remains to inquire whether error was committed in receiving or excluding testimony.

Defendant assigns error on rulings admitting testimony that the loans to Wilder were not read off at the meetings of the board held subsequently to the time that the several notes were issued. We think this entirely competent. The plaintiff assumed the burden of showing the loans were not approved or x'atified by the board, and it was directly in line with this purpose to show that the boax’d did not learn of the loans through their usual channels. For a like purpose it was competent to show that the paper was ' not reported to the board by the committee appointed to examine the paper of the bank.

Wilder, the cashier, to whom the loan in question was made, was a witness for plaintiff. He was also a defendant. He was asked why he did not ask for the loan of a full board. This was objected to as incompetent and immaterial. Whether the question was material as it related'to the issue between the bank and Chatfield isUnimportant, as his reply that it was the custom to discount all paper, or nearly all, before the board knew anything about it, could not have damaged the defendant Chatfield.

We think it ‘was also competent to show that the directors, when they did learn of the loan, relied upon the statement that the note was secured by collateral in the hands of the defendant Chatfield. It is claimed as to this and other testimony adduced by plaintiff to show the understanding of the directors, that it did not tend to prove negligence in the making of the loan. The testimony was competent to show that the board did not ratify the act of defendant, and that the loss did not occur by the subsequent negligence of the board of directors.

Without discussing in detail the numerous exceptions to testimony relied upon, we will add that all have had attention, and we discover no prejudicial error in any of these rulings.

The defendant’s counsel contends that the $1,500 item— which was the amount of the first loan to Wilder—should have been withdrawn from the jury. The evidence shows that the renewal of this note was read in the meeting of December 31, 1895, and the testimony shows it was approved in the usual way. It is contended that this amounted to a ratification. This contention demonstrates the propriety of admitting proof of what the directors relied upon when they first learned of this loan. The note, on its face, purported to be secured by collateral in the hands of Mr.. Chatfield. The directors, if they understood that this collateral was reasonable security, and relied upon defendant Chatfield’s tacit representation that he had such security, cannot, if it be shown that he had no security of value, be held to have ratified his acts with such knowledge of the facts as estops the bank. The charge on this subject was as follows:

“ ‘Thefact, if it be a fact, that any or all of these Wilder notes were read off at meetings of the board of directors with the statement that the collateral was with Chatfield, and that Chatfield sát by and said nothing, does not render him liable for the money taken by Wilder upon the notes.’ That, I charge you, would be the law, if that was all there was of it; but if, in addition, you should find that Chatfield had no sufficient and valid security, or none whatever, in his hands, and then gave the board no information in regard to it, but allowed them to believe that he had collateral, which they had a right, from that statement made in the board, to believe to be suitable and proper collateral, then he may be liable in this action. In other words, that it is not reasonable for the president of the bank, when a statement is made to the board by the cashier that the collateral for a, loan is up in the hands of the president, and the president assented to such a statement that he held collateral for the loan, it would not be unreasonable for the members of the board to assume, from his experience as president of the bank, that he held in his possession suitable and sufficient collateral; that they might be justified in relying upon that statement to which he assented.”

We think this a clear statement of the law, as applied to the facts of the case.

Complaint is made of the refusal of the court to strike out an item of $1,000. It clearly appears that1#the jury disallowed this item, and; if it was error to deny the defendant’s motion to withdraw this item from the jury, it was error without prejudice.

Error is also assigned upon refusals to charge and upon the charge as given. As before stated, the circuit judge kept well within the lines of our former opinion, and we may add that we think the charge fully covered the defendant’s requests in so far as they were proper to be given.

Judgment affirmed.

The other Justices concurred.


text:
    FAIR v. BOWEN.
    Principal and Agent—Authority—Payment on Mortgage.
    Complainant held a mortgage on land owned by defendant. One H., who had previously made remittances for defendant, wrote complainant that defendant wished to sell a part of the land, and would pay a specified sum for its release from the mortgage; and that, if complainant would send a release, he (H.) would turn it over to defendant on payment of the amount stated. Complainant forwarded the release, which H. delivered on receipt of the amount agreed on, but failed to remit the money to complainant. Defendant, on learning of H.’s default, did not notify complainant of the facts, H. importuning him not to do so. Held, in a suit to foreclose the mortgage, that H. was the agent of defendant rather than complainant.
    Appeal from Manistee; McMahon, J.
    Submitted April 2, 1901.
    Decided July 10, 1901.
    Bill by Campbell Fair against John D. Bowen, Arthur D. Bowen, and others to foreclose a mortgage. From a decree for complainant, defendant John D. Bowen appeals.
    Affirmed.

      Stuart & Barker, for complainant.

      McAlvay & Grant, for appellant.
   Montgomery, C. J.

This is one of those unfortunate cases in which one of two innocent parties is compelled to suffer through the default of a third party. The complainant held a mortgage upon land in Manistee county, given by defendant John D. Bowen, the land covered having been conveyed to Arthur D. Bowen after the execution of the mortgage. In March, 1894, a release of a part of the mortgaged premises was sent to one Leo F. Hale, and, upon Arthur D. Bowen turning over to him certificates of deposit amounting to something over' $800, with the understanding that $644 of this sum was to be received as payment on the mortgage, and forwarded to complainant’s agents at Grand Rapids, the release of a part of the mortgaged premises was delivered, and a sale made to one Frederickson of the land described in the release. The only question in the case is whether, in receiving these certificates of deposit, Hale acted as the agent of complainant or represented Bowen. The circuit judge was of the opinion that Hale represented defendants Bowen, and, on a full examination of the record, we agree with this conclusion.

It appears that, in previous correspondence relative to the interest accruing upon this mortgage, Mr. Hale had written to Scribner Bros., the agents of complainant, and had made remittances of interest and on the principal at different times. On the 16th of February, 1894, Mr, Hale wrote to Scribner Bros., stating that Mr. Bowen had a chance to sell 80 acres of the land, and desired to get a release of that 80, saying, “ I believe I can get him to pay $400 and the interest on the $400 from maturity of last interest until paid;” and stating that, “If that is satisfactory, you may procure a release, and send to me, and I ■ will turn over to Bowen on payment of amount.” To this Mr. Scribner replied, stating, in substance, that he had presented the request to his client, who desired to know further in regard to the property, and requested him (Scribner) to have Mr. Bowen give a description of the two parcels, stating improvements, etc., and adding: “From your letter, I advised the doctor to execute the release, and I think he will yet. Can you not have Bowen raise the $400 a little ? ”

We are satisfied, from an examination of the record, that this letter of Hale to Scribner was written at the special instance of Mr. Bowen; and, while Mr. Bowen undertakes to say that he supposed Mr. Hale 'was a representative of complainant, we think the whole course of dealing is inconsistent with this claim. The only ground for saying that Hale was the agent of complainant is that the release was subsequently sent to him before the receipt of the money. But, as stated by the circuit judge, Hale was a mere instrumentality through which Bowen was to pay the money to complainant, and it seems to have been understood by all concerned that Hale had undertaken to do the business for Bowen, and his undertaking to remit the money was an undertaking for and in behalf of Bowen. If there were doubt about this conclusion, the subsequent course of the Bowens and Hale goes far to confirm the claim of complainant. After the Bowens ascertained that Hale had not remitted the money as directed, and after receiving letters from complainant or his agents asking payment, they continued to pay interest upon the full amount, —or, at least, John D. Bowen did,—and concealed from complainant the fact of Hale’s embezzlement. Counsel for appellant say that in this regard the conduct of John D. Bowen is not chargeable to the defendant Arthur D. Bowen, to whom the premises had been sold. But Arthur D. Bowen testified that he never notified complainant of the payment which he now claims to have made to Hale as complainant’s agent, and, when asked to state why he failed to do so, stated that it was at the request of Mr. Hale, who urged that, if complainant was notified of the situation, they would make him trouble. It seems incredible that the defendant, if he had in fact paid $500 and interest, should have remained silent while payment was being demanded upon the mortgage. A more consistent view is that he at that time understood that' the loss was his own, and that it was an afterthought to make the claim that Hale was acting as the agent of complainant.

The decree of the court below will be affirmed.

The other Justices concurred.


author: Montgomery, O. J.

text:
    GROSSLIGHT v. WAYNE CIRCUIT JUDGE.
    Execution—Jail-Limits Bond—Escape—Writ oe Ca. Sa.
    Under 3 Comp. Laws, § 10523, an action on a bond to the jail limits is barred by a voluntary return of the principal prior to the commencement of suit. Under sections 10306, 10307, when a person .has been taken on execution, no other execution can issue against him unless he has escaped, in which case he may be “ retaken ” on a new writ. Held, that where there had been a voluntary return by the principal in a jail-, limits bond, who had executed the same on being arrested under a ca. sa., the plaintiff could not affirm him out of custody by bringing an action on the bond for the alleged escape, and then, on discontinuing the action, sue out a new-writ of ca. sa.

      Mandamus by Fred L. Grosslight to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order granting an alias writ of ca. sa.

    Submitted February 12, 1901.
    Writ granted July 10, 1901.

      Groesbeck & Turner, for relator.

      Warner & Codd, for respondent.
   Montgomery, O. J.

Smith, Sturgeon & Go. sued relator by capias in the Wayne circuit court. Relator furnished bond after being taken into custody, and was released. Smith, Sturgeon & Go. obtained judgment against relator. A writ of ca. sa. was issued, and relator taken into custody, when he gave bond, with Louis R. Grosslight and James D. Burns as sureties. Afterwards Smith, Sturgeon & Co. commenced suit on this bond, claiming that an escape had been made by relator. A second trial was had, resulting in favor of said Smith, Sturgeon & Go. A levy was made on Louis R. Gross-light’s property. Louis R. Grosslight, acting for himself, paid $1,100 to Smith, Sturgeon & Co., obtaining a full release and discharge. A new trial was then granted. An order was made by consent of attorneys for James D. Burns and Smith, Sturgeon & Co. releasing Burns from all liability. The suit against the sureties on the bond was discontinued by Smith, Sturgeon & Co. They then moved for a second ca. sa. in the principal suit, which respondent ordered issued. The sureties never surrendered relator. Relator moved to set aside the order issuing the ca. sa., which was denied by respondent. Relator asks a mandamus to compel respondent to vacate the order granting the second ca. sa.

In general, the taking a party in execution is deemed a satisfaction of the judgment, so that no other writ can be sued out by the plaintiff upon the judgment while the defendant remains in custody. 1 Burrill, N. Y. Prac. 314. If, however, the defendant escape, the plaintiff is remitted to his former rights. The imprisonment is no longer a satisfaction, arid the plaintiff may use the judgment as a set-off against a demand of the defendant, or proceed anew against his person or property. Id. It is also stated in the text of Burrill that, where the plaintiff sues the sheriff for a supposed escape, and fails in the action, the court ■will allow him to issue a new ca. sa.j citing Anthony v. Dunbar, 1 How. Prac. 117, in which case a new writ was allowed after an unsuccessful prosecution of the sheriff for an escape. In that case two defenses were interposed in the action against the sheriff,—one, that there was no proof of escape such as would charge the sheriff; and the other, that Dunbar had returned to the limits before suit brought. The ground upon which the new writ was awarded is not stated. In Broten v. Littlefield, 1 Wend. 398, it was said that, by prosecuting the sheriff for an escape, the plaintiff elects to consider the defendant out of custody, and that, during the prosecution of such action, the plaintiff may not take the person of the defendant, although he may pursue the property. See, also, Rawson v. Turner, 4 Johns. 469. In Brown v. Littlefield it was said:

“There is, however, a striking .difference between a voluntary and a negligent escape. In case of a negligent escape, if the prisoner return before suit brought, the escape is purged, and he is, of course, a prisoner again at the suit of the plaintiff.”

Such, likewise, is the effect of a return under our statute (3 Comp. Laws, § 10523), which provides that, “in every action brought by the assignee of such bond, the defendants shall be entitled to give notice of a voluntary return of the prisoner to the liberties of the jail before the commencement of such action, in bar thereof. ” It is difficult to see how a return can be a bar to the action unless the defendant is in custody under the first writ. If he is in fact in custody, has the plaintiff a right to affirm him out of custody bjr bringing an action on the bond, and to sue out a new writ? 3 Comp. Laws, § 10306, provides that, “when the body of a party shall have been taken on an execution issued for that purpose, no other execution can be issued against him or his property, except in cases specially provided for by law.” The next section contains the only provision of law bearing upon this case. It is provided therein that, “if any person who shall have been taken on an execution shall escape, he may be retaken by a new execution against his body,” etc. It is obvious that, if there was no escape, tho plaintiff had no right to this writ. If there was an escape, and a return to custody, which would bar an action on the bond and , purge the escape, it is because the defendant is again' in custody, and no process to “retake” him is necessary or possible. If a plaintiff could, by his own act, elect to treat a defendant who is in fact in custody as out of custody, there would be no security, and it would be peculiarly burdensome to, or at least oppressive to, tho defendant, if, by asserting him to be out of custody, the plaintiff could collect of each successive set of bondsmen the larger part of the original claim, and still leave the judgment in force against the principal. It does not very clearly appear in this record just when tho relator returned to the county of Wayne, but tbe petition asserts tbat be bas resided in tbe city of Detroit for upwards of 20 years, and tbe answer admits tbat be bas resided in tbe city for some years last past, and both counsel in argument have assumed tbe fact of bis return, tbe respondent and bis counsel prosecuting tbe case on tbe ground tbat, by bringing tbe action on tbe bond, the plaintiff elected to treat relator as out of custody.

Tbe writ will issue.

Tbe other Justices concurred.


author: Moore, J.

text:
    SMITH v. BOYD.
    1. Equity Jurisdiction—^Fraudulent Will—Bill to Set Aside.
    Equity has jurisdiction to entertain a bill to set aside the probate of a fraudulent will. So held on a bill alleging that complainant was a legatee under the will of his grandfather, but that defendants, the other heirs at law, by fraud' and deceit and undue influence induced the testator, while in feeble health and of unsound mind, to change his will so as to deprive complainant of his interest thereunder, and after-wards secured the probate of the will, complainant then being an infant, without guardian, and having no notice of the proceedings until after the time for appeal had expired.
    2. Same—Pleading.
    It is not necessary that sueh a bill should set out the precise manner in which the fraud was accomplished.
    Appeal from Wayne; Hosmer, J.
    Submitted February 14, 1901.
    Decided July 10, 1901.
    Bill by William Eddey Smith against Jennie Boyd and others to set aside certain codicils to a will on the ground of fraud, and for an accounting. From an order overruling a demurrer to tbe bill, defendants appeal.
    Affirmed.

      Ralph Phelps, Jr., and Ira G. Humphrey, for complainant.

      James II. Pound, for defendants.
   Moore, J.

This is an appeal from an order overruling a demurrer to a bill in chancery. There are several reasons stated in the demurrer why the bill should be dismissed. Section 549, 1 Comp. Laws, allows an appeal only when the demurrer which was overruled was a general one (Taylor v. Taylor, 87 Mich. 67, 49 N. W. 519), so that we shall discuss only the question as to whether the allegations of the bill are sufficient to confer upon the court of equity jurisdiction to hear-the case.

The bill states, in substance, that complainant is the grandchild of William Mitchell, deceased; that the other parties to the bill are’ children or grandchildren of said William Mitchell, and they, with complainant, constitute all of his heirs at law. It alleges that the mother of complainant died when he was but 8 months old; that, when he was 7 years of age, he went to live with said William Mitchell, his father then being away, and that he remained with his grandfather and his- two aunts until his grandfather "died, July 3, 1889; that after his grandfather’s death he continued to live with his aunts until 1896, when he was 19 years of age.' The bill also alleges that, when complainant was 5 years of age, his grandfather, then being of sound mind, made a will, disposing of an estate worth $40,000 or more, giving to his wife the use of said estate, and upon her death providing for the payment of $250 in bequests, the balance to be divided between his heirs at law, one of whom was complainant. The bill further alleges that in December, 1886, when the grandfather was in feeble health, and not of sound mind, he was induced, by undue influence, fraud, and deceit, to change his will so that complainant would receive but half of what had been originally provided for him in the will. It also alleges that in May, 1889, his grandfather, while of unsound mind, under undue influence, and by fraud and deceit, was further induced to change his will so as to cutoff complainant with a $50 bequest; that in July, 1889, his grandfather died, and upon the petition of one of the defendants the will and codicils were admitted to probate, the name of complainant not being mentioned in said petition; that complainant had no general guardian; that his father was absent from the State most of the time during the settlement of the estate; that no guardian ad litem was appointed for him; and that complainant had no knowledge of the proceeding in probate court.

‘ ‘ And this complainant further alleges that the acts and doings of the defendants áre a fraud upon the just rights of complainant, and that he was fraudulently misled and deceived by those whose interests in said estate were adverse to his, and he is informed and believes, and charges the truth to be, that the heirs of said deceased, except complainant, fraudulently entered into a conspiracy to cheat and defraud this complainant of his rights and interests in the estate of his said grandfather, and that they falsely and fraudulently made misrepresentations to the said William Mitchell, deceased, in his lifetime, while feeble in body and mind, and used undue influence upon him to make said pretended codicils, in order to cheat and defraud this complainant of his interests in his said grandfather’s estate; that they falsely and fraudulently concealed from him the true state of affairs, for the purpose of preventing him from contesting the admission to probate of the codicils before mentioned, and from protecting his rights in said probate court,—all of which is contrary to equity and good conscience.”

It is insisted by the defendants that the jurisdiction of the probate court was ample in the premises, that the proceeding is substantially one in rem, and that the remedy is by appeal. If the claim of the solicitor is true, then complainant is without a remedy. In Grady v. Hughes, 64 Mich. 540 (31 N. W. 438), it was held that the probate court could not, upon petition, vacate an order allowing the final account of an administrator. In Corby v. Wayne Probate Judge, 96 Mich. 11 (55 N. W. 386), it was held that a probate court could not vacate its order allowing to probate a fraudulent will. When Grady v. Hughes was before the court the second time (80 Mich. 184, 44 N. W. 1050 ), it was held a bill in equity would lie against an administrator whose final account was a fraudulent one. When Corby v. Trombley was here the second time (110 Mich. 292, 68 N. W. 139), the bill of complaint was dismissed because of the laches of complainant, but no question was raised but that it was the proper method of remedying the wrong done by obtaining the probate of a fraudulent will.

It is insisted the averments of fraud are too general; that there is no specific averment of wrong-doing upon the part of the defendants, or any of them, to warrant the interference of the court. We cannot accept this view of the solicitor. The complainant is not obliged to set up in his pleadings all he expects to prove. We think the allegations of fraud are sufficiently definite to put defendants upon their defense.

The order overruling the demurrer is affirmed. The case will be remanded, and defendants are given 20 days in which to answer.

The other Justices concurred.


author: Hooker, J.

text:
    SPENCER v. TERRY’S ESTATE.

    1. Wills—Competency op Testatrix—Instructions.
    Where, on a will contest, proponent requested an instruction that if the testatrix made a draft of her will in her own handwriting, and at the time knew what she was doing, and recalled to her mind her property and her friends and relatives, and gave it to her attorney, and directed him to add a clause disposing of the residue to a library association, then the jury should sustain the will; and there was testimony to 'support the request,— it was error to modify it by inserting the words, “if she was then competent.”

      2. Same—Application op Testimony.
    Where there was much in the testimony of contestant’s witnesses to show that the testatrix was competent when she executed her will, and all of their testimony was not necessarily inconsistent with that of proponent’s witnesses, it was error for the court to array the witnesses of the respective parties against each other in his charge to the jury.
    Error to Berrien; Coolidge, J.
    Submitted February 14, 1901.
    Decided July 10, 1901.
    George F. Sonner presented for probate the last will and testament of Melissa E. Terry, deceased. The will was allowed, and Charles A. Spencer and others appealed to the circuit court.- From a judgment for contestants, proponent brings error.
    Reversed.

      A. P. Cady and I. W. Biford, for appellant.

      Gore & Harvey, for appellees.

       Rehearing denied July 19, 1901.

   Hooker, J.

The controversy in the present case arises over the will of Melissa E. Terry, who died, a childless widow, at the age of 70 years, at Benton Harbor, Mich. The index does not refer to the verdict and judgment, if ' they are contained in the record, but the briefs lead us to infer that a successful contest was made by the appellees, and the will was held to be void on the ground of a want of testamentary capacity.

The will was drawn by her attorney, named Plummer, and was formally executed. The following is a copy:

“ In the name of the Father, the Son, and the Holy Ghost, I hereby make my last will and testament. To God, its Creator, I intrust my soul. To its returning dust I resign my body, and it is my wish that it be laid beside my husband in the family lot at Elmwood Cemetery, Detroit, Mich., as indicated on the map within which is the ■deed of ownership; said map and deed to be submitted to the care of F. S. Hendrickson, my nephew, who will accompany the remains to their last resting place. When funeral rites are over, and all expenses settled, including doctors, undertakers, and other incidental, I next bequeath to my brother, Charles A. Spencer, and my sisters, Romelia M. Hendrickson, of 3101 Groveland Ave., Chicago, 111., and Mary S. Johnson, of 4735 Langley Ave., Chicago, 111., such part of my estate as I received from my father’s estate at the time of his death, namety, a thousand and fifty dollars, to be equally divided between them. I next bequeath to Elmwood Cemetery the sum of two hundred dollars, to be kept at interest as a perpetual fund for keeping the lot in good condition. I also bequeath to Mary L. Whipple, of Grand Rapids, Michigan, a protégé of mine since her mother’s death, when she was but eight years of age, the house and lot in Berrien Springs once the property of Mrs. Francis Smith, but which came to me through foreclosure of mortgage.

“All the balance of my estate, of whatever kind, I give and bequeath to the Benton Harbor Library Association, to have and to hold forever.”

The undisputed testimony shows that on the 17th day of February she sent a note to Plummer, requesting him to call at her residence, and he did so. She gave him a memorandum in her own handwriting, and requested him to put it in shape for her will. The will drawn is a literaj. copy of the memorandum, except the last paragraph, which was not contained in the memorandum. The witness testified that, after reading the memorandum, he asked her what she wanted to do with the balance of her property, and said, ‘“You have only disposed of part of it.’ She said, ‘ I have had two objects in view.’ One was to give it to a small church, as I remember it,—I thought she said South Haven; I didn’t charge my mind with it,— and the Benton Harbor Library Association. Then she said, ‘ As I have worked for the church all my life, the church wouldn’t find fault with me;’ and she concluded to give it to the Benton Harbor Library Association.” The will was read to Mrs. Terry, and she signed it. At that time the library association was organized, but had not yet a library, having been organized but a short time. The will was witnessed by a Mrs. Gurd, who occupied a portion of the house of Mrs. Terry, and was called in for the purpose.

The brief of the contestants places the contest upon the ground of mental incompetency, and we need not consider the question of undue influence, of which there is not a shadow in the proofs. The testatrix was taken ill in December. She made her will on February 17th, following, and died on March 26th. Her physician, Dr. Bell, testified that he was first called in December, and made a few visits that month, and was next called in January 31st, and thereafter attended her at intervals of a few days, and sometimes on successive days. He says that at his first visit she had chills and fever, heart trouble, and a dropsical condition of the system; also a slight kidney trouble; that at times she showed considerable mental'derangement. He did not notice any particular trouble with her mental condition during the fore part of her illness, but about the 19th of February, one evening, she was excited and irrational, and from that time she was deranged to a certain extent, and, in his opinion, she was not competent to make the will. Mrs. Gurd, a woman who occupied a portion of Mrs. Terry’s house, and saw much of her; Mrs. Getchell, an acquaintance for six years; Mrs. Keith, a near neighbor; Mrs. Woodruff, the wife of a clergyman, and an intimate friend of the testatrix; Miss Deam, a school teacher, and an intimate friend of long standing; and Mrs. Faulkingham, who was much with testatrix in church work,—all testified that, in their opinions, she was incompetent to make this will. There were others who gave similar testimony. There was testimony tending to show that the testatrix was not in her usually strong mental condition when she was sick, and that at times she was incoherent and rambling. On the other hand, the inference is strong that she was not at' all times irrational, and the uncontradicted testimony of Plummer is very convincing.

Whatever witnesses may think of her condition as a rule, it is impossible to read this record impartially without believing that the making of a will had been on her mind for some time; that on the 17th day of February she sent for her attorney, and gave him the written memorandum, which some of the contestants’ witnesses testify was in accord with her previously-expressed intentions, and which was on that day, or some other day, prepared by her, and which, in and of itself, tends strongly to show that she was not incompetent when it was prepared. She accompanied it with a suggestion as to the balance of her property which is not in itself unreasonable.

It has been said that when the undisputed proof shows that the testator could and did write or dictate the will produced, in the absence of fraud or undue influence, “the fact is established that he was capable, mentally and physically, of doing whatever the instrument shows was done; and the only question is, Does the instrument, on its face, indicate that it is the emanation of an unsound mind, when applied to the facts and circumstances upon which and under which it was intended to operate, namely, the estate disposed of, and the manner of disposition?” Spratt v. Spratt, 76 Mich. 391 (43 N. W. 629). Also:

“ The extent of his estate, and his next of kin, and also the relations existing between the testator and any beneficiary under the will, may be shown, as bearing upon the question of mental capacity; and, while it may be said that a testator’s blood relations are the natural objects of his bounty, his bounty is not limited by blood relationship, nor have his blood relations any natural or inherent right to his property. He may dispose of his property as he pleases, and it is not an indication of mental incapacity that he distributes it- among certain of his relations, and entirely omits others.

‘ ‘ After carefully reading the testimony in this case, we feel justified in repeating what was said in the case of Pierce v. Pierce, 38 Mich. 420, viz.:

1 ‘ ‘ We referred in Latham v. Udell, 38 Mich. 238, and we think it not improper to refer again, to the wrongs done under color of law by .the attempts, which are becoming so common as to be dangerous to the security of private property, to overthrow wills because they do not suit the notions of those who determine their validity. The right to make a will as a testator chooses is as sacred as any other right, and a finding that the will is not valid, which is based on any other foundation than a conscientious conviction of actual incapacity, shown by the testimony, is a disgraceful outrage upon justice, and a plain violation of the oath under which the conclusion is asserted.’

“ It is the duty of the court to instruct the jury m plain terms what is meant by ‘ testamentary capacity.’

‘ ‘ Under the facts of this case, the law upon this question is embraced in a small compass. If, at the time he executed the will, the testator had sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep those facts in his mind long enough to dictate his will without prompting from others, he had sufficient capacity to make a will.”

Speaking further in the same case the distinguished jurist said:

“ The testimony in this case shows that Mr. Spratt commenced life a poor boy, and, by industry, economy, and business tact, amassed a fortune. It had never been supposed, down to the time of his last illness, that he was not capable of making valid contracts. He had formulated and signed a will in 1872, but the same was not witnessed nor published, in which he made Delia M. Spratt his residuary legatee. He also gave specific legacies to several of his relatives, all of whom are legatees named in the will in contest here; and it is worthy of note that the two nieces who were not mentioned in the last will are also omitted in the draft made by him in 1872.

‘ ‘ There is no claim made, and no testimony showing, that any undue influence was exerted upon him at the time or before he made his will, and but two questions were presented to the jury by the court, viz., the due execution of the will, and the mental capacity of the testator. He dictated the provisions of his will to a justice of the peace, Who seems to have written down quite literally, and who, failed to put the formal conclusion to it. There is nothing complex about the will. He makes certain specific legacies to certain specified persons, and in two or three instances increases them before he devises the residuary; but he states that he gives them in addition to what he had before given, showing that he had sufficient active memory to collect and retain in his mind the elements of the business he was transacting, and to perceive their obvious relation to each other. Looking upon the transaction as a whole, and testing it by the rules laid down by this court, it is difficult to perceive wherein he lacked that degree of mental capacity required to the execution óf a valid will.

“Judge Christiancy, in Kempsey v. McGinniss, 21 Mich. 141, says:

“‘But what degree of mental capacity is necessary to enable a testator to make a valid will; to what extent, and with what degree of perfection, he must understand the will, and the persons and property affected by it; or to what extent his mind must be impaired to render him incapable,—is a question of law exclusively for the court, and with which the witnesses have nothing to da’

‘ ‘ When no question of fraud or of undue influence is involved, but the question is one solely of mental capacity, and the fact is shown that the testator wrote or dictated the will without being prompted, and the will itself is intelligible and consistent in its provisions, and disposes of all the testator’s property, and there is nothing upon the face of it to indicate mental unsoundness, the testimony as to mental incapacity would have to be' very strong and convincing to defeat such will. I do not mean to say that more than a preponderance would be required, but that the facts suggested make a very strong case in favor of mental capacity.”

The testimony of the witnesses as to facts and circumstances on which their opinions rest may all be true, and .yet the testatrix’s mind may have been perfectly clear upon February 17th. Her attorney testifies that it was. Her acts are consistent with no other theory. And even Mrs. Gurd, who thinks that no sane woman would give the bulk of her property to a library association, admits that she saw nothing that day particularly indicative of incompetence.

We are not prepared to say that the court erred in admitting the opinion evidence, but we think he erred in modifying proponent’s twelfth request by inserting the words inclosed in brackets in the following, which is a copy of the request:

“ If you find from the evidence that Mrs. Terry made, in her own handwriting, a draft of her will, and at the time she made it she knew what she was doing, recalled to her mind at the time her property, her friends and relatives, and gave it to Mr. Plummer, and told him that, was how she wanted to dispose of her property [ and was then competent], and directed him to add to it a clause disposing of the balance of her property to the Benton Harbor Library Association, then you will sustain the will.”

In Aikin v. Weckerly, 19 Mich. 492, this court held, the following charge to state the law correctly:

“ To make the testator competent, he must have sufficient active memory to recollect in his mind, without prompting, the elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive their obvious relations to each other, and to be able to form a rational judgment in regard to them; and it is not sufficient in law that the testator be of memory, when he makes his will, to answer familiar and usual questions.”

The twelfth request embodied substantially all of this, if not more. It required that she be found to have performed the mental and manual labor of drawing her will, and that at the time she knew what she was doing, and recalled her property, her friends and relatives. If we give this language the meaning that the average man will attach to it,—and that is what we should do, —there is no reason for saying that it was not fairly comprehensive. Various judges have dressed this definition of testamentary capacity in different garbs, but it is the idea, and not the language of one or another judge, that is essential. We think the request sufficiently definite, under the proofs in this case. It was an attempt to give the jury a standard of mental capacity which they could use as a test. It was rendered abortive by inserting the additional words, “and was then competent.” As well might the judge have omitted the request as drafted, and told the jury to sustain the will “ if she was then competent.”

The refusal to give the sixteenth request is not so clearly erroneous. It is as follows:

“ If you find that the testatrix, on the Í7th day of February, 1899, the date of the execution of the will in question, had the mental ability to draft a memorandum of the way she wanted to dispose of her • property, and directed the disposal of the residue; if she remembered that the interest on a certain mortgage was past due, and the interest on the mortgage ivas past due; that she indorsed a check according to the usual business methods; and that she wrote the letter of identification of her sister to the paying bank,'—as a matter of law, the testatrix had the mental ability to execute the will in question.”

Counsel assert that the record contains no evidence of the refusal to give these requests; but it appears on page 144 of the record, while the exceptions tó these specific requests appear on page 134.

We also think the language of the court in arraying the witnesses against each other may have been harmful. There is much in the testimony of contestants’ witnesses which militates against the correctness of their opinions, and tends to show testatrix’s competency on February 17th. The testimony of Mr. Plummer was not necessarily inconsistent with that of the nurse and physician, and from their testimony the jury might well have hesitated to follow their expressed opinions as to her competency to make this will.

The order of the circuit court is reversed, with costs against contestants, and a new trial directed.

The other Justices concurred.


text:
    PEOPLE v. WHITE.
    Intoxicating Liquors — Location or Barroom—View or Bar from Street.
    2 Comp. Laws, § 5409, providing that, during the time when places where liquor is sold must be closed,, all curtains, screens, partitions, and other things that obstruct the view of the bar from the street shall be removed, is violated where a hotel barroom is located back of the office and cloakroom, so that, irrespective of any curtains or movable partitions, the bar cannot be seen from the street; and this notwithstanding the bar was maintained in the same place when the proprietor’s tax was accepted and his bond approved.

      Exceptions before judgment from Calhoun; Smith, J.
    Submitted February 15, 1901.
    Decided July 10, 1901.
    A. J. White was convicted of a violation of the liquor law,
    Affirmed.

      jW. W. Clapp and 0. 8. Clark, for appellant.

      Jesse If. Hatch, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted under an information charging him with failing to remove the “curtains, screens, partitions, and other things” that obstruct the view from the sidewalk, street, and alley in front and at the side of the building where his bar was located, and also charging that, if all the curtains and screens were removed, the bar was so located that it could not be seen from any public street or alley in front of or at the side of said building. He is the proprietor of the Williams House, in Battle Creek. In June he made an application to pay his liquor tax, stating in it “that he intends to engage in the business of retailing spirituous, malt, brewed, fermented, and intoxicating liquors at the Williams House, and that the place in which he proposes to carry on the business is the Williams House, East Main street, Battle Creek city, in the county of Calhoun, in the State of Michigan.” His tax was paid, and a receipt was issued to him as provided by section 5384, 2 Comp. Laws, stating the amount of the tax, and the time for which it was paid, and the kind of business,—i. e., to run a bar in the Williams House, on East Main street, Battle Creek, Mich.' The barroom and bar were located behind the check-room and office of the hotel, and where the place where the liquor is sold and kept for sale cannot be seen from any sidewalk, street, alley, or road in front of or at the side of said Williams House.

The following colloquy between the trial judge and the counsel for respondent will show the claim of respondent in the court below and here: After the proofs were closed,—

“ Mr. Clapp, on the part of the defendant, moved that a verdict of not guilty be directed by the court.

‘ ‘ The Court: Are you willing to state your reasons?

“Mr. Clapp: Yes, sir. That, according to the evidence, the barroom is not visible from the public street, and that the law does not require it to be visible from the public street; that, if it is located on a public street or alley, then the screens must be removed; that, if it is not so located, screens do not have to be removed; that, under the showing, the authorities have taken Mr. White’s money, and approved his bonds, last June, and are presumed to know the location of that- barroom, which is in the same location that it has been in for the past 10 years at least. Again, that the statute does not require or provide that a baiToom shall be located nest to a public street or alley.

‘ ‘ The Court: I think it is conceded that the bar or the place where liquors were kept for sale and sold in this saloon is not where it could be seen from any public street or alley, though the screens were up.

“Mr. Ciarle: Yes, sir.

. “ The Court: You claim that a man has a right to put a saloon in- that kind of a place ? If he does it, it is no matter whether he keeps his screens up or not ?

“Mr. Ciarle: He does it with the approval of the authorities, who approve his bond aud accept his money.

The Court: In a case like Mr. White’s ?

“Mr. Ciarle: Had Mr. White put up some of these obstructions after the bar had been located there, and after his money had been accepted and bond approved, it would raise a different question; but, the conditions all remaining the same after the bond was approved and the money paid, the statute not requiring a saloon to be on a public street or alley, we claim the defendant is not guilty of the offense.”

Counsel have called our attention to the following cases in support of their position: Shultz v. Village of Cambridge, 38 Ohio St. 659; Com. v. Barnes, 140 Mass. 447 (5 N. E. 252 ); Com. v. Stratton, 150 Mass. 188 (22 N. E. 893); and Courtright v. Common Council of Newaygo, 96 Mich. 290 (55 N. W. 808). A reference to these cases will show they are not controlling. In Shultz v. Village of Cambridge, supra, the respondent was charged with violating an ordinance forbidding any one, ‘ ‘ where intoxicating liquors are sold or furnished for * * * tippling or intemperance, to permit at, in, or about the doors, windows, or other openings of said prem-' ises, or in the interior of any house, shop, room, booth, arbor, cellar, or place where intoxicating liquors are sold or drank, any blind, screen, painted or frosted glass, shade, curtains, or other device to prevent a free and unobstructed view from the outside of said premises of the interior of the same.” The windows opening from the front room, where the bar was, were not obstructed. Between the front room and the second room, where liquor was drank at tables, was a permanent board partition, with a door in the center. It was claimed that the maintenance of the partition was a violation of the ordinance. In disposing of the matter the court said:

‘ ‘ General words following particular and specific words must ordinarily be confined to things of the same kind as those specified. Bish. Wr. Laws, §§ 245, 246; Hard. Const. Stat. 83; Maxw. Interp. Stat. 297; Denbow v. State, 18 Ohio, 11. Thus, in Reg. v. Cleworth, 4 Best & S. 927, Cockburn, C..J., said:

* ‘ ‘ There is a general expression, ‘ ‘ other person whatsoeverbut, according to a well-established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as' are ejusdem generis with those comprehended in the language of the legislature.’

“True, this rule is not to be employed in any caseto defeat the plain intent of the general assembly (Woodworth v. State, 26 Ohio St. 196; Beg. v. Edmundson, 28 Law J. M. Oas. 213), but the rule seems to be strictly applicable here. And, according to a general rule equally applicable, such general words, following particular descriptive words, do not include such a partition for the further reason that it is of a more permanent and important character than the things specifically mentioned.”

Wé think it very clear, had the word “ partition ” been in the ordinance, the ruling would have been very different.

In Com. v. Barnes, supra, the respondent had been licensed by the licensing board “ to sell-, or expose or keep for sale, until May 1, 1885, spirituous or intoxicating liquors to be drunk on the premises, to wit, in the front room and rear room, on the first floor, contiguous to street.” This building fronted on the street, and contained two rooms. The front room was separated from the rear room by a partition having two permanent openings the size of an ordinary door, which were unprovided with doors, and had never been screened. Looking through the window, the public had a complete view of the interior of the front room and of the business done there, and a view of a portion of the rear room through the permanent openings. The place where the liquors were kept was at all times within the view afforded by the window. The court held the respondent was not guilty, using the following language:

“We are of opinion that when a man is expressly licensed to sell intoxicating liquors ‘ in the front room and rear room ’ of a certain floor of a building, and is not required by the licensing board to remove the partition between the two rooms, that partition is not within the provisions of Pub. Stat. chap. 100, § 12, and Stat. 1882, chap. .259, § 1, although it may obstruct the view of the interior of one or the other of such rooms from the public ,,street. By Pub. Stat. chap. 100, § 6, the notice of application is to designate ‘ the building or part of & building to be used.’ By section 9, subd. 5, the license shall specify ‘ the room or rooms in which such liquors shall be sold or kept by a common victualler. No person licensed as aforesaid, and not licensed as an innholder, shall keep, sell, or deliver any such liquors in any room or part of a building not specified in his license as aforesaid.’ This language plainly imports that a license may be granted to sell liquors, not only in one room, but in more than one. If in one room alone, that room may be any room in the building, so far as any direct expression of the statute goes. If more than one are licensed, they must be separated by a partition, which may, and probably will, interfere with a view of the interior of one of them. As the statute seems to us to contemplate these possibilities, and to leave them to the discretion of the licensing board, we cannot read the provision that the board shall require the licensee to remove any obstruction which may interfere with a view of the interior of the licensed premises as limiting their power to license, or as requiring that all licensed premises shall be, or be turned into, front rooms on the lower story, any more than as requiring that the whole front of the building .shall be of glass. We think that a license might be granted to use a room on the second floor, or a back room, or a room lighted only by a skylight. A fortiori, we are of opinion that the prohibition against the licensee maintaining any partition ‘ upon any premises used by him for the sale ’ does not apply to leaving in statu quo the walls of the several premises contemplated by the license as remaining distinct.”

See Com. v. Stratton, supra.

It becomes important to inquire whether these decisions are applicable to the provisions of the Michigan statute. To determine this question it is well to look at the provisions of the Massachusetts statute. The laws governing the sale of intoxicating liquors in Massachusetts are found in chapter 100 of the Public Statutes, and the various amendments thereto. It is provided that the voters shall determine annually whether licenses to sell liquor shall be issued in their municipality or not. If they vote to issue licenses, the number to be issued is limited by law based upon population. Before one can obtain a license, he must make an application for a license. After this is done, notice of applications for licenses is published in a newspaper for 10 days, and such notice sets forth the name of the applicant in full, the class of license applied for, and a particular description of the premises on which the license is to be exercised, designating the building or part of a building to be used. Pub. Stat. Mass. 1882, chap. 100, § 6. The law provides for objections to the granting of a license at a given place or to a given person, and a hearing before the board of licenses, and the board may refuse to grant the license applied for. It will be seen a wide discretion is imposed upon the licensing board.

These provisions of law are very different, indeed, from the provisions of the Michigan statute. If one desiring to engage in the sale of intoxicating liquors in this State tenders to the county treasurer the tax imposed upon the business, and a proper bond, the county treasurer has no discretion, but must issue the tax receipt. He has nothing to do with deciding in what place the business shall be conducted. He has no discretion to say where the business shall be conducted, or to pass upon the fitness of the person who proposes to engage in it. All those things are provided for in the statute, and the statutory provisions must ‘be observed. The tax receipt in this instance authorized the business to be carried on in the Williams House, at Battle Creek. There were plenty of places in that building where the business could have been carried on so that the proprietor of it could have complied with the provisions of the law. If there was no such place, then the business should not have been engaged in. The language of the statute is not ambiguous. It reads as follows:

“ During the time when, by the provisions of this act, places where liquor is sold or kept for sale must be closed, all curtains, screens, partitions, and other things that obstruct the view, from the sidewalk, street, alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed.” 2 Comp. Laws, § 5409.

It was at one time urged that this statute was unconstitutional. This court held otherwise. Robison v. Haug, 71 Mich. 38 (38 N. W. 668). It was said in that case that the right to construct a building without windows, or with stained windows, or with curtained windows, is one of the uses the owner has a right to make of his property; but the court was of a different opinion. In the opinion of Justice Long it is said:

“ The business of selling intoxicating liquors is one which the legislature have an undoubted right to regulate or prohibit, and they have, therefore, the power to impose such conditions and restrictions upon the sale as, in their judgment, may seem wise, where such restrictions are applied to all alike, or to the same class alike. It is within the power of the legislative branch of the State government, and is a part of the police regulations, such as the State may make in respect to the sale of intoxicating liquors for the prevention of intemperance, pauperism, and crime. It is not for the courts to determine its expediency, or, as said by Mr. Cooley in his work on Constitutional Limitations, ‘ to run a race of right, reason, and expediency with the legislative branch of the State government.’ If the legislature may altogether prohibit the. liquor traffic, they may make such conditions if it is permitted to be continued, and place its sale under such restrictions, as will make it easy to detect any violations of law. * * * The business of selling intoxicating liquors has for many years, both in this country and in England, been regarded by legislatures and courts with disfavor; and it does not stand upon the same plane of utility and morality with many useful arts, trades, and professions. * * * It is necessary to the public peace that saloons shall be kept closed Sundays and holidays, and at late hours at night. Under this provision it is easy for an officer or other person to determine whether a saloon is open contrary to law. This section of the act must be held valid.”

In the same case Justice Campbell said:

‘ ‘ I think it competent for the legislature, in regulating the liquor traffic, to adopt regulations conducing to the full publicity of sales, and to require places of sale not to be shut out from view by putting up blinds and screens or other things intended to obstruct the view of the transactions which may go on at any hour in the sales-rooms.”

In People v. Kennedy, 105 Mich. 79 (62 N. W. 1020), it is said:

‘1 The object of the law is that the officers of a town, and not onty that, but that every person in town,—it is the privilege of every man or woman in the town passing along any street, sidewalk, or alley, where they have a right to be, that they shall have an unobscured and unobstructed view into a saloon through the windows, if there are windows, so as to see whether .or not the business is being carried on contrary to law. That is the object of it.”

It is competent for the legislature to surround the sale of intoxicating liquors with such limitations as are calculated, in its judgment, to minimize the evils of the traffic, and to make it easy to observe any failure to refrain from selling during prohibited times. The acts of the respondent are within not only the spirit, but the letter, of the law.

The conviction is affirmed. The case is remanded, with directions to the circuit judge to proceed to judgment.

The other Justices concurred.