text:
    DROSDOWSKI v. SUPREME COUNCIL OF ORDER OF CHOSEN FRIENDS.
    1. Mutual Benefit Societies — Age Limit — Directed Verdict— Evidence.
    It was error for the court to direct a verdict for the xilaintiff in an action uxDon a benefit certificate conceded to be void if the deceased was upwards of 61 years of age in 1885, when the certificate was issued, where the deceased’s brother-in-law, an unwilling witness for defendant, testified that he was born in 1829, and that the deceased was six or seven years his senior.
    2. Depositions — Reasonable Notice of Taking — Abuse of Discretion.
    It was not an abuse of discretion for the court to exclude a dejiosition taken January 14th at Indianapolis, upon the ground that reasonable notice of the taking of the same had not been given, as required by Act No. 180, Pub. Acts 1895, § 1, it appearing that the notice was served uxion the attorney at Detroit, 267 miles from Indianapolis, on January 10th, while court was in session, and that a Sunday intervened between January 10th and January 14th.
    3. Same — Church Records — Sworn Copies.
    A deposition showed that deponent was a minister at A., in East Prussia, and had custody and control of the church records, containing the records of those who had been christened and confirmed in said church; that the records were kept according to the regulation's of the royal consistory, and had been so kept for more than two centuries; that deponent had inspected such records; and that it ax>peared therefrom that one C. was baptized on March 17, 1822, when he was seven days old, and that he was born at G., in East Prussia. The deposition directed: “Q. If witness answers ‘Yes’ to the last question [as to the inspection of the records], please attach here a copy, made by your own hand, and compared with the original by yourself, of so much of said records as pertains to the christening of said C., of the age of said G. when christened, and of the birthplace of said C.” Following such direction was the recital, “A. [Copy attached],” and said copy recited: “According to the local church record, it is hereby officially testified that to [a certain person] of G., * * * by his lawful wife,” a child “was born on the 10th of March, 1823, who was baptized on the 17th of March of the same year, and received the name of ‘0.’ Evangelical Church at A., East Prussia, December 9, 1895. R., Minister. [Church Seal],” Held, that the record attached to the deposition was a sworn copy of the church record, and hence the deposition was admissible in evidence on the issue of C.’s age.
    Error to Wayne; Hosmer, J.
    Submitted April 28, 1897.
    Decided September 14, 1897.

      Assumpsit by Marie Drosdowski against the Supreme Council of the Order of Chosen Friends upon a benefit certificate. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Dickinson, Thurber & Stevenson, for appellant.

      Thomas Hislop, for appellee.
   Moore, J.

Carl Drosdowski became a beneficiary member of defendant order in 1885. He died in 1889. His daughter, the beneficiary named in the certificate of membership, recovered a verdict for .$1,362. The jury returned this verdict by direction of the court. Defendant appeals.

The constitution and by-laws of the order were received in evidence. These show that a person upwards of 61 years of age cannot become a beneficiary member of the order, though he may become a social member of the order. The certificate of membership was received in evidence, and an attempt was made to introduce the application, but it was excluded. The certificate was issued from Germania Council, No. 68, of defendant order, which council is located at Grand Rapids. The record shows that Dr. Holden was the local examiner of that council in March, 1885, and that on the 25th of that month Carl Drosdowski was examined by the doctor for membership in that council, and that at that time the doctor was told by Drosdowski that he was GO years oíd. Frederick Reinholtz was sworn as a witness on the part of the defendant. His examination shows him anxious to help the plaintiff, and unwilling to give any testimony that would aid the defendant. He testified that he was a brother-in-law of the deceased, Drosdowski; that he first knew him in Germany; that witness was born August 30,1829; and he testified at one time, when he was on the Witness stand, that Drosdowski was G years older than he, and at another time he testified that Drosdowski was 7 years older, and that he was so told by Drosdowski when he became his brother-in-law, which was, according to the statement of the witness, more than 40 years before the time he was testifying. In view of this testimony, we think the court erred in taking the case from the jury; and, as a new trial will be ordered, other questions call for discussion.

The deposition of Mr. Linn, taken in Indianapolis January 14, 1896, was offered in evidence. This suit was commenced in 1891. The notice to take Mr. Linn’s testimony came to Mr. Hislop at Detroit January 10th. Indianapolis is 267 miles from Detroit. Court was in session in Detroit. One Sunday intervened between January 10th and January 14th. On the return of the deposition, Mr. Hislop objected to it, because reasonable notice had not been given. The court refused to receive the deposition. It is said this is error.

The deposition was taken under the provisions of section 1, Act No. 180, Pub. Acts 1895, which provides that reasonable notice must first be given in writing of the taking of a deposition. This law had been in effect but a short time when the deposition was taken-. Prior to the enactment of this law, the statute required 20 days’ notice for more than 240 miles of travel. Where the statute provides for reasonable notice, the court must decide, in a given case, whether the notice required by the statute has been given, and in coming to a conclusion must be governed somewhat by the circumstances surrounding the case. The circuit judge knew better about the surroundings of this case than we do. We are not prepared to say that the court erred in refusing to receive this deposition. Weeks, Dep. § 270; Wade, Notice, § 1234; Harris v. Brown, 63 Me. 51; Sing Cheong Co. v. Yung Wing, 59 Conn. 535; Harris’ Appeal, 58 Conn. 492.

Two depositions in relation to the contents of church records in Germany were offered and rejected. It will be necessary to consider but one of these, as they are so near alike. _ It was admitted the depositions were properly taken and sworn to. Objection was made to their substance. The trial court based his refusal to receive these depositions upon the case of Tessmann v. United Friends, 103 Mich. 185. The deposition of Rogowski showed that he was a minister at Alt Christburg, and had custody and control of the church records, which contain the records of those who have been christened and confirmed in the church of which he was minister; that the records are kept according to the regulations of the royal consistory, and have been so kept since 1661.

“Q. Have you inspected the records of the church at Christburg, West Prussia, for the purpose of ascertaining (a) what they contain relative to the time that one Carl Drosdowski was christened; (b) what the said records state the age of said Drosdowski to be at the time that he was christened; and (c) what said records state the birthplace of said Carl Drosdowski to be ?
“A. I have examined the archives of the church at Alt Christburg, East Prussia, (a) Carl Drosdowski is baptized on March 17, 1822; (b) seven days; (c) Goerken, in the district of Mohrungen, East Prussia.
“Q. If witness answers ‘Yes’ to the last question, please attach here a copy, made by your own hand, and compared with the original by yourself, of so much of said records as pertains to the christening of said Carl Drosdowski, of the age of said Carl Drosdowski when christened, and of the birthplace of said Carl Drosdowski.
“A. [Copy attached.] ‘ According to the local church record, it is hereby officially testified that to Christina Drosdowski, of Goerken, in the district of Mohrungen, East Prussia, by his lawful wife, Gottliebe, née Chorougewke, a son was bom on the tenth (10) of March, 1822 (eighteen hundred and twenty-two), who was baptized on the seventeenth of March of the same year, and received the name of “ Carl.”
“ ‘Evangelical Church at Alt Christburg, East Prussia, December 9, 1895.
“ ‘ Rogowski, Minister.’ ” [ Church Seal.]

We think the court erred in thinking the case of Tessmann v. United Friends, supra, justified the exclusion of these depositions. In the Tessmann Case, the papers which were offered were neither sworn nor certified copies of the entries in the books, but were simple assertions that a certain fact was shown by the register of the parish. A fair construction of the language used in the depositions in this case is that the record attached to the depositions is a sworn copy of the church record. We think they should have been received as evidence. Hunt v. Order of Chosen Friends, 64 Mich. 671 (8 Am. St. Rep. 855).

Judgment is reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    McCARTHY v. SLEIGHT.
    1. Judgment — Res Judicata — Estoppel.
    Where a lessor interposes by way oí set-off, in an action by the widow of one of two joint lessees, a claim upon a promissory note executed by the lessees jointly, and thereafter allows judgment to be entered against him in such case upon the express agreement with the attorney for the surviving lessee that the settlement shall not preclude the interposition of the claim in a pending suit by such lessee, the latter is estopped from asserting that such judgment is res judicata as to the lessor’s claim upon the note.
    2. Joint Obligations — Liability op Survivor — Set-ofe.
    A note executed by joint lessees to the lessor may be interposed as a set-off in an action against the lessor by one of the lessees, after the death of the other, for services performed for the lessor during the continuance of the lease.

      Error to Clinton; Daboll, J.
    Submitted April 29, 1897.
    Decided September 14, 1897.

      Assumpsit by James McCarthy against Jacob P. Sleight for work and labor performed. Prom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Lyon & Booling, for appellant.

      L. B. Gardner, for appellee.
   Moore, J.

October 15, 1892, the plaintiff and William K. Smith leased from the defendant his farm of 320 acres for a period of three years from the 1st of the following March. On the 12th of October, 1892, they gave the defendant their note, payable in one year, for $133.65, for things purchased by them of defendant. At this time they were both single men, who intended to be married a little later, which fact was communicated to the .defendant. Through some arrangement, about which the parties are not agreed, McCarthy and Smith moved upon the farm soon after October 15th, and remained upon it until the lease took effect, taking care of the stock belonging to themselves and also of that belonging to the defendant. It is the claim of the plaintiff that he and Mr. Smith did some work for the defendant during the winter, for which they should receive pay. It is admitted by defendant that McCarthy and Smith drew lumber, cut ties, and did other work for him, for which he ought to pay them. McCarthy and Smith used hay and grain belonging to the defendant, which it is admitted they should account for. When March 1st arrived, Smith and McCarthy began to work the farm under the lease, and continued to do so until Smith died, August 15,1893. Some time after his death, the defendant, McCarthy, and Mrs. Smith attempted to arrive at some arrangement to adjust the differences which had grown up between them and Mr. Sleight, the latter to have possession of the farm. Two men were called upon to settle the dispute between them. The testimony is conflicting as to what was submitted to these men, and what was done. The parties were not able to adjust all their differences, and on September 6, 1894, Maggie Smith, widow of William "K. Smith, brought suit against Mr. Sleight to recover-what was due her husband growing out of these various transactions, and to recover for various items personal to Mr. Smith. She obtained judgment against defendant, from which judgment an appeal was taken to the circuit court, by the defendant October 23, 1894. On October 22, 1894, this suit was commenced in the circuit court by Mr. McCarthy to recover for his interest growing out of the various transactions between McCarthy and Smith and the defendant. Bills of particulars were filed by the plaintiffs in both of these cases, and a bill of particulars, of set-off was filed in both cases by the defendant, and in both of these particulars of set-. off some of the same items appear. The same attorneys appeared for the plaintiffs in both of these cases. On February 11,' 1895, Mr. Sleight consented in open court that a judgment should be rendered against him in the Smith case, but he claims that it was upon the condition that it should not affect any defense he might have in the McCarthy case. His claim in that regard was disputed. This case was tried before a jury, who rendered a verdict in favor of the defendant in the sum of $155. Plaintiff appeals.

The trial judge was asked to charge the jury that they must disregard all of the items of set-off that were involved in the Smith case. He was also asked to charge them that they could not allow the promissory note as a set-off in this case, because it was not a mutual claim within the meaning of the statute. He was also asked to charge that defendant testified in justice’s court in the Smith case, that he had released McCarthy on all of the items of set-off in this case, and that they could not include those items in this case. He was also asked to charge that, if defendant testified in justice’s court that he had released McCarthy on all the items of set-off, he could not be allowed for them in this case. The court declined to give these requests except as incorporated in his general charge. The trial court charged the jury at great length. It will be necessary, however, to quote only a portion of his charge, to raise the questions involved:

‘1 It seems that, after the death of Mr. Smith, his widow, Maggie Smith, brought an action in justice’s court to recover, as I understood the claim to be, for a share of this property, and perhaps some other items that have been discussed here, and I need not refer to them, that her husband would have been entitled to were he alive at that time. I don’t understand that any personal claim, aside from that, was concerned in that suit. If I am wrong about that, counsel will correct me; but I think I am not. It further appears that, in the bill of particulars presented by Mr. Sleight — -and that action, you know, was against Mr. Sleight — and passed upon by the jury in the justice’s court, a large number of items now offered as an offset here were contained and set out in that bill of particulars, and Mr. McCarthy and his attorneys claim that all of the matters are named, or at least a large number of the matters now concerned were litigated there; that Mr. Sleight presented them there as a claim or offset against the claim made by Maggie Smith; and that, having once presented them in a court competent to try that question, and the jury having considered them as to whether or not they were owing, and owing in such a way that they were a proper set-off, that he is now precluded from offsetting them in this case. I think it is conceded that in that bill of particulars, as to all these claims about the property, and the matters arising there, including some personal property and some farm tools, that the claim was made on the part of Maggie Smith for one-half of the amount that was owing to her husband, and that Mr. Sleight, in his bill of particulars, asked for the entire amount owing by Mr. Smith and Mr. McCarthy to him; and they say that, that having been litigated and passed upon there, he is barred from presenting or having it allowed here.
“If it was passed upon there, — if Mr. Sleight did present the accounts, and they were passed upon there, — and the jury there decided whether or not it was owing Mr. Sleight in such a way as he could offset, and nothing had occurred since then to change that relation, then that would be a good defense to that claim, because Mr. Sleight would then have litigated that in a proper court, and submitted it to the jury to pass upon, and he would be bound by the finding there, and he could not have it allowed or disallowed here again, as he would be bound by the determination of the jury. There is some question of evidence in the case, however. I am going to submit that to you upon the question as to whether he is so bound or not, and you will find from the evidence whether that was the truth or not. It is the evidence given by Mr. Sleight and by Mr. Dooling, with any other evidence in the case that may bear upon that issue, and will be considered by you in arriving at the truth,' — the evidence wherein Mr. Sleight claims that, at the time he made the arrangement here, after he appealed that case to this court, that a judgment was to be rendered here of $120 against him. He claims that an arrangement was made at that time whereby it was agreed by Mr. Dooling, on behalf of Mrs. Smith, and he claims that he also represented at that time Mr. McCarthy, — and you have heard the evidence as to that point, — whereby it was said that as to his claim against McCarthy, or his right to offset his account against McCarthy, should not be affected by the entering of this judgment here. Mr. Dooling says, as you have heard his evidence and his argument here, that no arrangement of that kind was made; that he had no idea of it. You will find from the evidence in the case what the truth is as to that, and that will determine the right of Mr. Sleight to offset any matters that were litigated there. You will determine on that matter as to what those two men agreed to. So far as that suit being a bar, I don’t think it would be a bar, because, after the appeal from that judgment, I think they had the right to make that arrangement if they wanted to; and whéther they did or not is a question left entirely to you. I have no notion upon it one way or the other, and if I had I could not express it. * * *
“There is another question upon which I am requested to charge you, and do. It is claimed upon the part of one side that Mr. Sleight swore in the justice’s court that he had released McCarthy entirely from that claim; that he so swore, whén he presented his claim at that time, that he released him, and did not claim anything against him. Now, if that is true, if Mr. McCarthy was released, then the simple withdrawal of that claim from the operation of the other suit would not reinstate him in his rights. It might get it out from under the operation of that suit, but it would not hold Mr. McCarthy again if he had once been, released. So, if you should find that he had been once released, then, as the evidence stands in the case here, I know of no evidence in the case showing that he had been reinstated, or that the account had ever taken such shape that it could be offset; but these are all matters for you to find the truth of from the evidence.
‘ ‘As to the promissory note, that is in the same situation. It is one of the matters claimed as an offset in the suit of Maggie Smith and Mr. Sleight, and if he was released from it that would bar it; but if Mr. McCarthy was still liable upon it, never released in any way, then I charge you that, Mr. Smith being dead, and the liability originally being joint between both, as to the note, it would survive against him alone, and, if nothing has occurred, as I have indicated, to bar that right, then Mr. Sleight, as owner of the note, would have the right to offset it in this case. It being originally a joint liability, and one of the joint makers being dead, it may be offset against the man bringing the action.
“I think the same thing is true as to any of the joint matters growing out of the terms and conditions of this contract wherein Mr. McCarthy and Mr. Smith were jointly liable. They were connected jointly with that contract, and would be jointly liable to Mr. Sleight to carry out all the provisions of the contract, and liable for any property personally delivered to them under and by virtue of the contract wherein they were jointly liable; but, in regard to the work done by them for Mr. Sleight outside of the contract, there would not be that joint liability, but each would be entitled to recover for the work each did, or, as to anything they had of him outside of the contract, there would be a claim on the part of each party for the part or share each had, in the absence of the showing of any assignment of the other’s share; and none is shown here, and he could recover for the property delivered or owing for by the other., and Sleight could only set off that part in this suit. In other words, no joint liability exists here unless there was an arrangement to that effect, which is not claimed here, aside from the matters arising from the trial and the note. As to these matters that are joint, the death of Mr. Smith leaves them in the same shape that it does the note, and, if they are proper matters of offset jointly, as the survivor stands in the same relation, I think they may be offset against him. In other words, Mr. Sleight can have the benefit of them in this suit, if it is not barred by some of the reasons Í have given you, against the claim made here by Mr. McCarthy, because Mr. McCarthy is the survivor, and the debt is joint'; and that is true as to all the matters that are in the same situation under these instructions.”'

No administrator had been appointed of the estate of William K. Smith, deceased. Mr. Smith left an infant child. No claim of McCarthy and Smith had been assigned to Mi’s. Smith, and it is the claim of the defendant that she was not entitled to bring suit, and that a suit by her would not bar the representative of the estate of her husband, should one be appointed, from bringing suit, and that a judgment obtained by her could not be pleaded in bar in a suit brought by Mr. Smith’s administrator against Mr. Sleight. We do not think it necessary to discuss that contention.

It was the claim of Mr. Sleight that he allowed a judgment to be entered in the Smith case against him upon the express agreement with the attorneys for both Mrs. Smith and Mr. McCarthy that his doing so should not preclude the interposition of his defense in this case. This claim was disputed, but it was admitted by, the attorney for Mr. McCarthy that it was agreed that the settlement of the case of Maggie Smith should be no settlement of any matter between Mr. McCarthy and Mr. Sleight. The court submitted the question to the jury as to just what the arrangement was at the time the judgment was rendered in the Smith case. The jury evidently accepted Mr. Sleight’s version. The differences that existed between Mr. McCarthy and Mr. Sleight were indicated on each side respectively by their respective bills of particulars, and we do not think it either law or justice to now say that, because Mr. Sleight settled his differences with Mrs. Smith, he cannot now avail himself of the defense which he reserved the right to make in the McCarthy case. The charge of the judge was quite as favorable to the plaintiff as he was entitled to have it.

The claim of the plaintiff grew out of the dealings of McCarthy and Smith with Mr. Sleight. - The note was given by them in relation to some of these dealings. At the time of this suit Mr. Smith was dead. It was proper to use the note by way of setoff against the claim of plaintiff. Newberry v. Trowbridge, 13 Mich. 263.

It is said by appellant that the court erred in not stating to the jury with reasonable clearness plaintiff’s theory of this case, and that he did not correctly charge the jury as to the burden of proof. A selection of one or two sentences out of the charge can be made that, standing by themselves, would tend to support this view. The charge was a long one, and, when taken as a whole, we think it correctly stated the law, and any failure to state it correctly in the detached sentences was corrected, and that the jury were not misled.

Judgment is affirmed.

The other Justices concurred.


text:
      In re SULLIVAN’S WILL.
    1. Wills — Attestation — Death of Subscribing Witnesses — Statutes.
    The death of the subscribing witnesses to a will is a contingency-covered by section 5789, 2 How. Stat., providing that, if the witnesses are competent at the time of the attestation, their subsequent incompetency, “from whatever cause,” shall not prevent the probate of the will, if it be otherwise satisfactorily proved, rather than by section 5808, providing for the admission of testimony to prove the sanity of the testator and the execution of the will where none of the subscribing witnesses shall “reside in the State” at the time appointed for proving the will.
    2. Same — Proof of Execution — Sufficiency.
    A finding that a will, the subscribing witnesses to which were dead at the time of its probate, was “satisfactorily proved,” within the meaning of section 5789, is sustained by evidence that the testatrix was possessed of testamentary capacity at the time of its execution; that it was in the handwriting of a practicing lawyer of good repute; that the attestation clause was in compliance with the x>rovisions of the statute; that, on the day of its execution, it was delivered into the custody of the probate judge, who gave his receipt therefor; that the testatrix intrusted the receipt to her sister-in-law, to be delivered to the beneficiary upon the death of the testatrix; and that in subsequent conversations, the last of which occurred a short time before her death, the testatrix indicated that she understood what the paper was, and professed anxiety that it should be properly delivered.
    Error to Kent; Adsit, J.
    Submitted April 30, 1897.
    Decided September 14, 1897.
    Patrick Sullivan presented for probate the will of Catherine Sullivan, deceased. From an order allowing the same, James Sullivan and John Sullivan appealed to the circuit court, where the order was affirmed. Contestants bring error.
    Affirmed.

      Thompson & Temple and Birney Hoyt, for appellants.

      W. D. Fuller, for appellee.
   Moore, J.

May 3, 1882, Catherine Sullivan made a paper, afterwards probated as a will. The paper is in the handwriting of John McNamara, one of the subscribing witnesses, except the signature of the other subscribing witness. The signing and attestation are as follows:

“In witness whereof, I have hereunto set my hand and seal this 3d day of May, A. D. 1882.
her
“Catherine X Sullivan. [Seal.]
mark
“The above instrument, consisting of one sheet, was at the date thereof signed, sealed, and published and declared by the said Catherine Sullivan as and for her last will and testament, in the presence of us, who at her request, and in her presence, and in the presence of each other, have subscribed our names as witnesses thereto. The words ‘five hundred dollars’ on second page were erased previous to the execution of the above will.
“JohnC. Quinsey, of Grand Rapids, Michigan.
“John McNamara, Grand Rapids, Michigan.”

August 8, 1882, John McNamara died. The other witness died July 14, 1892. Catherine Sullivan died March 18, 1896. Mrs. Sullivan was unable to write. The same day the paper was executed, it was left at the office of the probate judge, and a receipt given for it. This receipt was put in an envelope, and 12 or 13 years before the death of Mrs. Sullivan was delivered by her to her sister-in-law, Mrs. Howell, with instructions to deliver it to Patrick Sullivan, who was then absent from the State. After the death of Mrs. Sullivan, the paper was found in the office of the judge of probate. It was offered for. probate as a will, and allowed, from which allowance an appeal was taken to the circuit court, where it was again allowed, from which allowance an appeal is taken to this court. No witness testified to seeing the testatrix make her mark, or to seeing any person make her mark for her, or to hearing her authorize any one to sign the will for her. There is testimony to the effect that Mrs. Sullivan frequently spoke to Mrs. Howell about her custody of the receipt she had delivered to her, and shortly before her death indicated anxiety to have it given to Patrick, stating it was a paper for Patrick, to show there was a package in some court. Testimony was also offered showing that Mrs. Sullivan, at the time the paper was executed, was of sound mind, and competent to make a will. On the part of the contestants, there is evidence that Mrs. Sullivan said she should make no will. The contest is made upon the ground that there is a failure to prove the execution of the will in any of the methods provided by the statute, and that for that reason it ought not to have been probated.

The record discloses that Mr. Quinsey was competent to be a witness at the time the paper was executed, but afterwards became insane, and died before the paper was probated. It also discloses that Mr. McNamara, at the time the paper was drawn, was a practicing lawyer, residing in Grand Rapids. The provisions of the statute in relation to the execution and probating of wills, so far as they have any possible bearing upon the question at issue here, are to be found in the following sections of 3 How. Stat., which read:

Section 5789. “No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompet ency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved.”
Section 5803. “If none of the subscribing witnesses shall reside in this State at the time appointed for proving the will, the court may, in its discretion, admit the testimony of other witnesses to prove the sanity of the testator and the execution of the will; and, as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses. ”

We think it apparent from the reading of the last section that it refers to a case where the witnesses to the will are living, but beyond the jurisdiction of the court, and that, under the provisions of section 5789, if the attesting witness, at the time the will is executed, is competent to be a witness, his subsequent incompetency by reason of sickness, death, or from whatever cause the incompetency may arise, shall not prevent the probate and allowance of the will, “if it be otherwise satisfactorily proved.”

Were the probate court and the circuit court justified in their conclusion that the will was satisfactorily proved? It was shown beyond controversy that Mrs. Sullivan was competent to make a will at the time it was made. The paper is in the handwriting of Mr. McNamara, a practicing lawyer, and a man in good repute, so far as the record discloses. The attestation clause was in compliance with the provisions of the statute. On the same day the paper was executed, it was delivered into custody of the court having jurisdiction over wills. A receipt was given for it, which passed into the custody and control of Mrs. Sullivan, and by her was intrusted to her sister-in-law, to be delivered to the beneficiary named in the will upon the death of Mrs. Sullivan. Subsequent conversations between Mrs. Sullivan and Mrs. Howell, the last one of which was shortly before Mrs. Sullivan’s death, indicated that Mrs. Sullivan understood what the paper was that she had intrusted to her friend, and understood that it related to a paper that was then in the custody of the court, in which the son, her beneficiary, was interested. What inferences may reasonably be drawn from such testimony ? We think this testimony may be regarded as establishing beyond controversy — First, that Mrs. Sullivan was competent to make a will; second, that the paper was drawn by Mr. McNamara, and that it was witnessed by Mr. Quinsey and Mr. McNamara; third, that the attestation clause is established by competent testimony. If this be regarded as established, what inferences may be drawn from it ? In the absence of any testimony impeaching the act, I think some inferences as to the existence of the facts therein stated are to be drawn from the draft of an instrument made in the form provided for by the statute, which instrument is shown to have been drawn by a reputable attorney, an officer of this court. Indeed, some inferences are to be drawn from the attestation clause itself, irrespective of who drew it, when it is once proven. As said in Abbott v. Abbott, 41 Mich. 540:

“We know of no rule of law which makes the probate of a will depend upon the recollection, or even the veracity, of a subscribing witness. The law, for wise and obvious reasons, requires such instruments to be executed and attested with such precautions as will usually guard against fraud. But if the forgetfulness or falsehood of a subscribing witness can invalidate a will, it would be easy, in many cases, to use such artifices or corruption as would render the best will nugatory. _ Their evidence is not conclusive either way, nor does the law presume that they are either more or less truthful than others. It presumes they had when they signed full- knowledge of what they were doing, and in case they are dead their attestation, when proved, is prima facie evidence that all was done as it should be.”

In Barnes v. Barnes, 66 Me. 286, it was said:

‘ ‘ It would be monstrous if a will was to be defeated because, after a great lapse of time, the witnesses may have forgotten the facts attending its execution. A proper attestation clause, showing that 'all the statutory formalities have been complied with, will, in the absence of proof to the contrary, be presumptive evidence of the fact after the death of the attesting witnesses, or their failure to recollect what took place at the execution of the will.”

In Nickerson v. Buck, 12 Cush. 332, the question involved was whether or not the will had been duly executed according to the requirements of law. It appeared that the will was written by John Eenrick, the first attesting witness, and that he had since deceased. It was said:

“All that is requisite to the due execution of a will is the actual signature of the same, written by the testator, or by some one in his presence and by his express direction, and that the will be attested and subscribed, in the presence of the testator, by three or more competent witnesses [Rev. Stat. 1836, chap. 62, § 6]. The signature of the testator in this case was, so far as he personally subscribed it, a signature by making an ‘X,’ but his name was appended to the cross, to indicate the intended signature, and from the comparison of handwriting it is quite obvious that it was thus written by John Eenrick, whose name is first borne on the list of attesting witnesses. It is proved that this witness had deceased before the trial. But the death of an attesting witness, or of all of the attesting witnesses, is not to defeat the validity of the will if in fact duly executed. It changes the form of the proof, and allows of the introduction of secondary evidence of the due attestation and execution of the will. Such attestation is then to be shown as it would be in the case of deeds, by proof of the handwriting of the witness. That being shown, prima facie, it is to be taken to be true, and to have been put there for the purpose stated, in connection with the signature-. It is to be assumed, as regards that withess, that he duly attested the will in the presence of, and at the request of, the testator. In considering the sufficiency and weight of the evidence to establish the due and proper execution of this will, the fact of the death of this witness, and the presumptions that arise from proof of his handwriting, are somewhat material. As regards this witness, if nothing appears in other parts of the evidence to control the presumption resulting from proof of his handwriting, it may be taken that, as to his attestation, it was properly made to the signature by the testator.”

See, also, Chaffee v. Baptist Missionary Convention, 10 Paige, 85; In re Kellum’s Will, 52 N. Y. 517; Brinckerhoof v. Remsen, 8 Paige, 488.

We think, applying the reasoning to be found in these cases to the provisions of our statute, and the evidence disclosed by the record, that it fully justifies the conclusions of the probate and circuit courts.

We have not overlooked the decisions, cited by counsel, of In re Reynolds, 4 Dem. Sur. 68; Worden v. Van Gieson, 6 Dem. Sur. 237; In re Walsh’s Will, Tuck. 132; In re Phelps’ Will, 1 Con. Sur. 463,—but those cases were not followed in the later case of In re Hyland’s Will, (Surr.) 27 N. Y. Supp. 961, and a very good reason was shown why they should not be. See, also, Peebles v. Case, 2 Bradf. Sur. 226; Hitch v. Wells, 10 Beav. 84.

Judgment is affirmed.

The other Justices concurred.


text:
    GEORGIA v. BOND.
    1. Slander — Witnesses—Credibility—Cross-Examination.
    In an action for slander in charging plaintiff, a stock buyer-, with cheating in the weight of defendant’s hogs, it was proper, as bearing on the credibility of the plaintiff, who had taken the stand in his own behalf, to permit defendant’s counsel to ask him, upon cross-examination, questions tending to show that he had been dishonest in weighing stock for'others.
    2. Same — Evidence—Reputation—Damages.
    Evidence of plaintiff’s bad reputation for honesty and uprightness in a place where he had formerly lived was admissible on the question of damages.
    8. Same — Malice.
    Defendant in an action for slander may give his version of the conversation alleged to have been slanderous, even though he has given notice of justification, and though such version includes statements not narrated by plaintiff, since the additional words may throw light upon the question of malice.
    Error to Clinton; Dodds, J., presiding.
    Submitted April 30, 1897.
    Decided September 14, 1897.
    Case by Schuyler Georgia against William Bond for slander. From a judgment for plaintiff for nominal damages only, he brings error.
    Affirmed.

      Lyon & Dooling, for appellant.

      Fedewa & Walbridge, for appellee.
   Moore, J.

In the fall of 1894 plaintiff was buying stock at St. Johns. The defendant is a farmer living in that vicinity. In November, 1894, the defendant sold some hogs to plaintiff, and he claims that plaintiff cheated him in the weight of them. In February, 1895, the parties had some talk about this transaction, and it is claimed by plaintiff that defendant accused him of cheating him out of a hundredweight of hogs, and also accused him of cheating others. Plaintiff sued defendant in an action of slander. Defendant pleaded the general issue with notice of justification. Plaintiff made a demand of a bill of particulars of the times, places, and persons that plaintiff had cheated in the weight of hogs. No bill of particulars was furnished. On the trial the circuit judge instructed the jury that under the pleadings the defendant could not justify the speaking of the words accusing plaintiff of cheating others, and that the jury must return a verdict in favor of the plaintiff in relation to that charge. The jury answered the following question affirmatively: “Did the plaintiff intentionally cheat the defendant out of one hundred pounds in weight of the hogs in question?” The jury returned a verdict in favor of plaintiff, and assessed his damages at six cents. Plaintiff appeals.

On the cross-examination of the plaintiff, he was asked questions tending to show that he had been dishonest in weighing stock for other people. This is said to be error. We understand the rule to be that when a party becomes a witness in his own behalf it is the right of the cross-examiner to learn about his antecedents and character, so that the jury may know how much credit to give to his testimony. Ritchie v. Stenius, 73 Mich. 563.

Testimony was given of the bad reputation of the plaintiff for honesty and uprightness in Bengal, where he used to live. It is now said that this was error. Objection was not made at the trial on the ground that the question was not limited to his reputation before the slanderous words were uttered. The objection was put upon the ground that his reputation for honesty and uprightness was not in issue. This testimony related to a time when plaintiff was a resident of Bengal, which was some time before the trial; and, taking the record as it stands, the only question open for discussion is, was it competent as affecting the: question of damages? We think the rule is well settled that it is competent to show the reputation previous to the utterance of the alleged slander, as bearing upon the question of damages. Bathrick v. Tribune Co., 50 Mich. 629 (45 Am. Rep. 63); B- v. I-, 22 Wis. 372; Bridgman v. Hopkins, 34 Vt. 532; Clark v. Brown, 116 Mass. 504; Newell, Defam. 890. The court charged the jury that this testimony was received and could be considered only for that purpose.

Complaint is made that defendant was allowed to testify to other statements made by him than those claimed to be slanderous, in connection with the charge that plaintiff had cheated him out of a hundred pounds in the weight of his hogs. It is claimed this is not allowable under his plea of justification. Plaintiff had given his version of the conversation alleged to be slanderous. We think it was competent for defendant to give his version of the conversation, even though it included some statements not narrated by plaintiff. These additional words might throw some light upon the question of malice. Ritchie v. Stenius, 73 Mich. 563; Newman v. Stein, 75 Mich. 402 (13 Am. St. Rep. 447); Ellis v. Whitehead, 95 Mich. 105.

The other assignments of error have been considered, but we do not think it necessary to discuss them.

Judgment is affirmed.

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


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    KNAPP v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    1. Railroad Companies — Defective Crossing — Injury to Brakeman — Theory of Accident — Conjecture.
    In an action against a railroad company for the death of a brakeman, it appeared that the deceased was fatally injured on a dark night while attempting to couple cars at a street crossing; that one of the planks at the crossing between the rails had split off near one end, leaving a space sufficiently wide to admit a man’s foot; that deceased’s version of the accident, given directly after it occurred, was that “he got caught in the planking between the plank and the- rail, and the brake beam pushed him back;” that blood was found on the ground, close to the defect in the planking; that the deceased was picked up about two car lengths from the crossing, and that the space between the rails looked as though a body had been dragged along for that distance. Held, that it was not error to refuse to direct a verdict for defendant on the ground that it was purely conjecture as to whether the deceased caught his foot or merely stumbled against the end of the planking.
    2. Same — Contributory Negligence — Evidence.
    The testimony of another brakeman, who saw the deceased go in front of the car which was being backed down for the coupling, to change the coupling link, that that was a part of deceased’s duty as a brakeman, and was the proper thing to do, was sufficient to defeat the contention that the testimony showed the deceased to have been negligent as a matter of law.
    3. Trial — Jury—Instructions as to Disagreement.
    At a late hour, the jury were brought in, and instructed how to return a sealed verdict, and were told that, after they had agreed, they might notify the sheriff, who would discharge them until morning. To a question by a juror, “If we don’t agree, we stay until we do agree?” the judge replied, “Certainly; the sheriff will not allow you to go.” Held, to convey the idea to the jury that they were merely to keep together until morning, unless they agreed before, and not that they were to be kept indefinitely unless they agreed.

      Error to Oceana; Russell, J.
    Submitted April 30, 1897.
    Decided September 14, 1897.
    Case by Nellie Knapp, administratrix of the estate of Lyman H. Knapp, deceased, against the Chicago & West Michigan Railway Company, for negligently causing the death of her intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Frank H. Smith, for appellant.

      Lovelace & Pringle and Broivn & Adams, for appellee.
   Moore, J.

March 29,1895, at about half past 8 o’clock in the evening, Lyman H. Knapp, an experienced brakeman, who had been in the employ of the defendant for two weeks, received injuries while attempting to couple freight cars at a street crossing, from which he soon after-wards died. His administratrix brought this action to recover damages for his death, and obtained judgment. Defendant appeals.

One of the errors assigned is that the testimony failed to disclose any liability on the part of the defendant. It is said by counsel for the defendant that from the evidence no one could say what was the cause of the accident. It was the claim of the plaintiff that the foot of the deceased caught between the plank and the rail at the crossing, that the brake beam pushed him back, and that the wheels ran over one foot, and over the other leg between the ankle and the knee. It is the claim of the defendant that the proofs disclose that deceased stumbled against the ends of the four-inch planking at the crossing, was carried forward by the cars for two or three rods, and that at that point the wheels ran over him. Counsel says that at least this is the more probable solution of the way the injuries were received, and that; as it is purely conjecture how the injuries occurred, the circuit judge should have directed a verdict in favor of the defendant; citing Manning v. Railway Co., 105 Mich. 260; Searles v. Railway Co., 101 N. Y. 661; Borden v. Railroad Co., 131 N. Y. 671; Dobbins v. Brown, 119 N. Y. 188; and other cases. An examination of these cases shows that they decide ‘ ‘ that when the damages arose from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail, if his evidence does not show that the damages were produced by the former cause, and he must fail also if it is just as probable that they were caused by one as the other.” This is undoubtedly the rule, and the trial judge so understood it. The jury were instructed that the plaintiff must show by a preponderance of evidence that the injuries were produced by a cause for .which the defendant was responsible,'or there could be no recovery.

There was evidence on the part of the plaintiff tending to show that one of the planks between the rails at the southeast corner had split off near one end, the splinter being from two to four feet long, leaving a space sufficiently wide to let in the foot of a man, and that it had been in that condition some months. The record discloses that when the train was stopped, and Mr. Knapp discovered, he was taken out from under the car, and was questioned as to how the accident occurred. lie said “he got caught in the planking between the plank and the rail; the brake beam pushed him back.” This testimony was admitted without objection. Some of the witnesses discovered blood on the crossing about two feet from the north end of the plank. Blood was found about six inches from the rail, some on the east rail, and at different places further north; also on the crossing, close to the southeast corner, and on the ground, close to the south end of the plank. The space between the rails looked as though a body had been rolled or slid along in places for a distance of about two car lengths north of the crossing to a point where the injured man was found when the train was stopped. The shoes worn by Mr. Knapp were introduced in evidence. The left heel had been run over and smashed, the left foot was crushed, and later was amputated just above the ankle. The right leg was crushed just above the ankle, and was amputated a little higher. In view of this testimony, we do not think the court would have been justified in taking the case from the jury. Crosby v. Railway Co., 58 Mich. 458; Carver v. Plank-Road Co., 61 Mich. 584; Alexander v. City of Big Rapids, 70 Mich. 224; Adams v. Iron Cliffs Co., 78 Mich. 271 (18 Am. St. Rep. 441).

Some exceptions were taken to the charge of the court. It is not necessary to discuss them further than to say that an examination of the charge shows that they are not well taken. The charge was a full, explicit, and careful statement of the law applicable to the case.

The point is made that deceased did not exercise the caution an experienced and prudent brakeman should exercise in making a coupling on a dark night. That was a question for the jury; and there was testimony from Mr. Wilson, a brakeman, a witness for the defendant, who saw as much of the unfortunate occurrence as any one, as follows:

“I saw Mr. Knapp go in front of the car. I suppose he went in to change the link. That was a part of his duty as a brakeman.
“Q. For that reason you took it for granted he went in to perform his duty ?
“A. Yes, sir; went in to change the link.
Q. That was the proper thing to do?
"‘A. That is what I always do.”

The jury decided the question against the defendant, and there was abundance of evidence as to that feature of the case upon which to base their verdict. Staal v. Railroad Co., 57 Mich. 239; Gardner v. Railroad Co., 58 Mich. 592; Adams v. Iron Cliffs Co., 78 Mich. 277 (18 Am. St. Rep. 441); Ashman v. Railroad Co., 90 Mich. 576; Eastman v. Railway Co., 101 Mich. 602.

Counsel says that the court, having charged the jury, instructed them they must stay out until they had agreed to a verdict. If this had been'done by the court just as stated by the counsel in the brief, it doubtless would have been error. One cannot read the record, however, without coming to the conclusion that at a late hour, after the jury had been out for a short time, they were brought in, and told by the judge he understood they had not yet agreed. He was told by a juror they had not been able to agree. The judge then inquired if there was any use of his waiting any longer then for an agreement, and was told by a juror that he thought not. He then instructed the jurors how to bring in a sealed verdict, and that, after they had agreed, they might notify the sheriff, who would discharge them until morning; and cautioned them about disclosing their verdict to any one, and to report in court at 9 o’clock in the morning, to return their verdict. The court then said:

“You may retire again. If you agree before the incoming of the court in the morning, you may seal up your verdict, notify the sheriff, and you will be discharged.
“Juror: If we don’t agree, we stay until we do agree?
“The Court: Certainly; the sheriff will not allow you to go.”

The court and the jurors undoubtedly understood that the jurors were simply to keep together until morning, unless they agreed before, and not that they were to be kept indefinitely' unless they agreed. We do. not think the record discloses any reversible error.

Judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
      In re BLOSS’ ESTATE.
    Wills — Statute of Distributions — Widow’s Election.
    Prior to 1881, if the widow of a deceased testator elected to claim dower under the statute, she lost, usually, all claim to personalty, as well as realty, devised or bequeathed. In 1881 the legislature provided (2 How. Stat. § 5824) that the testamentary disposition of personalty should be subject to the election of the wife to take, in lieu of the interest given to her in the will, the share that would have passed to her under the statute of distributions if the testator had died intestate, until such share should amount to 85,000, etc., and that an election by the wife to take any special devise or bequest made to her in lieu of any particular interest to which she might have been entitled in case of intestacy, or to take the particular interest in lieu of which it was given, should not deprive her of the right to leave the testamentary disposition of the property in all other respects unaffected. Held, that the statute does not empower the widow to make cross elections, accepting the terms of the will as to realty and refusing its terms as to personalty, but merely gives her a distributive share of the personalty where she elects against the will.
    Error to Macomb; Eldredge, J.
    Submitted June 8, 1897.
    Decided September 14, 1897.
    Martha Crawford appealed from an order of the probate court allowing the account of the executor of the last will and testament of Lafurgy Bloss, deceased, and assigning to the widow realty under the will and one-half the residue of the personalty under the statute. The order was affirmed in the circuit court, and appellant brings error.
    Reversed.

      Byron B. JSrskine, for appellant.

      Crocker & Knight, for appellee.
   Long, C. J.

Lafurgy Bloss died July 1, 1894, leaving a widow, daughter, and grandson. By his last will the widow was given a life estate in a five-acre homestead and a life use of one-third of all other realty and personalty. The will was duly probated, and within one year therefrom the widow elected to take her share of the personalty under the statute, waiving the provisions of the will as to that, and by the-same instrument she affirmed the disposition of the realty by the will. On a hearing in the probate, as well as in the circuit court on appeal, she was sustained in her contention that she might make such an election. From this decision the daughter, Martha Crawford, appeals.

Sections 5750, 5751, 2 How. Stat., provide for an election by the widow within one year to take her dower in the lands under the statute, and that, unless such election is made within one year after the death of the husband, she shall be deemed to have elected to take under the will. This statute has been in force for many years in this State. In 1881 the legislature passed an act entitled “An act to restrict the disposition of personal property by last will.’’ Act No. 18, Pub. Acts 1881 (2 How. Stat. § 5824). Section 1 of that act provides:

‘ ‘ First. If the testator shall leave surviving him a wife, the testamentary disposition shall be subject to the election of such wife to take any interest that may be given to her by the testator in his last will and testament, or, in lieu thereof, to take the sum or share that would have passed to her under the statute of distributions had the testator died intestate, until the sum shall amount to $5,000, and of the residue of the estate one-half the sum br share that would have passed to her under the statute of distributions had the testator died intestate; and in case no provision be made for her in said will, she shall be entitled to the election aforesaid.
Second. If, by any will, any special devise or bequest is made to the wife in lieu of any particular thing or any particular interest to which such wife might be entitled in case of intestacy, the election by the wife to take the special devise or bequest, or the other particular thing qr interest in lieu of which it is given, shall not deprive the party electing, or any other person, of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired, and to have the benefit of any other provisions therein the same as he or she would have had if this act had not been passed.”

Mr. Justice Campbell, in Re Smith, 60 Mich. 141, speaking of the amendatory statute of 1881, said:

“By the old law, if a widow elected to claim her dower, she lost, usually, all claim to personalty, as well as realty, devised or bequeathed. She was not entitled to waive any provision of the will, without waiving all, unless the will itself so provided. This statute came in to enlarge her rights, by enabling her to elect as to personalty, as well as realty. But there is nothing in this statute which gives her the right to claim a bequest of personalty, and at the same time claim an interest as by intestacy. If she claims a bequest of personalty, the will stands as to the other bequests. * * * But in the present case the only bequest made to her is the one in lieu of dower; and while she could take or not take that, at her pleasure, she cannot take that bequest, and claim anything else which is not bequeathed. The other testamentary clauses which the statute says shall be left unaffected are the residuary bequests to the children.”

It is apparent that, as the law stood in this State prior to the amendatory act of 1881, if the widow elected to claim her dower, she lost, usually, all claim to personalty, as well as realty, devised or bequeathed. The act of 1881 was passed to remedy this, and provide for an election as to personalty, as well as realty; so that, when a widow should elect to take against the will, she would take her dower and her share of personalty given by the statute. By the ruling of the court below in this case, the widow is permitted to make cross elections; that is, she may approve of the action of the testator in devising her the realty, and at the same time refuse the terms given by the testator as to personalty, — in other words, she is permitted to accept the terms' of the will in one part, because more favorable, and refuse to be bound by the other, because against her interest. We think this statute cannot be so construed. Prior to the act of 1881, the widow was cut off from a distributive share of personalty whenever she declined to take under the will, under subdivision 6, § 5847, 2 How. Stat., where the testator had bequeathed all his personal estate to others. Miller v. Stepper, 32 Mich. 194. Under the act of .1881, the widow may now decline to take under the will, and have the benefit of those provisions of the statute, the same as she may decline to take the realty devised by the will, and take her dower interest under the statute. But she cannot make cross elections. In the construction of wills the duty of the, court is to give full and complete effect to the testator’s intention. It was the intention of the testator to give the widow this five acres of land for life, and a dower interest in all the residue of the realty. He then provided how the personalty should be distributed, and very likely he was influenced to give her less personalty than the statute provided by reason of the devise to her of the realty, which was more than the statute would have allowed her. The statute should not be extended by construction beyond the mischief sought to be remedied in the then existing law, as pointed out in Re Smith, supra. It was said in Herbert v. Wren, 7 Cranch, 378:

“It is a maxim in a court of equity not to permit the same person to hold under and against a will. If, therefore, it be manifest from the face of the will that the testator did not intend the provision it contains for his Avidow to be in addition to her dower, but to be in lieu of it, if his intention, discovered in other parts of the will, must be defeated by the allotment of dower to the widow, she must renounce either her dower or the benefit she claims under the will.”

Lord Selborne, in Codrington v. Lindsay, 8 Ch. App. 587, quoting from Lord Redesdale in Birmingham v. Kirwan, 2 Schoales & L. 444, says:

“The general rule is that a person cannot accept and reject the same instrument; and this is the foundation of the law of election, on which courts of equity particularly ^ have grounded a variety of decisions in cases both of deeds and of wills, though principally in cases of wills.”

We think the court below was in error in its ruling. There is a stipulation in the record that if this court is of the opinion that the widow cannot take under the will as to the realty, and against the will as to personalty, she may be deemed to have taken under the statute as to both. The judgment below must be reversed, and a judgment will be entered here in accordance with such stipulation. The appellant will recover her costs of both courts.

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


text:
    HOLMAN v. UNION STREET RAILWAY COMPANY OF SAGINAW.

      1. Appeal — Ruling Nor Excepted to — Exhibits.
    In an action for personal injuries, plaintiff offered in evidence a waist worn by her at the time of the accident. Defendant objected that it was incompetent and immaterial, but took no exception to the ruling permitting it to be introduced. Held, that defendant was precluded from raising in the Supreme Court the question of the admissibility of the exhibit.
    2. Street Railways — Collision—Injury to Passenger — Contributory Negligence — Evidence.
    In an action against a street-railway company for injuries sustained by reason of the collision of an open car, in the front part of which plaintiff was riding, with a car ahead of it, evidence as to what was done by the passengers at the rear end of the forward car when they saw the danger is admissible, as part of the res gestee, on the question of plaintiff’s contributory negligence in jumping from the car.
    3. Appeal — Review—Failure to State Ground op Objection.
    An objection to testimony cannot be considered on appeal where no ground for the objection and exception taken was stated in the court below. ■

      4. Personal Injuries — Evidence op Physician — Physical Examination — Administration op Opiates.
    Evidence by a physician that chloroform was administered to plaintiff in an action for personal injuries, and that she was examined while under that influence, and as to what he found in reference to her condition at the time, is admissible, although she had been examined without chloroform a day or two before, where the chloroform was administered as part of the treatment, and there is nothing to show that the treatment • was unnecessary, or that it was given for the purpose of a trial of the case.
    5. Same — Damages.
    The physician who treated plaintiff in an action for personal injuries may testify whether or not, in his judgment, plaintiff will continue to suffer pain, and whether she will be able to perform her household duties.
    6. Same — Hypothetical- Questions.
    A hypothetical question assuming that plaintiff in an action for personal injuries was suffering from no displacement of the womb before the injury is not objectionable, on the ground that it is not based on the evidence, where plaintiff has testified that her general health was good before the accident, that she had no soreness or lameness, or injury to the internal organs, and that before that time she did all her household work, and a physician has testified that the patient is usually the first to discover any displacement.
    7. Same — Incompetenoy op Employé — Question por Jury.
    In an action against a street-railway company for injuries sustained in a collision, it appeared that the accident occurred August 17th; that the motorman of the car in which plaintiff was riding knew nothing of the business when he began work, on the 6th day of July previous; that he spent nine days in learning his duties from other employés, and read over once the rules of the company governing the conduct of motormen; that the collision occurred by reason of his driv ing his car into another car, which had stopped at a railroad crossing; that lie made no effort to stop until within a few feet of the car ahead, although the rules forbade motormen to follow a car at a distance of less than 200 feet; that the car and its appliances were in good condition, and that the tyack was dry, so that cars should have stopped without difficulty. Held, that the evidence was sufficient to go to the jury upon the question of the motorman’s incompetency.

      Error to Saginaw; Kendrick, J.
    Submitted June 8, 1897.
    Decided September 14, 1897.
    Case by Alice M. Holman against the Union Street-Railway Company of Saginaw for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William G. Gage, for appellant.

      John F. O’Keefe ( George W. Weadoeh, of counsel), for appellee.
   Long, C. J.

This action was brought to recover damages for injuries received by the plaintiff in a collision between two cars of the defendant on August 17, 1895. Plaintiff had verdict and judgment for $2,800. It appears that she was riding in an open car, sitting in a seat facing the front partition which divides the main body of the car from the platform of the motorman. It was in the evening, and the car in which she was riding was following a car of the same description ahead of it on the same track. As the forward car reached the crossing of the railroad track of the Cincinnati, Saginaw & Mackinaw railroad, it was brought to a standstill by the motorman, as was the universal custom of the company, and its duty under the law. The car in which the plaintiff was riding, under the rules of the company,' should have been 7-J- minutes behind the forward car. The plaintiff claims that the motorman of her car drove that car forward at a great and improper rate of speed, striking the other car as it stood at the railroad crossing; and that, although the car in front was in plain view of him, he did not slacken the speed, or attempt to, until within a few feet of the forward car, so that it was impossible to avoid a collision; that when near the forward car, and seeing that a collision was unavoidable, she slid along to the outer end of the seat, which extended across the car, stood upon her feet, expecting to jump and avoid the collision, when she was thrown by it upon the pavement, and seriously and permanently injured.

The claim set up in the declaration is that the motorman of the car upon which plaintiff was riding was careless and reckless, incompetent, inexperienced, and negligent ; that he did not keep a lookout for cars ahead at the railroad track, and did not prevent the car he was operating from colliding with another of defendant’s cars; and that said car was being operated at a high rate of speed. There is another count in the declaration, charging certain defects in the brake, by reason of which the motorman was unable to stop his car in time. The defense was that the accident was unavoidable, and due to some unknown condition of the track or machinery, and also that the car was not run at an unreasonable or unlawful rate of speed. There are many assignments of error relating to the admission and rejection of evidence, the refusal to give certain requests to charge, and to the charge as given. From an examination of the record we find no exception was taken in many cases to the rejection or admission of testimony, yet counsel has included those questions in his brief, and presents them here for consideration.

It is insisted that the court was. in error in permitting the plaintiff to introduce in evidence a dress waist worn by her on the night of the accident. The plaintiff testified fully as to the condition of the waist before she was thrown from the car; that it had no tears or rents in it, and had just been laundered. It was received in evidence, subject to objection as incompetent and immaterial. We find nothing in the record showing that any exception was taken to this ruling. The waist, being exhibited, showed that it was rent and torn, and the plaintiff testified that its condition was occasioned by her fall upon the pavement. It has been repeatedly held by this court that, where no exception is taken to a ruling of the court below, the party is precluded from raising the question in this court. Fitzpatrick v. Hoffman, 104 Mich. 231; Hogelskamp v. Weeks, 37 Mich. 422; Crippen v. Fletcher, Mich. 386.

The witness Dickinson was in the car ahead of the one in which the plaintiff was riding. There were with him a Miss Tombs, Miss Stevenson, and Mr. Alderton. They were in the rear seat, outside of the partition, and facing the car coming towards them. Mr. Dickinson says he saw the car coming very fast, running at a high rate of speed; that he did not see the motorman do anything to' stop the car until about two car lengths away, when he tried to put on the brakes, but it did not seem to stop the car any, and the collision came very soon; that he saw the plaintiff when she fell. He was then asked, ££ When you saw the car coming, what did you do ? ” This was objected to as immaterial. The witness was permitted to answer, the court stating to counsel that he could take an exception; and the witness testified: £ £ When the car was close to me, I turned around, and threw my feet over the outside railing, to save myself.” He was then asked what was done by other passengers, and stated that the persons who were with him turned around the other way.

It is insisted that the court erred in permitting this testimony to be given. We think the testimony competent and admissible as a part of the res gestee. These four persons were at the rear end of the front car. The plaintiff was at the front end of the rear car, and these persons were in no more danger than the plaintiff. Claim had been made that the plaintiff jumped off instead of being thrown off, and it is evident that they all regarded themselves as in danger by the collision. The defendant, having put them in a position of danger, could not complain if, in the excitement of the moment, they did not do just the proper thing. The testimony bears directly on the question of the plaintiff’s exercise of due care, and for the purpose of showing that she was not guilty of contributory negligence the testimony was competent as a part of the res gestae. In Mitchell v. Railroad Co., 87 Cal. 62, the action was brought to recover damages for personal injuries sustained by the plaintiff while traveling as a passenger on defendant’s road. It was said by the court that the court below erred in sustaining plaintiff’s objections to the questions asked by the defendant as to the conduct of passengers who remained in the car, and whether any of them were injured, and that “evidence of the action of other passengers in such cases is competent as a part of the res gestae, and to show what they, being in the same dangerous situation, deemed prudent conduct. They all had an equal interest in protecting, themselves, and will be presumed to have done what appeared to them to involve the least hazard.” In Twomley v. Railroad Co., 69 N. Y. 161 (25 Am. Rep. 162), it was held that “evidence of the action of other passengers was competent as a part of the res gestae, and also as evidence of what was deemed prudent by those in the same situation, having an interest to take the least and avoid the greater hazard.” In Galena, etc., R. Co. v. Fay, 16 Ill. 568 (63 Am. Dec. 323), it was said:

“The conduct and exclamations of passengers in the cars were not, improperly admitted as tending to show how the circumstances of apparent danger impressed every one, and to some degree explain defendant’s conduct, and vindicate it from rashness and imprudence from undue alarm. * * * Such general conduct, with the exclamations involuntarily thrown out by appearances of imminent peril, may be regarded as a part of the res gestee for this purpose.”

But counsel contends that, while this may be the general rule, yet in the present case it appears that Dickinson and the other parties were in another car, and therefore the testimony was incompetent. But, as we have seen, Dickinson and the others were in the rear end of the first car, and the plaintiff was in the front end of the second car, and each equally in a place of danger, and very near together, as the collision took place. The fact that they were in separate cars under these circumstances does not change the reason of the rule.

Mr. Alderton, a witness for the plaintiff, was asked whether the car was running fast or slow when it was approaching, and he stated that it was running faster than usual. This was objected to, and it is claimed here that the -witness was not shown to have any knowledge whatever of the speed of the car, had had no experience, and was not a railroad man. While this was objected to, there is no ground of the objection and exception stated. Therefore it can have no consideration here.

Dr. Rowe was called by the plaintiff, and testified that chloroform was administered to the plaintiff, and that she was examined while under that influence, and as to-what he found in reference to the condition of the patient at that time. The defendant’s claim is that an examination of her injuries had been made by the doctor only a day or two before this without administering chloroform, and that this testimony about giving it had a tendency to make the plaintiff’s case appear more serious than it really was, and that this was prejudicial to the defendant. The chloroform was administered as a part of the treatment, and while the patient was under its influence the muscles-of the shoulder and hip were given motion with the purpose of breaking up the adhesions. We think the testimony was not objectionable, and was introduced for the purpose of showing the then physical condition of the plaintiff. There is nothing in the testimony in any sense tending to show that this treatment was unnecessary, or that it was had for the purpose of a trial of the case.

The doctor was asked, while upon the stand, whether or not, in his judgment, the plaintiff would continue to suffer pain, and whether she would be able to do her household duties. We think there was no error in this.

The doctor was also asked:

‘ ‘ Assuming that this patient you examined, on the 17th of August, 1895, was in good health, suffering from no displacements, or injury to her limb or arm or shoulder, and on that day was thrown from a street car to the ground by means of two cars colliding, then what would you attribute the displacement to and the injury you found upon her person ?
“Counsel: I object to the question that it is not based upon the evidence.
The Court: You think it does not embrace enough of the facts and circumstances ?
Counsel: It is not based upon the evidence in this case. There is no evidence here that' there were no displacements prior to this time.”

The doctor testified that he should attribute her condition to that accident.

We think counsel is mistaken in saying that there was no evidence that there were no displacements prior to that time. The plaintiff herself had testified that her general health was good prior to the accident; that she had no soreness or lameness, or injury to the internal organs; that prior to that time she did all her household work, washing, and ironing. On her cross-examination by counsel for defendant, she was asked:

“Q. You don’t know there were displacements there, do you, except what the doctors told you?
“A. If you had my feelings, I guess you would know it, and was a woman.
‘ ‘ Q. Answer the question.
“A. Yes, I did.
“Q. You know of the displacement by the feeling and sensation that you have ?
“A. Yes, sir.
“Q. Never had had it before?
‘A. I never had.
“Q. But you could tell by the feeling that it was displacement ?
“A. I could.”

Dr. Freeman testified in relation to this matter:

‘ ‘ Q. Who is the first to discover tumors, abscesses, and displacements of the uterus ?
“A. Usually the patient has some symptoms of distress or irritation that cause her to seek medical assistance and relief.
“Q. They all cause pain, do they not?
“A. That is the way they are usually discovered. Usually the symptoms that come from the presence of them warn the patient to seek relief.”

The testimony was competent under the rule in Lacas v. Railway Co., 92 Mich. 417. In the present case, as in that, the doctor had testified that the plaintiff was suffering from a displacement of the womb.

It is contended that the court was in error in refusing to give defendant’s sixth request to charge, as follows:

“One ground of negligence which the plaintiff alleges in her declaration is that the defendant did not have in charge of the car a motorman who was competent, but employed one who was incompetent and inexperienced. There is no evidence in this case that the motorman in charge of this car was incompetent and inexperienced, so as to charge the defendant with any negligence on account thereof; nor is there any evidence of the reckless management of the car by the motorman.”

The court charged the jury upon that subject as follows:

“It is charged by the plaintiff in this case that the defendant company was guilty of negligence in employing an inexperienced and incompetent motorneer. You have heard the testimony here concerning what is required of a motorneer, what length of time is necessary to educate him to properly perform his duties, and you have heard what this motorneer’s conduct was, and I leave it for you as a question of fact. If you find under the testimony that this motorneer was an inexperienced and incompetent motorman, that may be considered by you as evidence in determining whether the company was negligent ; that is, if from this inexperience and incompetency the accident occurred, then the company would be guilty of negligence in this case.”

The accident occurred on August 17, 1895. Philip Deibel was the motorman in charge of the car. On his cross-examination he testified as follows:

“Q. Before you went to work on the 6th of July, 1895, you knew nothing of the duties of a motorneer ?
“A. No, sir.
“Q. You never handled electricity ?
“A. No, sir.
“Q. Never ran a street car?
“A. No, sir.
“Q. Before you went on the street railway, what was your business ?
“A. Last business I was paving inspector.
“Q. Before paving inspector ?
“A. I was in the shoe business, and in the liquor business about 10 years ago. Afterwards was paving inspector, and finally got on the street railway. * * *
“Q. You have the rules of the company, have you, and did you at that time ?
“A. I had read them over.
“Q. How often had you read them over before the 17th of August?
“A. Oh, probably once; that is all.
“Q. That is a book of 38 pages, and you read that once or so before you went on to do the work of a motorneer. Is that right ?
“A. Yes.
“Q. And that is all?
“A. That is all.
‘ ‘ Q. And you know this book contains rules that govern your conduct as motorneer ?
“A. Yes, sir.
‘ ‘ Q. And before that you had no knowledge of it at all ?
“A. No, sir. * * *
“Q. So you learned how from the way these men showed you ?
“A. Yes, I got familiar with the route.
“Q. How long did you spend learning after the 6th day of July?
“A. Nine days. * * *
“Q. Did you, on August 17th, know what rule 92 was?
“A. Yes.
“Q. And you knew the rule prohibited one car from following another car within-200 feet?
“A. Yes, sir.
“Q. Did you know it on the 17th of August last?
“A. Well, I couldn’t say whether I knew it or not.”

The witness further testified that he knew it was a part of his duty to get to a certain place on time, and to see that he did not get ahead of time. The motorman on the ■car ahead testified that Mr. Deibel was a new man on the road, not having regular employment, and was what is known as a special; that he had no regular run; that on that night the track was dry, and in good condition; that he found no difficulty in stopping his own car in the usual way. Mr. Hart, the general manager of the company, testified as to the training and instruction of the motormen; that they were called in and examined as to their abilities and understanding of machinery, and then taken into the shops, and instructed by the electric adjuster, then put on the road with a motorman until pronounced competent to run a car; that some men pick it up very quickly, and in three or four days will be safe, but that the company does not permit them to have charge of a car for 10 days or two weeks; that this man had no regular run at the time of the collision, but was what was called a special, and had no regular run from the time he went on, July 6th, to the time of the collision; that the company gave him work whenever it had any.

We are unable to say from this testimony that the court was in error in leaving the question to the jury to determine whether or not this motorman was inexperienced and incompetent. In addition to the testimony in reference to his incompetency, the very circumstances under which he permitted his car to collide with the other should also have had great weight in the case. The car and its appliances were in good condition, the track was in good condition, and under the rules of the company the motorman was bound to keep the car separated from the other by 200 feet; yet it is shown that he made no effort to stop his car until within a few feet of the car ahead. This may have been due to his want of experience, rather than to his carelessness; at least, it was a question for the jury.

It is also contended that there was no evidence that the car was run at a high rate of speed, and the court was asked to so direct the jury. The court charged:

“You have heard the testimony concerning the speed of this car, and the speed all the cars are usually run under; and you will be judges of the fact whether this car ran at an unusual rate of speed or not. If this car ran only at such a rate of speed as electric roads are, after experience in running cars, in the habit of running them, and was running it in the way prudent railway companies, in the management of their business, run cars of this character, — . if they run them-at such a rate of speed as you find this car was run, — then it would not be a dangerous rate of speed.”

We think there was testimony to support this charge, and that the court was not in error in refusing the request.

The court was asked to charge the jury further, as follows:

“If it appears that the plaintiff, by exercising that care which persons of ordinary prudence usually observe, might have avoided the injury complained of, she cannot recover, and your verdict should be ‘ No cause of action.’ ”

We think this was substantially given by the general charge.

Some other requests were tendered and refused, which we do not deem it important to discuss. All the assignments of error have had consideration, and we find no error in the record.

The judgment is affirmed.

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


text:
    FIELD v. LOVERIDGE.
    1. Decree — Annual Charge on Lands —Action to Recover Unpaid Installments — Limitations.
    By a judicial decree, lands were charged with the payment of §200 a year during the life of the original grantor. The grantor died March 4, 1891. Letters of administration were granted August 11, 1893, and a bill to enforce the lien was filed by the administrator November 20, 1894, the installments being in default since 1872. 2 How. Stat. § 8722, suspends limitations, as against an administrator, until two years after the granting of letters, and section 8736 limits to 10 years the right to recover on a decree. Held, that complainant could recover the installments falling due within 10 years prior to the date of the grantor’s death, but no others.
    2. Same — Modification on Appeal — Costs.
    Where a decree for complainant is modified upon appeal so as to reduce by a large sum the amount recovered, defendant is entitled to costs of the appellate court.
    Appeal from Branch; Yaple, J.
    Submitted January 6, 1897.
    Decided September 14, 1897.
    Bill by Sidney Field, administrator with the will annexed of the estate of Serephina A. Tucker, deceased, and Hiram A. - Tucker, sole legatee under said will, against Henry C. Loveridge and Mary Ellen Allen, to enforce a lien upon land. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      John B. Shipman, for complainants.

      JB. I-I. Barlow, for defendants.
   Long, C. J.

Prior to October 21, 1862, Augustus P. Tucker was the owner of 160 acres of land, which was occupied and used by him as a farm. On that day he and his wife, Serephina A. Tucker, deeded such lands to their son Hiram, one of the complainants in this suit, and at the same time took back from Hiram a bond in the following form:

“The condition of this obligation is such that, if the said Hiram A. Tucker, his executors or administrators, does allow, permit, and protect the said Augustus P. Tucker and Serephina A. Tucker in the free, exclusive, undisturbed, quiet, and peaceable possession of the house on the premises this day sold and deeded to said Hiram A. Tucker, in the township of Coldwater, and now occupied by said Augustus P. Tucker and Serephina A. Tucker, for and during their and each of their natural lives; and if the said Hiram A. Tucker, his executors and administrators, shall at all times during the natural lives of the said Augustus P. Tucker and Serephina A. Tucker suitably support and maintain the said Augustus P. Tucker and Serephina A. Tucker, and provide them with suitable food, drink, clothes, nursing, medicine, firewood, and all other things suitable and necessary for their maintenance and support in the house above designated, and, in case such house should be destroyed, then in some other suitable house to be provided by said Hiram A. Tucker, his executors and administrators; and in case the said Augustus P. Tucker and Serephina A. Tucker, or either of them, become dissatisfied with the manner or way in which said Hiram A. Tucker supports and provides for them, or if they shall so desire, it shall be optional with them to receive, in lieu and instead of the food, drink, clothes, nursing, medicines, firewood, and other things above mentioned, the sum of $500 a year during the time above specified, viz., their natural lives, to be paid in quarter-yearly installments at the end of each quarter of a year. The said Hiram A. Tucker is to furnish and provide the said A. P. and S. A. Tucker with a horse and buggy whenever they, or either of them, shall desire and call upon the said Hiram A. Tucker for one for their own use. And if the said Hiram A. Tucker, his executors and administrators, shall also pay, or cause to be paid, to one Curtis M. Tucker, the son of said A. P. and S. A. Tucker, the sum of $1,500 in three yearly installments after the-death of both of the said Augustus P. Tucker and Serephina A. Tucker, — then this obligation to be void.”

This bond was secured by a mortgage upon the premises, which bears the same date, the consideration therein being $5,000, conditioned:

“That if the said party of the first part pay to said parties of the second part the sum of $5,000 according to the terms and conditions of a certain bond, * * * then these presents and said bond shall cease and be null and void.”

Hiram A. Tucker went into possession of the premises, and undertook to carry out the conditions of the bond until the year 1866, at which time some trouble arose between him and his parents, and on October 5, 1866, he conveyed the premises to Isaac P. Alger by deed of warranty for the consideration of $8,000. The complainants contend that, at the time this conveyance was made, nothing in fact was paid by Alger, but that he promised to perform and do all things for Augustus P. Tucker and his wife which Hiram had agreed to do under the bond which he had given to them.

Defendants claim that, when the property was deeded to Alger, it was the agreement that Hiram A. Tucker should take care of this bond and mortgage, and that $8,000 was to be paid by Alger in yearly installments of $500 each, said payments to commence when the claims of Augustus P. Tucker and wife under the bond were satisfied. Defendants further contend that, at the time the deed was made, a note for $8,000 was given by Alger to Hiram A. Tucker, but that an arrangement was made the next year between Alger and said Tucker by which Tucker surrendered the $8,000 note upon the payment to him of $100 by Alger. A receipt is contained in the record, signed by Hiram A. Tucker, reciting the payment of $100 in full of all demands up to its date. This, then, left the title of the farm in Alger, subject to the mortgage of $5,000, conditioned that the bond should in all things be performed as therein agreed. It appears, however, that, soon after the deed was made to him, suit was commenced by Augustus P. Tucker and wife against Hiram A. Tucker and Isaac P. Alger in the Branch circuit court, in chancery, to foreclose the mortgage on the farm, in which it was claimed that an election had been made under the conditions of the bond; and on April 4, 1869, a decree was entered in the case, finding that Augustus P. Tucker and wife had elected under the bond to take the $500 per year instead of the support provided in the bond, and that the defendant Hiram A. Tucker had supported Serephina A. Tucker in the past, and that there should “be deducted from the amount due complainants on said bond and mortgage the sum of $200 per annum for the term of two years and three months last past, and that in the future the said defendants be allowed the sum of $200 per annum, or at that rate for such time, so long as they may hereafter furnish such separate support and maintenance to said Serephina A. Tucker, and which she may voluntarily accept of her own free will, to be deducted from any sum or sums of money which may hereafter grow due on said bond and mortgage.” It was further decreed as follows:

“The defendants are entitled thereto and are hereby allowed as set-offs for certain judgments and debts against the complainant Augustus P. Tucker proved to have been paid or purchased by said Hiram A. Tucker. After deducting each set-off, and allowance for the separate support and maintenance of the said Serephina A. Tucker, up to and including the 6th day of April, 1869, there is due to the complainant Augustus P. Tucker on said bond and mortgage the sum of $756.50.”

It was decreed that this amount should be paid, together with the costs of the proceedings, and that in default of such payment the premises might be sold. The decree further provided that complainant Augustus P. Tucker—

“Be at liberty hereafter, as conditions are broken and installments become due, if no sale be had under this decree (or a sale of only a part of the premises made) in consequence of said mortgagor paying the amount so as aforesaid ascertained to be due, with interest and costs as aforesaid, from time to time, to go before one of the commissioners of this court for Branch county on the footing •of this decree, and obtain a report of the amount which the defendants shall then be liable to pay the complainant on said bond and mortgage, to the end that upon the coming in and confirmation of such report the complainant may apply to this court for an order for the sale of the said premises, or a part thereof, to satisfy the amount which may then be due, with interest, and costs consequent upon such report and sale,” etc.

It appears that all the sums due under the bond and mortgage and decree to Augustus P. Tucker have been fully paid by Alger and his grantees up to the time of the death of Augustus P. Tucker, which occurred on April 12, 1887. Alger also claims to have paid to Hiram A. Tucker divers sums of money, amounting to the sum of $1,000.

In the year 1869, Hiram A. Tucker went to the State of Oregon to live, taking with him his mother. She continued to live with him up to the time of her death, on the 4th day of March, 1891. After their going to Oregon, and in the year 1872, it is claimed that Alger sent them one installment of $200 to apply upon the bond and mortgage. No demand was made upon Alger or his grantees from that time until the year 1889, Serephina A. Tucker living with and being supported by her son Hiram. At her death she left a will giving to him all her property ¿ and Sidney Field, the other complainant, is the administrator of her estate, with the will annexed. Soon after the deed from Hiram A. Tucker to Isaac P. Alger, in 1866, Alger contracted to sell the south 80 acres to Harry Bald-ridge for $4,000. On April 26, 1869, a deed was made to Baldridge to carry out the terms of that contract, and Baldridge gave back to Alger, on the same date, a mortgage for $3,000, which was subject to certain conditions, among which was that this mortgage was not to be paid until Tucker and his wife had signed off their interests under their mortgage, or were dead. Baldridge died in 1879, and Mary Ellen Allen, the defendant, one of his heirs, acquired all the interest which he had, and she is now the owner of it. On March 12, 1870, Alger, for the consideration of $5,000, conveyed the north 80 acres to Washington Dunton, in which deed the house reserved in the decree in the foreclosure suit between Augustus P. Tucker, and Hiram A. Tucker and Alger is reserved to Augustus P. Tucker; and, on the same day this deed was given, Dunton gave back to Alger a mortgage of $4,000, payable in four annual payments, but providing, if the interest was paid when due on said mortgage, no part of the principal was to be paid so long as Augustus P. Tucker occupied the house on said premises reserved to him, and no interest was to be paid until the claim of said. Tucker had been fully paid for the time interest was due. In January, 1885, defendant Loveridge purchased the mortgage given by Harry Baldridge, as well as the one given by Dunton, and paid therefor the sum of $3,500. The Dunton mortgage on the north 80 acres was foreclosed, and the premises purchased by Loveridge on such foreclosure sale, October 26, 1891. Loveridge also acquired title through mesne conveyances from Dunton, and now claims .to be the owner of said north 80 acres. He also still owns the Baldridge mortgage upon the south 80 acres, upon which there remains unpaid $2,000. .

The claim of complainants is that under the $5,000 mortgage, and the decree in the Branch circuit court in chancery, Serephina A. Tucker was entitled to $200 a year in money, which was a charge upon the land, and that by an oral agreement made between her and her son in 1887, while they were residing in Oregon, the claim was assigned to Hiram A. Tucker, and that by her will she conveyed to him all her estate, and that thereafter Hiram had a right to be subrogated to all the rights of his mother under this mortgage and decree, to collect and receive all moneys which were due and payable to her thereunder.

Defendants’ contentions are:

1. That the bond and mortgage have been fully paid; that defendants show by the record that $9,000 and upwards has been paid by Alger upon said bond and mortgage; that the mortgage was given to secure the penal bond of $5,000, and that no secret agreement made between Hiram A. Tucker and Isaac P. Alger could in any way affect subsequent purchasers.

2. That the right to recover is barred by the statute of limitations.

3. That Hiram A. Tucker never became subrogated to any rights which Serephina A. Tucker had in the premises, and that defendants are good-faith purchasers, without notice of the claim now set up by Hiram A. Tucker.

In the proceedings which were had upon the foreclosure of the mortgage, the parties interested — that is, Hiram A. Tucker and Isaac P. Alger — had their day in court, and the decree fixed the status of the parties, and, not having been appealed from, the lands were held as security for the payment of the money to Mrs. Tucker; and whatever interest she had passed to her son Hiram, at least under the will, if he were not subrogated to all her interest therein by the oral agreement. Whatever may have been paid to Augustus P. Tucker could in no wise affect the rights of Mrs. Tucker in the decree.- Their interests were divided by the terms of the decree. T wo hundred dollars annually was to be paid to her. She was paid that amount up to the year 1872. At the entry of the decree, April 4, 1869, as stated therein, she had received $200 per year for two years and three months. If the parties were bound to the payment of the penalty of the bond of $5,000 only, the rights of the complainants are very different than they would be if the decree is to be construed as a continuing one during the lifetime of Mrs. Tucker. The decree recites that—

“ In the future the said defendants [Hiram A. Tucker and Isaac P. Alger] be allowed the sum of $200 per annum, or at that rate for such time, so long as they may hereafter furnish such separate support and maintenance to said Serephina A. Tucker, and which she may voluntarily accept of her own free will, to be deducted from any sum or sums of money which may hereafter grow due on said bond and mortgage.”

It was the evident intent of the court in framing the decree to give to the husband $300 per year for his support, and to his wife $200. But the decree fixes the time during which payments must be made. It is therein provided that it is to be paid during the terms of their natural lives. It appears, therefore, that the lands, at the time the title was in Isaac P. Alger, were subject to this lien in favor of Mrs. Tucker. This bill is filed to enforce the lien. The court below granted a decree in accordance with these views, but held that the computation should be made from 1872, the date of the last payment to Mrs. Tucker, up to the time of her death. In this the court was in error. The decree was payable in installments. Mrs. Tucker died March 4, 1891. The statute of limitations would be suspended at her death. 2 How. Stat. § 8722. The statute would not commence to run again until two years after letters of administration were granted. The letters were granted August 11,1893, and the present bill was filed November 20, 1894. The statute has not run since the death of Mrs. Tucker, so that under section 8736, 2 How. Stat., the complainants would have the right to recover for all installments falling due within 10 years prior to Mrs. Tucker’s death. Snyder v. Hitchcock, 94 Mich. 313; Ludeman v. Hirth, 96 Mich. 17 (35 Am. St. Rep. 588).

The decree below will be affirmed, with this modification. This would make a large deduction from the amount found due by the court below. The defendants will therefore recover the costs of this court.

The other Justices concurred.