text:
    PEOPLE, ex rel. ANDERSON, v. RINEHART.
    1. Elections — Inspector’s Duty — Statutes.
    Failure of an election inspector to write his initials on the lower left-hand corner of the ballot, under Act No. 55, Pub. Acts 1905, violates a mandatory duty which is not performed by initialing the ballots on the perforated corners that are torn off, and requires the rejection of the defective ballots.
    2. Constitutional Law — Elections—Public Officers.
    Act No. 55, Pub. Acts 1905, making provision for initialing ballots and rejecting those improperly marked, is constitutional.
    Error to Cass; Coolidge, J., presiding.
    Submitted April 14, 1910.
    (Docket No. 111.)
    Decided June 6, 1910.

      Quo warranto proceedings by the people of the State of Michigan, on the relation of Robert J. Anderson, against Carleton W. Rinehart to try the title to the office of county clerk. A judgment for respondent is reviewed by relator on writ of error.
    Reversed, and judgment of ouster entered.

      Thomas J. Bresnahan and Coy W. Hendryx (C. S. Beilley, of counsel), for appellant.

      Smith & Lyle, for appellee.
   Hooker, J.

The prosecuting attorney for the county of Cass filed an information on behalf of Anderson against Rinehart to try the title of these persons to the office of county clerk in said county; Rinehart being in possession under a certificate of election.

The case must turn upon the disposition to be made of the ballots cast in the township of Calvin, all of which should be excluded or all counted. If excluded, relator will have a majority of 88 in the county. If counted, respondent was elected by 187 votes. The alleged defect in the ballots is that the initials of the inspector were placed on the perforated corners of the ballots, and were all torn off by the inspector after he received them from the electors and before depositing them in the box. The statute involved in this case is section 22, Act No. 55„ Pub. Acts 1905:

“ Sec. 22. At the opening of the polls, after the organization of, and in the presence of the board of inspectors,, one of the inspectors shall open the packages of ballots in. such a manner as to preserve the seal intact. He shall then deliver to one of the inspectors, to be designated by the board, fifty of the ballots, and shall place the pencils for marking the ballots in the booths. The inspector so designated shall at once proceed to write his initials in ink on the lower left-hand corner of the back of each of said ballots, but not upon the perforated corner, in his ordinary handwriting, and without any distinguishing mark of any kind. As each successive voter calls for a ballot, another one of the inspectors shall deliver to him the first signed of the fifty ballots, and as the supply of ballots in the hands of the inspectors shall decrease, additional ballots shall be signed by the same inspector, so that at least twenty-five ballots so signed shall be at all times in the hands of the inspector delivering the ballots to the elector.”

It is contended on behalf of the respondent that the provision regarding initials should be held to be directory, rather than mandatory, and that a failure to strictly comply with it would not require the exclusion of the informal ballots, and we are cited to the case of Horning v. Board of Canvassers of Saginaw Co., 119 Mich. 51 (77 N. W. 446), in support of the claim. Under the law in force at that time, the poll clerks were required to write their initials in ink on the upper left-hand corner of the back of each of the ballots, etc. Another section required that “ any ballot which is not indorsed with the initials of the poll clerks as provided in this act shall be void and shall not be counted.” We held in that case that the ballots voted (all being indorsed in a different corner) should be counted. This case was decided in December, 1898, under the act of 1891 (Act No. 190, Pub. Acts 1891,1 Comp. Laws, § 3612, et seq.). Several other provisions of that act have been held mandatory and informal ballots rejected. Thus in Attorney General v. McQuade, 94 Mich. 439 (53 N. W. 944), the noncompliance with the requirement that the voter must go alone into the booth and there prepare his ballot concealed from the view of all persons, and fold it so that the face should be concealed, and the initials exposed to view and non-compliance with the provisions relating to assistance to illiterate persons in marking their ballots, made the exclusion of ballots necessary.

In Attorney General v. May, 99 Mich. 539 (58 N. W. 483, 25 L. R. A. 325), we held the same where assistance was rendered to a voter, who had not previously taken the statutory oath. In Attorney General v. Stillson, 108 Mich. 419 (66 N. W. 388), we held that the vote of an entire township must be excluded for the reason that an interpreter duly sworn was allowed to remain within the railing at a voting precinct, and to mingle and talk freely with voters after receiving and before marking their ballots, such voters not having requested the assist-' anee of an interpreter. Again, in Attorney General v. Kirby, 120 Mich. 592 (79 N. W. 1009), the vote of a township was excluded because an unofficial person was appointed “instructor,” to distribute ballots, who was allowed access to voters even after they had entered the booth, and this was held notwithstanding the fact that the parties all acted in good faith and the absence of proof that any one was unduly influenced. See, also, De Gaw v. Fitzsimmons, 124 Mich. 511 (83 N. W. 282). Subsequently, and in 1905, and presumably with the full knowledge of the Horning Case, the legislature amended the act by expressly prohibiting the use of the perforated corner for initials. In view of these cases, and the subsequent legislation, we must hold the provision mandatory, and the vote void.

It is urged that voters should not be disfranchised by the carelessness or fraud of inspectors, and we are cited to many cases where courts have refused to exclude votes for election irregularities. Courts are always reluctant to deprive electors of their votes, or to do violence to the expressed will of the public, but these regulations are made in furtherance of a design to protect electors in the exercise of their electoral privileges. In the Case of McQuade, supra, it was said by Mr. Justice Grant :

“ These provisions of the law must be held mandatory, or else the purpose of the law is defeated, and the opportunities for fraud are increased rather than diminished. If an inspector or other person be permitted to enter the booths with the voters, the danger is far greater than under the old system, where there was some opportunity to see and detect fraud. Under this practice, venal voting could be readily accomplished. The law is designed to secure absolute secrecy to the elector, and thus prevent all opportunity for corrupt practices. The law does not permit parties to profit by such frauds, though they may not have participated in the fraud. The rule laid down by the text writers is as follows:
“ ‘ When fraud on the part of the officers of election is established, the poll will not be rejeoted, unless it shall prove to be impossible to purge it of the fraud. When the result of a poll, as shown by the returns, is false and fraudulent, and it is impossible to ascertain the actual vote from the other evidence in the case, the vote of such poll must be wholly rejected.’ Paine on Elections, § 499; McCrary on Elections, §§ 190,192.
“This rule is founded in good sense, and is sustained by the authorities.”

We said in the Case ofStillson, supra:

“We have frequently held that electors are not to be deprived of the result of their votes by the mere mistakes of election officers, when such mistakes do not indicate that the result has been changed thereby, and many things may occur that can be treated as irregularities. See People v. Avery, 102 Mich. 572 (61 N. W. 4), and authorities cited. On the other hand, where fraud appears upon the part of the inspectors, the voter must sometimes be deprived of his vote. Attorney General v. McQuade, 94 Mich. 489 (53 N. W. 944). And this must always he the case where mandatory provisions are disregarded, if the result would he thereby changed.”

Continuing upon the subject of the constitutionality of the law which is attacked in this case as it was there, we said much in the last-mentioned case that can as well be read there as to repeat it here. We held these laws within the powers expressly conferred by the Constitution, although they might require some sacrifice by the individual for the public good. The statute expressly provides that such ballots as these shall be neither placed in the box nor counted, and we have no alternative but to apply the law.

The judgment of the circuit court is reversed, and a judgment of ouster entered against the respondent, and in favor of the relator.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    FULLER v. BILZ.
    1. Waters and Watercourses — Riparian Rights.
    The purchaser of a lot having a dedicated street between it and a lake front, along which the submerged lots are also platted, leaving a strip of land between the roadway and the water, acquires no riparian rights.
    2. Frauds — Actions—Assignability.
    A right of action for fraudulent representations concerning , land is not assignable, nor has a subsequent purchaser of the property a right of action therefor against the wrongdoer.

      3. Waters and Watercourses — Lakes—Plats.
    Since the owner of the shore of a lake owns to the center, he may plat and use his submerged land to such an extent as will not interfere with rights which are common to all.
    4. Equity — Relief—Appeal and Error.
    In a suit to quiet title to land which was admitted to belong to the complainant, whose original deed had been lost, and to other land which the defendant owned, a decree is entered, on appeal, as to the land owned by complainant, for the purpose of disposing of the entire controversy.
    Appeal from Ottawa; Padgham, J.
    Submitted April 14, 1910.
    (Docket No. 107.)
    Decided June 6, 1910.
    Bill by Frederick W. Fuller against Aloys Bilz and Frederick J. Bertschy for an injunction and to quiet title to certain land. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant quieting title to a portion of the land.

      Walter I. Lillie, for complainant.

      Farr & Farr, for defendants.
    About the year 1897, defendants caused to be platted a portion of section 16, township 8 N., range 16 W., Ottawa county. The land platted included a part of the southerly and easterly shores of Spring Lake. This plat was not recorded until January 9, 1901. It shows that a driveway or street called “ Beach Drive ” was laid out, 50 feet wide, along the edge of the lake, and within a very few feet of its margin, with a tier of lots on the south side of said driveway facing north, and another tier of lots on the north side of the driveway running out into the lake. The lots on the south side of the road were 50 by 150, those on the north side 50 by 170. The latter are for the most part under water, and when the water is at high stage some of them are wholly submerged to the north line of Beach Drive. Lot 28 lies south of the drive, and lot 54 north of the drive and immediately in front of 28. In the year 1897, one Tillotson purchased from defendants lot 28, and received a deed therefor. He was asked by defendants not to record said deed until the plat was placed of record, and, complying with said request, his deed never was recorded, and cannot now be found. On February 19, 1901, Tillotson sold said lot 28 to David Dunlop and Frederick W. Fuller. Complainant bought Dunlop’s interest in said lot on April 28, 1904. After the purchase of said lot by Tillotson, he erected, and from time to time occupied, a cottage thereon, and erected and used a small dock on lot 54. Such a dock has been erected from year to year by complainant, and used by him without protest from defendants. In the spring of 1908, defendants started to build a considerable dock on a portion of lot 54, with the intention of placing several boathouses thereon, for the use of lot owners in said plat whose property was farther from the water. The bill of complaint was filed for the purpose of enjoining the building of said dock and boathouses, and to quiet title in complainant to lots 28 and 54, upon the ground that defendants had represented to Tillotson that lot 28 fronted on the lake, and that its owner would always have an unobstructed view of the lake, and a 50-foot frontage thereon. From a decree dismissing the bill, complainant appeals.
   Brooke, J.

(after stating the facts). It is not claimed by complainant that the defendants or either of them ever made any representations to him or to Dunlop that lot 28 carried with it the title to lot 54. At the time of complainant’s purchase from Tillotson, the plat was of record, clearly showing that lot 28 did not reach at its northern extremity to the margin of the lake. According to the plat, not only the road, but a strip of ground several feet wide north of the road, lies between the northerly boundary of the land he purchased and the water. The description in his deed is “Lot 28,” and a glance at the plat, of which he had constructive notice, would have shown complainant the relation of lot 28 to the shore of the lake, as above pointed out. We are of opinion that, by virtue of his deed, he acquired no riparian rights, and no title to lot 54. If Tillotson fraudulently misrepresented the extent or location of lot 28 to complainant, and complainant, in purchasing, relied upon such representations, his action is against Tillotson, and not against these defendants. If the defendants fraudulently misrepresented the facts to Tillotson, he (Tillotson) might have proceeded against them for their fraud, but his right of action is not assignable, and did not pass to complainant by virtue of the deed from Tillotson to him. Dickinson v. Seaver, 44 Mich. 624 (7 N. W. 182); Stebbins v. Dean, 82 Mich. 385 (46 N. W. 778); Chase v. Boughton, 93 Mich. 285 (54 N. W. 44).

As owner of lot 28, fronting on Beach Drive, complainant might claim the fee to the south half of the roadway, subject to such rights as the public has obtained by dedication or user, as to the character of which the record is silent. But even extending his ownership 25 feet to the north, his land would still not reach the margin of the lake by several feet, and he could not claim riparian rights thereon. The owner of the shore owns to the center of the stream or lake, and there is no apparent reason why such owner may not plat, and use his submerged land as well as that lying above water, so long as in so doing he does not interfere with such Use of the waters of the lake as is common to all. Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 227 (60 N. W. 681, 25 L. R. A. 815, 47 Am. St. Rep. 516), and cases there cited.

It is urged by appellant that, in any event, the court below should have entered a decree quieting the title to lot 28 in him. Although the original deed from defendants to Tillotson to lot 28 is now lost, the answer admits complainant’s ownership of that lot. It is apparent he could at any time have secured a deed thereof from defendants. The controversy was not as to the ownership of lot 28, but as to the ownership of lot 54.

In order, however, that a final disposition of the matter be now made, a decree will be entered in this court quieting the title to lot 28 in complainant, but with costs of this appeal to defendants.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    SPRAY v. AYOTTE.
    1. New Trial-Weight of Evidence — Province of Jury.
    The credibility of witnesses being for the jury, a new trial will not be granted on error because the verdict is against the weight of evidence when a single witness, who was contradicted, gave the testimony connecting defendant with the alleged wrongful sale of intoxicating liquors to plaintiff’s deceased father.
    2. Same — Newly Discovered Evidence — Impeachment.
    Ordinarily a new trial will not be granted because of newly discovered evidence to impeach a witness.
    3. Same.
    A new trial is properly refused upon a showing of newly discovered evidence which might, in the exercise of due diligence, have been produced at the trial.
    4. Damages — Intoxicating Liquors — Mortification and Mental Suffering.
    Damages for shame, disgrace, and mortification, which there is no evidence to sustain, are not recoverable in a civil-damage action brought by an infant of seven years of age for the death of his father.
    5. Trial — Appeal and Error — Requests to Charge.
    Defendant is not entitled to a reversal for failure of the trial court to give more explicit instructions which were not requested.

      Error to Cheboygan; Shepherd, J.
    Submitted April 14, 1910.
    (Docket No. 119.)
    Decided June 6, 1910.
    Case by George F. Spray, by next friend, against Mary Ayotte, Thomas H. Stevenson, Frank V. Lalonde, Anthony Mushilock, John Karwick, and Joseph Pellenz under the civil-damage act, for the unlawful sale of intoxicating liquors to Benjamin Spray, plaintiff’s father. A judgment for plaintiff is reviewed by defendant Mushilock on writ of error.
    Reversed.

      David H. Crowley and L. G. Da Foe, for appellants.

      Beilley & McPhee, for appellee.
   Brooke, J.

This is an action under the statute against two saloon keepers, Ayotte and Mushilock, and their respective bondsmen, brought by the infant son of one who met with his death while intoxicated. Plaintiff had judgment. Defendant Mushilock and his bondsmen bring the case here by writ of error. A motion for a new trial was made upon the claim that the verdict was against the weight of the evidence, and that defendants had discovered new evidence. The motion was denied, and error assigned thereon.

It is apparent from the record that the guilt of defendant Mushilock rested solely upon the testimony of one Koviak, who was flatly contradicted by Thomas Haedys, who, on the night in question, was employed as bartender for defendant Mushilock. While it is clear that Koviak is a man of indifferent morals, it is nevertheless true that upon three distinct occasions he testified positively to the fact that liquor was sold by appellant to Spray on the night in question. He has no apparent interest in the subject-matter of the suit, while Haedys, who contradicts his testimony, may be supposed to be interested in behalf of his employer, Mushilock. We have frequently held that the credibility of witnesses is a matter peculiarly within the province of the jury. They seem to have believed Koviak rather than Haedys. The circuit judge, who heard the testimony of both, and saw them upon the stand, declined to set aside the verdict as being against the weight of the evidence, and we think he was correct in so holding. Malinowski v. Railway, 154 Mich. 104 (117 N. W. 565); Saginaw Milling Co. v. Mower, 154 Mich. 620 (118 N. W. 622).

It is apparent, from an examination of the affidavits filed in support of the motion for a new trial, that the newly discovered evidence is evidence tending solely to impeach the witness Koviak. Ordinarily a new trial will not be granted because of newly discovered evidence to impeach a witness. 29 Cyc. p. 918, and authorities there collected. There seems to have been no good reason why the testimony claimed to have been newly discovered should not have been produced at the time of the trial. This was the third trial, wherein the liability of appellant for this particular sale of liquor was in question. At each trial Koviak was a witness. All of the alleged newly discovered witnesses have lived for many years in the vicinity, and their testimony could have been secured by the exercise of due diligence.

The charge of the court was, in part, as follows:

“ Plaintiff may recover damages for feelings or disgrace, shame, and mortification which he has suffered, or may hereafter suffer. * * * You are further instructed that actual damages are regarded as injuries to feelings, shame, and mortification, mental anxiety, insulted honor, and indignation.”

We think error is properly assigned upon this portion of the charge. There is no doubt that in a proper case and upon proper testimony damages for the mortification, shame, and disgrace caused by the intoxication can be recovered (Friend v. Dunks, 37 Mich. 25), but we are unable to find any case which holds that such damages may be awarded to a plaintiff, in the absence of all testimony tending to show that plaintiff has suffered injury on account of this element. The plaintiff in the case at bar was at the time of the trial but seven years old, and but four years of age when his father died. We think it highly improbable that a child of such tender years could suffer from mortification, shame, and disgrace on account of his father’s intoxication. Damages for this element have been refused in the case of a plaintiff 11 years old, where the father was an habitual drunkard (Sissing v. Beach, 99 Mich. 439 [58 N. W. 364]), and in the case of an adult plaintiff, where there was ho evidence of mortification or mental anguish on account of the intoxication (Johnson v. Schultz, 74 Mich. 75 [41 N. W. 865]). In the absence of all testimony upon the question, the jury should not have been permitted to enter the realm of speculation.

Error is assigned upon other portions of the charge, it being claimed that in some respects it was erroneous, and in others not sufficiently explicit. We find no error, except as above indicated, and if defendants desired more explicit instructions, it was their duty to have tendered requests to charge, which was not done. They cannot now complain. Mahiat v. Codde, 106 Mich. 387 (64 N. W. 194); Record Publishing Co. v. Merwin, 115 Mich. 10 (72 N. W. 998); McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21); Field v. Magee, 122 Mich. 556 (81 N. W. 354); Hewitt v. Lumber Co.; 136 Mich. 110 (98 N. W. 992).

Other errors are assigned upon the admission of testimony and remarks of counsel. As such are not likely to arise upon another trial, they require no discussion.

For the error pointed out, the judgment is reversed, and a new trial granted.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    TEN BROEK v. JANSMA.
    1. Insurance — Application — Contracts — Offer and Acceptance.
    Contract relations are not created between insured and insurer by an application for life insurance subject to approval of the insurer, where a note is given for the premium, and the applicant, before his required medical examination, and before acceptance or approval, notifies the agent of the insurer that he does not care for the insurance.
    2. ' Same — Remedy.
    If the note and application constitute a binding contract, the remedy for its breach is an action for damages by the insurer, not an action on the note.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted April 15, 1910.
    (Docket No. 86.)
    Decided June 6, 1910.
    Assumpsit by Henry W. Ten Broek against Fred Jansma upon a promissory note. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      Smedley, Hall & Freeland, for appellant.

      Leonard D. Verdier, for appellee.
   Hooker, J.

The plaintiff having appealed from a judgment of no cause of action, and the statement of facts in his brief not being questioned by defendant’s counsel, we treat it as correct under the rule.

The action was brought on a promissory note for $160 given to a solicitor for the Central Life Assurance Company of the United States. The solicitor, who is the plaintiff, solicited defendant for insurance and wrote an application for a policy of $10,000, and the defendant signed it. It contained the following provision:

“Fill in the kind of premium desired, and if the first year’s premium is paid other than annual the cash must he collected for at least the first quarter and note taken for the balance of the first year’s premium.
“ I hereby agree that this application with medical examination and the policy hereby applied for, taken together, shall constitute the entire contract between the parties hereto, and I hereby represent that all the answers made to the above questions and those that shall be made to the medical examiner are true, and form the basis of an insurance contract, and this contract shall not take effect until the first premium has been paid during my good health.
“I also agree to have required medical examination made at once by a physician acceptable to the society.
“Dated at Grand Rapids, May 17, 1909.
[Signed] “Fred Jansma.”

He thereupon signed and delivered a note to the plaintiff:

“Grand Rapids, May 17, 1909.
“ Sixty days after date I promise to pay to the order of H. W. Ten Broek, at the West Side Branch Kent State Bank, $160, to apply on the ten thousand dollar life insurance policy applied for.
[Signed] “Fred Jansma.
“Value received. Due July 17, $160.”

The plaintiff testified that:

“To the best of my knowledge, at the time that I received that note from him, I gave him my receipt. This is a copy of the receipt we usually give. It seems to be a carbon copy, made at the same time. * * *
. “ ‘ Central Life Assurance Society of the United . States.
“ ‘Observatory Building, Rooms 607-612, Des Moines, Iowa,
No. 85,237.
“ ‘Received of Fred Jansma, $-, also note for $160 due July 17, 1909, for $10,000 of insurance in the Central Life Assurance Society of the United States, on the ten-year .renewable form. The conditions of this receipt are that the above-named amount will be returned if the applicant is examined and the policy is not issued; but if the applicant fails to be examined within ten days from this date it is agreed that the above amount will be the consideration for the preparation of the application and soliciting the risk, and stall thereupon become the property of the said company without further action on its part. The same to be returned to applicant if, after medical examination, the society declines to accept the risk.
“ ‘ Dated at Grand Rapids, Mich., May 17, 1909.
“ ‘ H. W. Ten Broek, Agent.’ ”

The defendant testified that no such receipt was given. Afterwards he called two or three times upon the medical examiner for examination, but did not find him, and finally concluded that he did not care for the insurance, and so told the plaintiff. When the note became due, plaintiff began this action. The defense was “want of consideration.” The case was submitted to the jury upon the facts, and they evidently found that no receipt was given or received understandingly. We are asked to hold that the application and note established contract obligations between the defendant and the company, and that there was sufficient consideration for the note.

The application was a request for a life insurance policy. The company was at liberty to accept or reject it, and before acceptance the defendant had a right to withdraw his request or offer to accept a policy, unless the general rule applicable to contracts does not apply. The fact that the defendant advanced or gave his note for the first premium makes no difference. The company never signified its acceptance. That this rule applies to insurance contracts generally is asserted in many cases. 16 Am. & Eng. Enc. Law (2d Ed.), p. 850, and note; Faughner v. Insurance Co., 86. Mich. 536 (49 N. W. 643); Michigan Pipe Co. v. Insurance Co., 92 Mich. 491, 493 (52 N. W. 1070, 20 L. R. A. 277); Zimmermann v. Insurance Co., 110 Mich. 399 (68 N. W. 215, 33 L. R. A. 698); Gauntlett v. Insurance Co., 127 Mich. 504 (86 N. W. 1047). The learned trial judge so held. The only similar case cited by counsel is Lewis v. Carr, 86 Ill. App. 412. That is not a court of last resort, and the decision is apparently one of first impression, no authority being cited in the opinion.

If any contract was made (which we do not intend to imply) it was between the company and the defendant. Counsel’s claim seems to be that the application and note bound defendant to submit to an examination, and that inasmuch as he did not, but refused, he is liable on this note. If it were to be conceded that a binding contract was made, it was not a contract of insurance but a conditional contract to insure. If either party repudiated the alleged contract, the other might sue for the breach and recover the damages, but could not recover on a note given for a premium upon a policy never issued.

No error appears in the record, and the judgment is affirmed.

Ostrander, Moore, McAlvay, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    WEDEMEYER v. HINDELANG.
    1. Banks and Banking — Words and Phrases — Surplus—Insolvency.
    The surplus of a bank, except as required by law, is a fund created and augmented for convenience and profit, and, like the capital, is payable out of the assets of the bank after the creditors have been paid in full.

      2. Same — Stock and Stockholders.
    Stockholders are not creditors of the bank to a proportional share of the surplus.
    3. Same — Stockholders—Statutory Liability — Statutes—Receivers.
    Stockholders of a bank may not set off their interest in the surplus after its insolvency, to defeat or diminish their statutory liability for the benefit of creditors. 2 Comp. Laws, §§ 6103, 6135.

      4. Same.
    Such liability is not that of a surety.
    5. Same — Interest—Stockholders’ Liability.
    Interest on the amount assessable upon stockholders for the benefit of the bank’s creditors runs from the date of the order of the court determining the necessity for enforcing the liability-
    Appeal from Washtenaw; Kinne, J.
    Submitted April 15, 1910.
    (Docket No. 124.)
    .Decided June 6, 1910.
    Bill by William W. Wedemeyer, receiver of the Chelsea Savings Bank, against Victor D. Hindelang and others to enforce the statutory liability of the stockholders in said bank to the depositors. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      M. J. Cavanaugh (Arthur Brown and George JV Burke, of counsel), for complainant.

      Louis E. Howlett (John Kalmhack, of counsel), for defendants.
    It is provided (2 Comp. Laws, § 6135) with respect to banks organized under the laws of this State:
    “The stockholders of every bank shall be individually liable, equally and ratably, and not one for another, for the benefit of the depositors in said -bank to the amount of their stock at the par value thereof, in addition to the said stock. * * * ”
    It is also provided (section 6102) that:
    “The board of directors of a bank may declare a dividend of so much of the net profits of the bank, after providing for all expenses, losses, interest, and taxes accrued or due from said bank, as they shall judge expedient; but before any such dividend is declared not less than one-tenth of the net profits of the bank for the preceding half year, or for such period as is covered by the dividend, shall be carried to a surplus fund until such surplus shall amount to twenty per cent, of its capital stock.”
    The capital stock of the Chelsea Savings Bank, which is a State bank, is $100,000. When the bank was closed for liquidation, it appeared to have a surplus fund of $95,000, besides several thousands of dollars of undivided profits. If owed regular depositors, commercial and savings, more than $1,000,000. Various dividends have been declared and paid out of the assets of the bank. The receiver of the bank on April 39, 1908, procured an order from the proper court requiring the stockholders of the bank to pay to him, for the benefit of depositors in the bank, an amount equal to the par value of the stock. The assets of the bank coming to the hands of the receiver will fall more than $100,000 short of paying depositors. He estimates that, on account of the insolvency of certain stockholders, the amount realized by enforcing the stockholders’ statute liability will be very much less than $100,-000. To enforce the aforesaid order of the court, the receiver filed his bill in chancery against certain stockholders. Defendants answered, and in their answer contend that the stockholders are entitled to be considered as depositors to the amount of the surplus of the bank. The decree of the court below denied this contention, and required the stockholders to pay an amount, respectively, equal to the par value of the stock, with interest from December 3, 1907, which was the day the bank was closed by the banking commissioner. Certain defendants have appealed from the decree, and they present for determination the point which has been referred to, and, also, the one that the court erroneously fixed the date from which interest should be charged against them.
   Ostrander, J.

(after stating the facts). No authority has been presented, and we assume none can be found, sustaining the proposition that the assets of a bank, carried in its surplus fund, are in any sense deposits in the bank, or that the stockholders are, to the amount of said fund, depositors in the bank. Undoubtedly the surplus belongs to the stockholders; so does the capital, and, for that matter, so do the undivided profits. But would it be contended that in liquidating the affairs of a bank the amount of the surplus is a debt due to stockholders to be proved and paid ratably with the claims of other creditors ? Undoubtedly an actual surplus may be reduced by the division thereof and the payment of proportional shares to stockholders. But until such division is made and the amount divided is separated from the total of the assets and distributed to individuals, it is owned by the shareholders collectively and is by them collectively embarked just as the capital of the bank is embarked in the adventure of banking. Except as a surplus fund is required by the law, it is a fund created and augmented for convenience and profit, and, like the capital, is payable out of the assets of the bank after the creditors have been paid in full. Stockholders are not creditors of the bank to the amount of a proportional share of the surplus. They have not lent the money represented by the surplus to the bank.

There is no reasonable construction of the statute which supports the contention of the appellants. The meaning of the word “ depositors,” as it is employed in the statute, is a somewhat restricted one. State Savings Bank v. Foster, 118 Mich. 268 (76 N. W. 499, 42 L. R. A. 404). A surplus is not only required by the law to be created, it is recognized, after its creation, in the directions concerning the deposits which the bank may make (section 6116), and in the limitation of loans which may be made by the bank (section 6141), as a part of the working capital of the bank. The statute liability of a stockholder “for the benefit of the depositors in said bank ” is not that of a surety. Foster v. Bow, 120 Mich. 1 (79 N. W. 696, 77 Am. St. Rep. 565). It is created for the benefit of depositors only, and is in addition to the benefit to be derived by them from the ordinary assets of the bank. It cannot be presumed that this liability was created to protect the surplus, or that the word “ depositors ” is employed in the statute with other than its ordinary meaning in the business of banking. The court below was right in so deciding.

The court was in error in requiring interest to be paid from the day when the bank was closed. Counsel for the receiver have not in the brief attempted to sustain the decree in this respect. The stockholders, with respect to the liability now asserted, were not in default when the bank was closed, and it is only upon the theory of a default in paying what was due and payable that interest may be exacted. Interest should be computed from the time when it was determined by the court that it was necessary to enforce the stockholders’ liability.

The decree will be so modified as to require interest to be computed from April 29, 1908. In all other respects it is affirmed, with costs to complainant.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    PENINSULA LEASING CO. v. CODY.
    1. Corporations —Subscription to Stock — Sales — Statute of Frauds.
    The issuance of stock by subscription is not a sale within the statute of frauds.
    2. Same — Calls—Notice.
    It is a question of fact whether a subscriber to stock of a corporation, whose by-laws specify no form of notice, had sufficient notice of calls which he was requested and refused to pay, making no objection to the form of notice; the action being for the amount thereof and not to forfeit or sell his stock.

      3. Same — Method of Subscription.
    It is the general rule that no one can obtain the rights of a member in a corporation except in compliance with the governing law.
    4. Same — Estoppel.
    Where the several stockholders of a company agree to organize a second corporation, and the shares were allotted proportionately to the knowledge of all the parties, and the subscriber paid calls for a portion of his allotment, he is properly held to be a stockholder liable for his entire proportion of the stock.
    Error to Kent; McDonald, J.
    Submitted April 18, 1910.
    (Docket No. 27.)
    Decided June 6, 1910.
    Assumpsit by the Peninsula Leasing Company against Darwin D. Cody upon a subscription to the capital stock of plaintiff corporation. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Crane & Norris, for appellant.

      Thompson & Temple, for appellee.
    The plaintiff is a Michigan corporation, organized under the provisions of 2 Comp. Laws, chap. 187, as amended. The action is assumpsit, brought to recover certain alleged assessments or calls made by plaintiff’s directors upon subscribers to the capital stock. Defendant did not sign the articles of association, and has never, in writing, subscribed for or offered or agreed to take and pay for any of the stock. It is therefore evident that the liability of defendant which is asserted must be rested upon relations and mutual dealings of the parties which have in law the effect of making defendant a subscriber for stock. And this is, in fact, the theory of the plaintiff. The trial court, upon all the testimony which was produced, made the following ruling:
    “ In this matter the plaintiff’s testimony is to the effect that an allotment of stock in the plaintiff company was made and 30 shares at $25 were allotted to defendant Cody, and Mr. Cody was not present, but was informed of the action by the company, and, it is claimed, consented to the allotment and agreed to pay for 30 shares at $25 each, and afterwards assessments were made in accordance with the allotment, and Mr. Cody paid his assessments until he said he had paid the sum of $375, at which time he refused to pay any further on the ground that he did not subscribe for any further stock. Now, whatever might be said about the validity of the original transaction, I think the subsequent dealings of the parties creates an estoppel. As to the notice of the assessment sued upon, the by-laws are silent as to any method of giving notice, but there is evidence that notice of some kind was given, so that I think there is a question for the jury, and I will deny the motion to direct a verdict.”
    Certain undisputed facts in addition to those above stated are relied upon by defendant. The by-laws of plaintiff do not provide for sales of stock. There is no-resolution or other action of stockholders providing, for sales or any sale of capital stock. There is no affirmative resolution or vote of stockholders or directors allotting stock. The defendant paid calls as they were made until he had contributed $375. He declined to pay further, and. demanded of an officer of the company a certificate for 15 shares of stock. This certificate was issued and delivered to him, but not by any authorization of the stockholders or directors.
    The testimony relied upon for plaintiff tended to prove that the plaintiff corporation was organized by. certain stockholders of another corporation, called the Mutual Mining Company, to lease and explore certain property in Colorado belonging to the Mutual Mining Company. Defendant attended none of the meetings of the promoters of plaintiff company, but he was generally cognizant of the situation, of what was proposed to be done, and of what was done. He understood that stockholders of the Mutual Mining Company were to organize the plaintiff company and take and pay for its stock, and that some allotment of stock would be made to him. He agreed, by parol, to take about $750. The articles of association provide for a capital of $10,000, with 400 shares. Seven gentlemen, residents of Grand Rapids, subscribed the articles of association and for a total of 240 shares of the capital stock. The articles were acknowledged July 11, 1907, and on that day the first meeting of stockholders was held, at which all of the subscribers were present. By-laws, six in number, were adopted, which provide for a board of five directors, that directors’ or stockholders’ meetings may be held at any time upon the call of the president, and that the by-laws may be amended or changed at any general or special meeting of the board of directors. There is no by-law providing for or regulating sales of stock. The directors are named in the articles. The printed record is silent upon the subject of the election of officers, but it appears that Mr. Charles R. Sligh acted as president, Mr. D. Emmett Welsh as secretary, and Mr. Lewis E. Hawkins as treasurer. At a regular meeting of directors held July 20,1907, attended by all of them, the first Tuesday of each month was fixed for the regular meeting of directors, and the place of meeting was designated. A meeting was held August 3, 1907, and, while it is designated in the record thereof as a meeting of the company, it was attended, as the record thereof discloses, by the five directors. At this meeting, a memorandum of an allotment of capital stock was produced, and was entered on the record. The total of shares allotted was 396. Among the persons to whom shares were allotted are all those subscribing the articles of association, excepting two who subscribed for two shares each (whose shares were, however, taken by some one else), and, in addition, a number of persons, among them defendant, to whom was allotted 30 shares. Defendant was advised of this allotment, at first objected to the number of shares allotted, and later, by parol, consented or agreed to it. Assessments or calls were made by the directors July 20, 1907, 10 per cent. -r August 3,1907, 10 per cent.; September 3, 1907, 15 per cent.; October 7, 1907, 15 per cent.; October 24, 1907, 15 per cent.; December 7, 1907, 15 per cent.; January 1, 1908, 10 per cent.; February 1, 1908, 10 per cent. Defendant knew that as to him the calls were made upon 30 shares or $750 par value. He paid four assessments. The money collected was expended for the plaintiff in exploiting the leased property and demonstrating its value. On his cross-examination, the defendant testified, in part, as follows:

      “ There was only one meeting that I remember that I was present at before the incorporation. That was at Mr. Davidson’s office. There were present Mr. Case, Sligh, Hawkins, Davidson, and myself. There might have been one or two more, I don’t remember just now. I don’t think Mr. Sligh there had this paper, showing the •allotment with him at that time.

      “Q. Do you say you never agreed to take any of the-stock at all ?

      “A. No, sir; I never said yes or no.

      “Q. What did you expect you were paying for when you paid the 10 per cent.?

      “A. Well, they suppose — or I supposed that they supposed — I was to take it.

      “Q. You supposed you had taken it too, did you not?

      “A. Well, no, I did not. I didn’t know whether I would take any or not.
    “ Q. What did you pay for, if you did not suppose—

      “A. I was a member of the old organization, so I thought maybe it would be well enough to take a little of the stock.
    “Q. You knew when you paid that 10 per cent, you were paying on $750 worth of stock ?

      “A. No, sir; not to take it.

      “Q. You knew you were paying on that ratio ?

      “A. I supposed that they would figure by that ratio.

      “Q. You knew they did ?

      “A. On an assessment. I was not talking about this, remember.
    “ Q. When you paid the other assessment also it was based on the $750 allotment of stock ?

      “A. Yes, sir.”
    The jury was instructed, in substance and effect, that, -to entitle plaintiff to recover, it must appear by a preponderance of the evidence that defendant promised and agreed to pay for 30 shares of stock at $25 per share, and that there was due and unpaid $3?5; that if plaintiff did not agree to sell and defendant to buy the stock, so that mutual promises were made, there could be no recovery, and there could be none if defendant made his last payment, and it was received with the mutual understanding that it was a payment in full. The jury was instructed, further, that plaintiff had the burden of proving that the assessments sued for were made by the directors, and that defendant Cody was given notice thereof. There was a verdict and judgment for plaintiff.
    Aside from errors assigned upon rulings admitting testimony, the defendant contends:

      First. There was no legal subscription, because (a) stock in a company organized under this statute can be sold only in such manner as the by-laws may prescribe— 3 Comp. Laws, § 6993; (6) the alleged subscription rested in parol, and was made void by the statute of frauds.

      Second. There was never a valid call for the assessments sued for. Act No. 28, Pub. Acts 1905, § 18.

      Third. Defendant had no notice of the calls sued for as required by the statute. Pub. Acts 1905, supra.

      Fourth. The defendant paid for and received a full-paid certificate of stock and thus ended all relations as a subscriber or claimed subscriber to stock.
    These contentions are based upon appropriate exceptions and raised by assignments of error.
   Ostrander, J.

(after stating the facts). We are of opinion, based upon the testimony, that the appellant may not complain that the question whether his last payment was accepted in settlement of his alleged subscription was submitted to the jury as a question of fact.

As has been stated, the testimony tends to prove that all calls were made by the board of directors. The action was affirmative, and is evidenced by the record of proceedings of the board. Counsel for appellant say that two calls, viz., those of October 24, 1907, and January 1, 1908, appear to have been made at a meeting of the Peninsula Leasing Company, and one, viz., that of February 1, 1908, at a meeting of the Peninsular Mining Company, and they say “none of these meetings was a directors’ meeting.” But the records of proceedings at these meetings show much more. The persons named as being present and the business transacted indicate that they were, in fact, directors’ meetings. The statute of frauds (Sprague v. Hosie, 155 Mich. 80 [118 N. W. 497, 19 L. R. A. (N. S.) 874]) has no application in a case where the arrangement does not provide for or contemplate a sale of stock. Here the arrangement was that the stock, as it originated — as it was issued by the company — should stand in the name of defendant. Green v. Brookins, 23 Mich. 48, 54 (9 Am. Rep. 74).

It was a question of fact whether defendant had notice of the calls. The by-laws did not prescribe the notice to be given or the manner of giving it. But defendant did not question the form or manner of the notice of cails which he paid, and as we think his liability is established, in part, by such payments, and as he refused to pay any other or further calls, we do not regard it as important, for the purposes of this action, to know more than that he was thereafter requested, as he had been before, to pay calls; a reasonable time being afforded him. ■ He is neither surprised nor injured by a lack of formality. If it was sought to forfeit or to sell his shares for nonpayment of calls, a different question might be presented.

The meritorious question, the one which, if answered favorably to plaintiff, disposes of the other contentions of appellant, is whether the dealings of the parties estop defendant to deny his obligation to take and pay for 30 shares of stock and as well estop the plaintiff to deny him the right to 30 shares. It is undoubtedly of importance, especially when subscriptions to the capital stock of corporations are made, or sales thereof at or near the time of its organization, to know certainly who have become liable to' the responsibilities and are entitled to the rights of shareholders. And it is the general rule that no one can obtain the rights of a member in a corporation except in compliance with the governing law. If that law prescribes conditions or special methods for becoming a member, the law is imperative. This court has held rather strictly to this general rule. Carlisle v. Railroad Co., 27 Mich. 315; Shurtz v. Railroad Co., 9 Mich. 269; Parker v. Railroad Co., 33 Mich. 23. And see Swartwout v. Railroad Co., 24 Mich. 389; International Fair & Exposition Ass’n v. Walker, 88 Mich. 62 (49 N. W. 1086). But these cases, as well as those from other jurisdictions, also recognize the doctrine that the relation of a member in a corporation may arise out of mutual dealings between the individual and the corporation. In the case at bar the testimony warrants the conclusion that the whole movement to organize the plaintiff company was mutual among certain members of another corporation, of whom the defendant was one. There was, in fact, no sale of capital stock to defendant in the ordinary way. The testimony for plaintiff tends to prove an agreement, a mutual preliminary arrangement, carried out by the alleged allotment of shares. It tends to prove that defendant was, to his knowledge, relied upon by his associates to take some stock, and that he, to their knowledge, assented to both the preliminary arrangement and the subsequent actual allotment. There is no denying the fact that defendant acted in accordance with the idea that he was a subscriber for thirty shares of stock. It is just as plain that the corporation recognized him as the subscriber to thirty shares of stock. It cannot be doubted that, if he had continued to pay calls, he could not be denied the shares to which the record of the corporation showed him to be entitled. Upon this subject, see, generally, 10 Cyc. p. 532; 1 Cook on Stock & Stockholders, § 52 et seq. The verdict, upon the issues submitted to the jury, is supported by testimony, and the judgment entered on the verdict ought not, for any reason so far considered, to be disturbed. We find in the other contentions made none which are not disposed of adversely to appellant by- what has been said.

The judgment is affirmed.

Hooker, Moore, Blair, and Stone, JJ., concurred


text:
    ZANGER v. ZANGER.
    Divorce — Appeal and Error — Judgment—Alimony — Security
    for Payment.
    After the entry of a decree of divorce awarding the complainant alimony against her husband, and securing the payment by a lien upon property of the defendant which, under the terms of the decree, might be released from the lien upon the substitution of other property worth §12,000, it is not a proper question for determination, on appeal from a subsequent order permitting a substitution of other property whether or not the original order gave complainant adequate security in fixing the required security at §12,000.
    Appeal from Wayne; Murfin, J.
    Submitted April 18, 1910.
    (Docket No. 62.)
    Decided June 6,1910.
    Bill by Electa F. Zanger against Gustav W. Zanger for a divorce. There was a decree for complainant, and subsequently upon petition of defendant an order was entered modifying the security for the payment of alimony; from which complainant appeals.
    Affirmed.

      Walter Barlow, for complainant.
    Lucking, Emmons & Helfman, for defendant.
   Ostrander, J.

In November, 1907, complainant secured a divorce from the defendant, and in the decree which was rendered it is provided that, in consideration of the discharge and satisfaction of all claims for alimony, solicitor’s fees, further support, maintenance, and dower the defendant should pay to complainant $150 monthly, in monthly installments, beginning November 12, 1907, and continuing during the life of complainant or until she should remarry. Complainant was given a lien to secure payment of the alimony upon certain property in the city of Detroit, which was described in the decree. It was also decreed that upon 15 days’ notice in writing to the said complainant, or her solicitor, and upon the offer of the said defendant to give her a lien upon other property “having a fair value of $13,000,” she should relinquish the lien upon the property described in the decree, and, in lieu thereof, have a lien upon the substituted property as security for the payment of the said alimony, and that in the event of a disagreement as to the value of the property offered in lieu of the premises described in the decree the court, upon a proper application, should determine as to the value of the property so offered, and that the decision of the court upon the subject of the value of the property should be binding upon the respective parties. In November, 1909, the defendant, pursuant to the decree, asked the complainant to relinquish and surrender her lien upon the property described in the decree" and to accept in lieu thereof a lien upon 155 acres of land in the township of Ecorse, Wayne county, upon which property there was a first lien of $5,000. She declined to do this, and the defendant filed hi3 petition in the Wayne circuit court, in chancery, asking the court for an order discharging the property mentioned in the decree from the lien created by the decree- and to transfer the same to the said Ecorse property subject to the $5,000 mortgage. The complainant answered the petition of defendant, and set up that she is 36 years old, and has a prospect of life of 31 years 5 that the present cash value of the decree for alimony according to her prospect of life is upwards of $33,000; that the property in the city of Detroit upon which she has a lien is worth $75,000 and is subject to prior liens of $30,-000; that property of the value of $12,000 is not adequate security for the payment of her alimony; that the land in Ecorse is in a farming community, can only be used for farming purposes, is not good, productive farm land, and is not worth to exceed $10,000 or thereabouts, and that it would be unfair to compel her to accept a lien upon that property in lieu of the property described in the decree. Some testimony was taken, and on the 13th of December last the court entered an order discharging the property described in the original decree from the lien, giving to the complainant in lieu thereof a lien subject to a first mortgage of $5,000 upon the property in the township of Ecorse, said order to become operative when a warranty deed conveying said property to defendant had been duly recorded. From this order the complainant has appealed.

In her brief it is said that the appeal presents two questions; one of them being whether property of the fair value of $12,000 is adequate security for the payment -of $150 monthly as alimony during the lifetime of complainant or until she may remarry. It is not claimed that the court was without power to insert such a provision in the decree. We think the question is not before us for decision. It was a subject for consideration when the original decree was granted. Nothing is now presented upon that subject which might not have been presented at the hearing of the divorce case. This is not a proceeding under the statute (3 Comp. Laws, § 8641), for a modification of the original decree, and, if it were, it does not appear that any facts have arisen since the entry of the decree or that any change has taken place in the condition of the parties requiring or warranting a modification of the decree. See Perkins v. Perkins, 12 Mich. 456; Chandler v. Chandler, 24 Mich. 176; Reynolds v. Reynolds, 115 Mich. 378 (73 N. W. 425).

The other question is whether the testimony produced in the court below shows the substituted property to be fairly worth $12,000. We think it does, and that upon this subject there is no fair dispute.

The decree is affirmed, but without costs.

Hooker, Moore, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    FARLIN v. SANBORN.

    1. Wills — Life Estate — Power to Convey.
    The conveyance by will of testator’s real and personal property to his widow for life, with power to dispose of it for her support and comfort, the portion remaining at her death to go to testator’s heirs, transfers a life estate with a vested remainder to his heirs living at the time of his decease.
    2. Same — Estates—Real Property.
    An estate conveyed generally or indefinitely with a power of disposition carries a fee except where the testator gives to the first taker an estate for life only, by express words, and annexes to it a power of disposal.
    3. Same — Estates of Decedents.
    The grantee obtains no right, under such a provision, to give away the property by gift or testamentary disposition.
    4. Judgment — Res Judicata — Probate Courts — Estates of Decedents.
    Where the beneficiary, who was executrix under the will, filed her final account in probate court showing the amount of property remaining in her hands, without disclosing what had been done with the part conveyed away by her, the order of the probate court allowing the account is not res judicata as to the construction of the will or the transfers made by her of the property.

      Appeal from Wayne; Hosmer, J.
    Submitted April 21, 1910.
    (Docket No. 14.)
    Decided June 6, 1910.
    Bill by James A. Farlin and others against Nancy M. Sanborn for a construction of the last will and testament of Charles D. Farlin, deceased, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed, and remanded for an accounting.

      Guy A. Miller (Lucking, Emmons & Helfman and Alex J. Groesbeck, of counsel), for complainants.

      H. M. & D. B. Dujjield (Orla B. Taylor, of counsel), for defendant.

       Rehearing denied July 15, 1910.

   Stone, J.

Complainants are all the living heirs of Charles D. Farlin, deceased, and filed their bill in this cause to obtain a construction of the will of said Charles D. Farlin, to set aside certain transfers of property made by the widow, Sarah M. Farlin, to the defendant, and to secure an accounting of the property of the estate of said Charles D. Farlin that came to the possession of, and was enjoyed by, said Sarah M. Farlin during her lifetime. The defendant is the executrix and devisee under the will of said Sarah M. Farlin, and is the niece of Mrs. Farlin. From a decree dismissing the bill of complaint, the complainants have appealed.

So far as material to the issues in this case, the said will of Charles D. Farlin, deceased, reads as follows:

“First. I do hereby will, devise and bequeath all and singular the estate of which I may die seised, real, personal and mixed, to my wife Sarah M. Farlin for and during her natural life, with full power and authority to use and dispose of the same for her use, support and comfort, as to her shall seem best. Also with full power and authority to sell and convey all or any of the real estate, of which I shall die seised, at her own option as fully as I myself could do.
“Secondly. Upon the death of my said wife Sarah M. Farlin, I do hereby give, devise and bequeath all the property that may be remaining of my estate, whether real, personal or mixed, to my heirs living at my decease.
“Thirdly. I hereby constitute and appoint Sarah M. Farlin the executrix of this my last will and testament, with full power as such executrix to sell and convey any of the real estate of which I may die seised.”

The above will was executed June 1, 1867. Charles D. Farlin, a resident of Detroit, died in 1884. The will was admitted to probate in Wayne county upon the petition of Mrs. Farlin. At the time of the execution of the said will, Mrs. Farlin was 47 years of age. She died in 1908 at the age of 88 years. There were no children.

Complainants’ position and contentions are as follows:

(1) That the will of Charles D. Farlin created a life estate in Sarah M. Farlin, with a vested remainder over to his heirs living at the time of his decease.

(2) That under the will the life tenant had the followingrights: (a) To use the property; (6) to dispose of it— both rights being for her use, support, and comfort only. That she had no right to give away the property, either by gift inter vivos, or by testamentary disposition, and in that manner defeat the will of the testator.

(3) That the property in the possession of Sarah M. Farlin at her decease being now in the possession of the defendant as her executrix, complainants are now entitled to an accounting with respect to the property derived from the estate of Charles D. Farlin.

As we understand the position of the defendant, it is:

(1) That the decree dismissing the bill should be affirmed: (ra) Because an absolute estate was devised to the wife; that an estáte in words for life, but coupled with an unlimited power of disposition, creates an estate in fee. (6) That the probate court having jurisdiction to construe wills, and the widow expressly asserting from the beginning that she w;as the sole legatee, the order of the court discharging her, and canceling her bond, could only have been made upon a construction of the will favorable to her contention, which construction, at the end of 10 years, it is too late to question.

(2) If the power of disposition shall be construed as limited, then no complaint can be made of the widow’s disposition, since it has been in accordance with her own sound judgment and discretion for her use and comfort, as to her seemed best.

(3) That if an accounting should be ordered, it should not antedate the discharge of the executrix in 1903, since at that time she showed to the probate court, and obtained its approval of, such dispositions as she had theretofore made, which cannot now be reopened.

It should be stated that the defendant has been appointed executrix of the will of Sarah M. Farlin, and claims by virtue of the bequests therein contained to be the absolute owner of the entire estate, whether derived from the estate of Charles D. Farlin, deceased, or from the separate property of Mrs. Farlin. It also appears that on December 21, 1893, Sarah M. Farlin filed her petition in the probate court, in the matter of the estate of Charles D. Farlin, deceased, representing that she was executrix; that all the proceedings required by law for the examination and allowance of all claims against said deceased, and for the proper administration and settlement of said estate, had been taken; that all the debts, funeral charges, and expenses of administration had been fully paid; that she was the sole devisee under the last will and testament of deceased.

The petition prayed that a day be fixed for hearing the petition, and due notice thereof given to all persons interested, as the court should direct, and that such residue of said estate might be, by the decree of said court, duly assigned and set over to her, and that said estate be closed and petitioner’s bond as executrix canceled. Attached to said petition was a paper writing purporting to be a partial inventory of estate of Charles D. Farlin, showing part undisposed of by Sarah M. Farlin, executrix. Notice of hearing on said petition was published for three weeks in the Detroit Free Press. No other notice thereof was given. The said petition is indorsed as follows:

“ No. 11,907. State of Michigan. The Probate Court for the County of Wayne. Estate of Charles D. Farlin, deceased. Petition to close estate. Filed December 21, 1893. Morse Rohnert, Deputy Register of Probate. Examined and allowed as stated. Executrix discharged and her bond canceled. January 23, 1894. Edgar O. Durfee, Judge of Probate. Recorded Liber 190, page 603.”

No other or further entry appears to have been made in said estate in the probate court.

Referring to the first question raised in this case, counsel for defendant have well said that there are two lines of authorities to be found in our reports which, on a superficial examination, seem to reach opposite conclusions on the same facts. A careful analysis of the cases, however, discloses a clear line of distinction. After a careful examination of our decisions, we are of opinion that the will of Charles D. Farlin here under consideration created a life estate in Sarah M. Farlin, with a vested remainder over to his heirs living at the time of his decease. In our opinion the case is ruled by the following cases in this court: Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Jones v. Deming, 91 Mich. 481 (51 N. W. 1119); In re Mallary’s Estate, 127 Mich. 119 (86 N. W. 541, 89 N. W. 348); Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584); Hull v. Hull, 122 Mich. 338 (81 N. W. 89). Many other cases might be cited to the same effect. We leave this branch of the case by quoting the following language of Chancellor Kent, in Jackson v. Robins, 16 Johns. (N. Y.) 588:

“We may lay it down as an incontrovertible rule that where an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee. The only exception to the rule is where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case the devisee for life will not take an estate in fee, notwithstanding the distinct and náked gift of a power of disposition of the reversion.”

With this doctrine in mind, we think that Jones v. Jones, 25 Mich 401, Dills v. La Tour, 136 Mich. 243 (98 N. W. 1004), and kindred cases, are readily distinguishable from the case at bar.

Under the will of her husband, Mrs. Farlin, as life tenant, had the right to use and dispose of the property for her use, support, and comfort. This did not give her a right to give away the property, either by gift inter vivos or by testamentary disposition, and in that manner defeat the will of the testator. The right to convey and dispose of was for a specific purpose, to wit, for her use, support, and comfort. Glover v. Reid, supra. It was said by Justice Montgomery, in Gadd v. Stoner, supra:

“ In the same connection it is said that there is no limitation on the power of sale. But if the estate vested in her is less than a fee, certainly the limitation of good faith will be affixed by law.”

Was the action of the probate court in 1893-94 res judicata upon the subject of either the construction of the will, or the assignment of the estate? We think not. The court made no order upon either subject. It will be noticed that in Glover v. Reid, supra, the order, or decree of the probate court was explicit:

“And turn the same over to her as legatee and absolute owner thereof.”

Such was not even the prayer of the petition of Mrs. Farlin. She simply prayed that the residue of the estate be duly assigned and set over to her. This might well have been done, for she, in any view of the matter, was entitled to it during her life. But even that order was not made. We think that, if anything can be gathered from the action of the probate court, it is that it refrained from any attempted construction of the will. Neither was there any such settlement of the account and administration of the executrix as would preclude inquiry into the manner of the disposition of the property of the estate of Charles D. Farlin, deceased. The record fails to show that any statement or account of the disposition of the property was before the probate court. At most there was simply a statement showing the residue of the estate then undisposed of. How the property had been disposed of did not appear. We are of the opinion, from this record, that the action of the probate court was not res judicata upon any question here involved.

The decree of the court below must be reversed.

We agree with the contention of defendant’s counsel that the case should be remanded to the circuit court for an accounting. Not only does the record fail to show a proper basis for an accounting, but we think that the statement of complainants’ counsel on the hearing below justified defendant in not then going into an accounting. The case will be remanded accordingly. The complainants will recover their costs in this court.

Ostrander, Hooker, Moore, and Blair, JJ., concurred.


text:
    PEOPLE v. JEFFERSON.
    1. Appeal and Error — Brief—Statement op Facts.
    Noncomplianee with Supreme Court Rule 40, which requires the brief of appellant to contain a clear and concise statement of the errors relied on, and failure of the brief to discuss questions raised by various assignments of error, prevent a review of them in the Supreme Court.
    2. Criminal Law — Possession op Burglar’s Tools — Statutes.
    Under the terms of 8 Comp. Laws, § 11589, prohibiting any person from having in his possession burglars’ tools, it is necessary to show that the respondent knew he had such tools in his possession, that he knew the purpose to which they were adapted, and that he intended to use them for such purpose.

      3. Same — Guilty Knowledge.
    An admission of respondent that he was taking the tools to a certain place sufficiently indicated his knowledge of their being in his possession.
    4. Same — Intent.
    Evidence that skeleton keys of peculiar design were found in the possession of respondent, that they are in use to pick locks and open doors, that the defendant had been a burglar and sneak thief by occupation for years, was competent and tended to show a criminal intent, and presented a question of fact thereupon.
    Error to Hillsdale; Chester, J.
    Submitted April 21, 1910.
    (Docket No. 137.)
    Decided June 6, 1910.
    George Jefferson was convicted of having skeleton keys in his possession, and sentenced to imprisonment for not less than five nor more than ten years in the State prison at Jackson.
    Affirmed.

      Frank M. Hall, for appellant.

      John F. Bird, Attorney General, and Paul W. Chase, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant has appealed from a conviction, based on section 11589, 3 Comp. Laws, which provides that:

“Every person who shall knowingly have in his possession, any engine, machine, tool or implement, adapted and designed for cutting through, forcing or breaking open any building, room, vault, safe or other depository, in order to steal therefrom any money or other property, knowing the same to be adapted and designed for the purpose aforesaid, with intent to use or employ the same, for the purpose aforesaid, shall be, on conviction thereof, punished by imprisonment in the State prison not more than ten years, or by imprisonment in the county jail not more than one year, or a fine not exceeding one thousand dollars, or both such fine and imprisonment, at the discretion of the court.”

Numerous errors were assigned, most of which will be disregarded, for two reasons, viz.:

(1) Noncompliance with Sup. Ct. Rule 40, which requires that the brief of appellant “shall contain a clear and concise statement of the * * * errors upon which he relies.”

(2) Failure to discuss questions raised by the various assignments.

In view of the fact that the case is a criminal one, we overlook the omission of these requirements so far as to examine the case upon the more important question, which seems to be whether there was evidence tending to prove the guilty knowledge and intent required by the terms of the statute, viz.:

(1) Knowledge of possession of implements.

(2) Knowledge of their adaptation to and design for the criminal purpose.

(3) Intent to use them for such purpose.

The implements in question were produced and shown to have been found on the defendant’s person when he was arrested. They were skeleton keys, and we append a drawing of them.

A witness testified that defendant told him that he was taking them to Battle Creek. This indicated the first essential; i. e., knowledge of possession.

There was testimony that tended to show that such instruments are used by burglars, and that they are used for picking locks and opening doors; that the defendant was a burglar and sneak thief by occupation, and had been for years; that he called at the jail on an inmate; that he claimed to be in haste to leave town, and gave different places as his destination. If the jury believed defendant to be engaged in the occupation of burglary and thieving, it was a natural inference that he knew that the implements were adapted to and designed for use in burglaries, and that his intention was to thus use them. This testimony was competent, and the questions discussed were all questions which were for the jury. People v. Howard, 73 Mich. 10 (40 N. W. 789); People v. Edwards, 93 Mich. 636 (53 N. W. 778); People v. Jones, 124 Mich. 179 (82 N. W. 806).

The judgment is affirmed.

Ostrander, Moore, Blair, and Stone, JJ., concurred.


text:
    PEOPLE v. SETUNSKY.
    1. Constitutional Law — Fish Laws — Class Legislation.
    Act No. 153, Pub. Acts 1907, licensing the use of power boats for commercial fishing and providing for their registration, is not class legislation, since it grants all citizens equal rights to fish in accordance with its regulations, and binds all by its restrictions.
    2. Same — Legislative Authority.
    The legislature has power to regulate the taking of fish and game in the waters of the State, as to time, place, and manner.

    3. Same — Nonresidents.
    The State may exclude nonresidents from fishing privileges in its waters.
    4. Same.
    The regulation of taking game and fish within the State is not an interference with interstate commerce.
    5. Same — Statutes—Construction.
    The statute regulates fishing, not merely the use of boats.

      Exceptions before judgment from Menominee; Cooper, J., presiding.
    Submitted April 22, 1910.
    (Docket No. 142.)
    Decided June 6, 1910.
    Louis Setunsky was convicted of illegal fishing.
    Affirmed.

      George Barstow, for appellant.

      John E. Bird, Attorney General, and George 8. Law, Assistant Attorney General, for the people.

       As to public regulation of right to fish, see note to People v. Truckee Lumber Co. (Cal.), 39 L. R. A. 581.

   Hooker, J.

Defendant was convicted on his plea of guilty of a violation of the fish law, and appealed to the circuit court. He was permitted to withdraw his plea of guilty, and interpose the plea of not guilty, and the trial proceeded as follows:

“And to maintain and prove the issue on their part, the people of the State of Michigan offered in evidence a certain stipulation which was received in evidence, and a copy of which is as follows:
“ ‘State of Michigan.
“ ‘ The Circuit Court for the County of Menominee.
“‘The People of the State of Michigan,
v.
“ ‘Louis Setunsky, Defendant.
“ ‘ Stipulation.
“ ‘It is hereby stipulated and agreed by and between Michael J. Doyle, prosecuting attorney in and for the county of Menominee, and George Barstow, attorney for the defendant, and the said defendant; that the defendant, Louis Setunsky, on the 15th day of June, 1909, was engaged in commercial pound net fishing on waters bordering on this State, and for the purpose of catching fish to be offered for sale without having procured the license required by Act No. 153 of the Public Acts of Michigan of the year 1907; that the said Louis Setunsky at the aforesaid time in Menominee county was using a boat propelled by a gasoline engine, and a fishing outfit purchased and used for two years before the passage of aforesaid act; and that the manner of catching fish in pound nets or the amount that may be caught in said nets is not affected nor regulated by the fact as to whether a sail or gasoline boat is used in operating said nets.
“ ‘Michael J. Doyle,
‘‘ ‘ Prosecuting Attorney in and for Menominee County, Mich.
“ ‘ George Barstow,
“ ‘ Attorney for Defendant.
“ ‘Louis Setunsky,
“ ‘ Defendant.
“‘DatedNov. 30th, 1909.
“ ‘ The right to a trial by jury in above cause is hereby expressly waived in open court.
“‘Louis Setunsky,
“‘Defendant.’
“Whereupon, the issue so joined as.aforesaid was submitted to the said court for decision; and thereupon the said court found the respondent guilty as alleged in complaint and warrant in this cause, to which finding the respondent then and there duly excepted and presented to the court the following reasons of exception to said finding: To wit, because Act No. 153 of the Public Acts of Michigan of the year 1907, of which the respondent was found guilty of violating, is unconstitutional and void upon the following grounds:
“ (1) Because it is class legislation, conferring a special privilege and benefit on that class of commercial fishermen who are the ow'ners and users of sailboats as against that class of commercial fishermen who are the owners and users of gasoline boats. And in no wise a charge by the State in accordance with the manner of catching fish, the place where taken, or the amount that may be caught.
“ (2) Because it imposes a license and tax on boats contrary to the provisions of the Ordinance of 1787 and not within the police powers of the State.”

The case is before us on exceptions before sentence. The act, for the violation of which the defendant stands convicted, is No. 153, Pub. Acts 1907, and we quote a synopsis of it from his brief:

“ The act is one entitled ‘An act to regulate and license fishing with tugs* launches, or boats, in the waters bordering on this State.’
“ The first section reads:
“ ‘ Section 1. It shall be unlawful to use for the purpose of commercial fishing, or for the purpose of catching fish to be offered for sale, in any of the waters bordering on this State, any kind of a boat, tug or launch, except rowboat, without such boat, tug or launch shall be registered in the office of the State game and fish warden, and a license issued therefor.’
“ Section 2 provides the manner of making application for license and to whom to be made.
“Section 3 reads:
‘ ‘ Seo. 3. It shall be the duty of the State game and fish warden, when application is made by any person, firm, company, copartnership, partnership association or corporation, to issue licenses provided for in this act upon payment by the applicant, if a resident of this State, of the following fees: For each steam tug, steamboat or steam launch, without a steam lifter, ten dollars per year; for each steam tug, steamboat or steam launch or other boat with a steam lifter, twenty-five dollars per year; for any other boat, launch or tug propelled with any other power, except rowboats and sailboats, ten dollars a year each; for each sailboat, one dollar per year: Provided, That nonresidents of this State shall pay the following fees: For each steam tug, steamboat or steam launch, without a steam lifter, one hundred dollars a year; for each steam tug, steamboat, steam launch, or other boat with a steam lifter, two hundred dollars a year; for any other boat, launch or tug propelled with any other power, except rowboats and sailboats, fifty dollars a year each; for each sailboat, two dollars per year: Provided further, That for the purposes of this act, any firm, company, copartnership, partnership association or corporation, in which less than fifty-one per cent, of their stock is actually owned by residents of this State, shall be considered nonresidents.’
“ Section 4 provides what the license shall set forth.
“ Section 5 reads:
‘ ‘ ‘ Seo. 5. All boat licenses shall expire on the first day of April following their issue. The State game and fish warden shall keep a record of all applications and licenses. On the first day of each month, the State game and fish warden shall pay over to the State treasurer all moneys received by him under the provisions of this act, and said moneys shall be credited to the State game and fish warden’s fund and be disbursed in accordance with the law for the enforcement of the statutes regulating and protecting the commercial fishing interests.’
“Section 6 provides that this act shall not be deemed as authorizing the use of illegal nets, etc.
“ Section 7 provides penalty for violation.
“ It was stipulated on the part of the people as follows:
' That the manner of catching fish in pound nets or the amount that may be caught in said nets is not affected nor regulated by the fact as to whether a sail or gasoline boat is used in operating said nets.’

The errors are based on the claim:

“ (1) Because it is class legislation, conferring a special privilege and benefit on that class of commercial fishermen who are the owners and users of sailboats as against that class of commercial fishermen who are the owners and users of gasoline boats. And in no wise a charge by the State in accordance with the manner of catching fish, the place where taken, or the amount that may be caught.
“ (2) Because it imposes a license and tax on boats contrary to the provisions of the Ordinance of 1787 and not within the police powers of the State.”

Class Legislation. This cannot be held to be class legislation, for the reason that all citizens of this State have equal rights to fish in accordance with the rule prescribed, and all are bound by its restrictions. People v. Smith, 108 Mich. 527 (66 N. W. 382, 32 L. R. A. 853, 62 Am. St. Rep. 715); O’Connell v. Lumber Co., 113 Mich. 124 (71 N. W. 449); People v. Japinga, 115 Mich. 222 (73 N. W. 111); U. S. Heater Co. v. Iron Molders Union, 129 Mich. 354 (88 N. W. 889); People v. De Blaay, 137 Mich. 402 (100 N. W. 598); Beadle v. Arnott, 145 Mich. 416 (108 N. W. 646); Maclam v. City of Marquette, 148 Mich. 480 (111 N. W. 1079). The doubt expressed in Stuart v. Greanyea, 154 Mich. 134 (117 N. W. 655), may well have been based on the exclusion of all citizens from certain public waters, except the owner of adjacent land — thereby conferring special privileges upon a small class. It is not claimed, however, that this expression of doubt was even a dictum.

That the legislature has power to regulate the taking of fish and game within the confines of the State, and the waters that it owns, is unquestionable, not only as to time and place, but as to method. It is upheld by the decisions of the Federal and State courts generally, and has been so held in this State. The following authorities are cited in the brief of the attorney general: Geer v. Connecticut, 161 U. S. 519 (16 Sup. C.t. 600); State v. Corson, 67 N. J. Law 178 (50 Atl. 780); Commonwealth v. Hilton, 174 Mass. 29 (54 N. E. 362, 45 L. R. A. 475); State v. Gallop, 126 N. C. 979, 983 (35 S. E. 180); Morgan v. Commonwealth, 98 Va. 812 (35 S. E. 448); 19 Cyc. pp. 1006, 1012, 1019; People v. Collison, 85 Mich. 105 (48 N. W. 292); People v. Horling, 137 Mich. 406, 414 (100 N. W. 691). It goes without saying that it has no authority over the waters of other States, and this law has no application to such. The game laws are in point. It is common knowledge that legislatures elsewhere as well as in this State prescribe closed seasons for shooting as well as fishing, and limit the quantity that a person may kill or catch, enforce licenses, and impose penalties for infractions of the laws. Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982); People v. Kirsch, 67 Mich. 539 (35 N. W. 157); People v. Dornbos, 127 Mich. 136 (86 N. W. 529); People v. Lassen, 142 Mich. 597 (106 N. W. 143); In re Yell, 107 Mich. 228 (65 N. W. 97).

The right of the State to exclude nonresidents altogether from fishing privileges in its waters is recognized by the following cases: McCready v. Virginia, 94 U. S. 395; Geer v. Connecticut, 161 U. S. 519 (16 Sup. Ct. 600); Blake v. McClung, 172 U. S. 239 (19 Sup. Ct. 165).

We have held that the regulation of the taking of game and fish within our territory is not an interference with interstate commerce. People v. O'Neil, 110 Mich. 324 (68 N. W. 227, 33 L. R. A. 696); People v. Lassen, supra. See, also, State v. Corson and Geer v. Connecticut, supra.

It is urged that this act is a regulation of the use of boats and not a regulation of fishing. We cannot accede to this contention. It is only when boats are used in the fishing that a discrimination is made between them, and it was doubtless based on facility of operation and increased capacity, which bear directly upon the amount of work done and fish likely to be caught. Counsel say that it is possible to take as many fish in a rowboat as in a sailing vessel or steamer. This.position is hardly tenable; certainly it is not true in practice, as a general rule. We find no error, and the conviction is affirmed.

Ostrander, Moore, Blair, and Stone, JJ., concurred.