author: Graves, J.

text:
    Jonathan D. Fosdick v. Caleb Van Husan.

      Equity pleading and evidence: Allegata et probata. A defendant to a bill to redeem a mortgage will not be allowed, to increase the amount due upon it by proving an agreement to pay a higher rate of interest than the mortgage called for, when neither the bill nor answer made any reference to any such-agreement.

      Compounding of interest: Act of 1869. When a tender of more than was due upon a mortgage was made and refused, and the mortgagor filed a bill to redeem, before the act of 1S69, providing for the compounding of interest upon written contracts {Laws of 1869, p. 12), took effect, the mortgagee will not be allowed, in a computation of the amount due, to compound the interest, there being no agreement, express or implied, authorizing him to do so.

      Tender. A tender in United States “ legal tender ” notes, — theré being no objection at the time that they were not regarded as money, — is good.

      Bill to redeejn: Decree. On a hill filed to redeem a mortgage, in a case where a controversy exists as to the amount due upon it, — the mortgagee h.avipg proceeded to foreclose hy advertisement and sale under the statute, and the Court allows the redemption, — the proper decree is, that unless the redejnption money is paid within a specified time, the premises he sold as in foreclosure caeos; anil not that the title shall be absolute m the mortgagee.

      Heard October 13.

      Decided October 18.

    Appeal in Chancery from Washtenaw Circuit.
    The bill in this cause was filed by Jonathan D. Fosdick, in the Circuit Court for the County of Washtenaw in Chancery, on the first day of July, 1869, against Caleb Yan Husan, to redeem, after a foreclosure by advertisement and sale, a mortgage made by complainant to defendant, May 13, 1846. The foreclosure sale was made June 12, 1869. The bill alleges that the sale was made for the sum of nine hundred and eleven dollars and fifty-four cents, including costs of sale, but that there was then’ due upon the mortgage only the sum of one hundred and fifty-five dollars, and forty dollars costs of suit; and that, on June 10, 1869, defendant tendered, as the balance due on the mortgage, three hundred and ten dollars, and forty dollars as costs of suit.
    The answer alleges that the amount for which said sale was made, was the true amount due on said mortgage; and it admits an offer to pay three hundred and fifty dollars, but denies that all that was due was offered, and denies that any legal tender of proper money and of sufficient amount was ever made.
    A replication was filed and the cause was heard on pleadings and proofs.
    Among the proofs in the cause was an endorsement upon the mortgage, signed by the complainant, in the following words: “I hereby agree to pay ten per cent, interest on balance due from this date, October 24, 1855.”
    The Court below rendered a decree in favor of complainant, permitting him to redeem within fifty days on the payment of the sum of two hundred, and thirty-three dollars and seventy cents, and the sum of thirty-one dollars and fifty-four cents costs on foreclosure sale, less the taxed costs in this cause. But in default of such payment, it was further decreed “ that the right of redemption of said mortgaged premises by said complainant be barred and the mortgage title of said defendant therein shall become absolute.”
    The defendant appeals to this Court.

      Thomas Ninde and H. J. Beakes, for complainant.
    The so-called agreement to pay ten per cent, interest from October 24, 1855, endorsed on the two thousand eight hundred and fifty dollar mortgage, is void, for uncertainty and want of consideration. 1. If the agreement endorsed on the mortgage were not yoid for uncertainty and want of consideration, it 'was a mere personal contract which did not affect the lien of the mortgage, and is therefore immaterial in this suit. 2. And the complainant also submits that § 1311 Comp. Laws, requires that an agreement to pay more than seven per cent, interest must be in writing; and therefore any verbal agreement to pay ten per cent., if made, would be invalid. 3. The defendant cannot avail himself of this so-called agreement endorsed on the mortgage, because, he has not set it up in his answer.—Hubbard v. Winsor, 15 Mich., 146; Moran v. Palmer, 13 Mich., 368; Peckham v. Buffam, 11 Mich., 529; Warner v. Whittaker, 6 Mich., 133. 4. It is' doubted whether it is proper matter of defense by answer.
    Defendant is not entitled to compound interest.—Van Husan v. Kanouse, 13 Mich., 303.

    The tender made June 10, 1869, discharged the lien of the mortgage.—Caruthers v. Humphrey, 12 Mich., 270; Van Husan v. Kanouse, 13 Mich., 303. No objection was made as to the, hind of money.—Moynahan v. Moore, 9 Mich., 11.

      Joslin & Blodget and W. A. Moore, for defendant.
    The defendant • claims interest by virtue of agreement endorsed on the mortgage, but which complainant alleges was void for want of consideration. It is admitted that the endorsement was made by complainant. It is admitted that the whole mortgage was then due and payable, and that no payment was made thereon thereafter 'until J une 23, 1860. It is true no consideration for such agreement is expressed, and none expressly- proven, but we submit that this Court, under the circumstances, will infer the forbearance to foreclose, the consideration, a. Foi’bearance is a sufficient consideration.—Story on Cont., Sec. 435; 1 Parsons on Cont., p. 442. b. The consideration need not be expressed, nor always alleged and proven. It may be inferred from the terms and obvious import of the contract.—Nelson v. Gordon, 2 N. H., 414, 415; Bainbridge v. Wade, 1 E. L. & E., 236, 39, 40; Newberry v. Armstrong, 6 Bing., 201, 202; Patchin v. Swift, 21 Ver., 292, 297, 298; Boyd v. Frieze 5 Gray, 553, 54; Wheeler v. Slocumb, 16 Peters, 52, 55; Walker v. Sherman, 11 Met., 172.

    The statute of the State of Michigan of 1869, p. 12, now permits the compounding of interest, and, from its language, may be applied to the mortgage in question.
    No sufficient tender was made. The alleged tender, if made, was in legal tender Treasury notes, which was not a legal tender on this contract. Treasury notes were then at 35 per cent, discount.—Hepburn v. Griswold, 8 Wal., 603.

   Graves, J.

The object of this bill was to redeem certain premises from a mortgage executed by complainant to defendant on the thirteenth day of May, 1816, to secure the payment of $2,050, with annual interest, and made payable, principal and interest, by installments in a little over seven years.

The complainant sets forth in his bill certain payments claimed by him to have been made on the mortgage, and which, he alleges, reduced the incumbrance to $155 on the twelfth day of June, 1869. But that the defendant insisting that a much larger sum remained unpaid upon the mortgage than was in fact the case, commenced proceedings to foreclose, under the statute, on the eleventh day of March, 1869, and by his notice, of sale for the twelfth of the following June, claimed to be due and unpaid the sum of $859; that on the tenth day of June, 1869, while the proceedings to foreclose were in progress, the complainant tendered to defendant $350 in lawful money of the United States for the payment of the sum remaining back upon the mortgage and costs of foreclosure, and presented a certificate of discharge of the mortgage and requested defendant to execute and acknowledge it; that the sum so tendered was greater than the amount then called for by the mortgage, with the costs of foreclosure added; that defendant refused the tender and refused to discharge the mortgage, and claimed that over $800 remained unpaid; that on the twelfth day of Juné, 1869, the defendant caused the premises to be sold under the foreclosure notice, and bid the same off at $911 54, and procured the Deputy Sheriff to make him a deed and endorse and deposit the same as directed by statute. Complainant offers to pay any sum found to be due and unpaid on the mortgage.

The answer admits the foreclosure proceedings and sale as stated in the bill, and admits several of the payments alleged by complainant, but denies others and insists that there was due the sum of $900. It also admits that on the tenth day of June, 1869, “there was tendered to him the sum of three hundred and ten dollars, as and for the amount due on said mortgage, and forty dollars to pay the costs of said foreclosure,” and then proceeds to say that the defendant “denies that any discharge of said mortgage was presented to him with a request that he execute the same, and that he refused to receive any such sums of money or execute said discharge.”

The answer further admits the statements in the bill as to the foreclosure and sale. A general replication being filed, proofs were taken and the Court below made a decree declaring the sum due and unpaid on the mortgage, on the day of the sale under the statute foreclosure, for principal and interest, to be $233.70, and the costs of foreclosure, $31.54; and finding that complainant made a tender in due form of lay to defendant on the tenth day of June, 1869, being two days before sale, of $350 to pay the amount remaining on the mortgage and the costs of foreclosure, and thereupon adjudging that the foreclosure sale and deed were void; that the sale be set aside and the deed be delivered up to be .canceled; that within fifty days after the date of the decree, which was on the eighth day of June, 1870, the complainants should pay to the Rfegister for the use of defendant the sum adjudged to be due on the mortgage, together with the costs of the statute foreclosure, amounting to $265.24, with interest from the twelfth day of June, 1869, first deducting the costs of complainant in this cause, and that upon such payment the defendant should release to complainant the mortgaged premises free from encumbrance made or charged thereon by defendant or any person or persons claiming under him; and that defendant execute and deliver to complainant or to his solicitor a sufficient discharge of the mortgage; but that in default of such payment to'the Register the right of redemption by complainant should be barred and the mortgage title of defendant be absolute.

Upon the hearing in this Court, the evidence relating to the sums paid and the times of payment was fully and strongly debated, and the views of counsel as well as the facts have been attentively considered. All the circumstances, and as well the relations and position of the parties and the nature of the subject matter, as the inferences to be drawn, and the presumptions arising from the matters disclosed by the pleadings and evidence have been examined and weighed, and while we do not deem it needful to enter into a commentary upon this part of the case, we are constrained to say that we find nothing in it in derogation of the decree of the Circuit Court. On the contrary, that decree, so far as it depends upon the evidence respecting the sums j>aid upon the mortgage and the times of payment, appears to be supported.

It is urged, however, for the defendant, that a writing endorsed on the mortgage under date of October 24, 1855, and subscribed by complainant, entitled the defendant to interest at ten per cent, on the whole balance on the mortgage from that time. This writing reads as follows: “I hereby agree to pay ten per cent, interest on balance due from this date, October 24, 1855. J. D. Fosdick.”

A sufficient reply to this claim is found in the circumstance, that neither the making nor existence of this paper, nor of any arrangement supposed to be proved by it, is hinted at in the bill or answer.—Vandyke v. Davis, 2 Mich., 144; James v. M’Kernon, 6 J. R., 543; Beach v. Fulton Bank, 3 Wend., 573, 584; LeBaron v. Shepherd, decided at this term [supra p. 263], and cases there cited.

The arrangement in question was made, whatever its possible effect, long after the execution of the mortgage, and was a new and independent transaction intended to turn the interest behind into principal and to increase the rate, and to avail himself in this controversy of the rights supposed to accrue from it; the defendant should have set up the instrument, and claimed the benefit of it in his answer. As a party can only defend himself on the ground assumed in his answer, the defense based on the writing referred to must fail. — Oases last cited.

Again, it is contended by defendant, that, independently of this writing, he was entitled to compound the interest under the “ Act relating to interest upon installments falling due upon written contracts,” approved February 19, 1869.—Sess. L. 1869, p. 12.

We are not required to ascertain whether this statute may have a retrospective operation, and be made to apply to contracts entered into before it took effect, or gives the right in any case to compute interest upon installments of interest, falling due subsequent to that time upon contracts made before.

The session of 1869 closed on the 5th of April, and by force of the Constitution (§ 20, Art. If.,) the act in question did not become a law until the expiration of ninety days from the time last mentioned.

The defendant certainly had no right to compound the interest under the pre-existing law, in the absence of any agreement, express or implied, authorizing him to do so; and the statutory foreclosure having been commenced and carried to a sale, the tender and refusal hereafter mentioned having occurred, and the present bill having been filed, before the act referred to became a law, the transaction between the parties was so far closed as to authorize the complainant to- insist upon redemption by paying the amount called for by the mortgage according to the law which prevailed as to compounding interest up to the time of filing his bill. At that time the defendant treated the matter as closed. At that time, if ever, the complainant’s right of-action asserted by his bill had accrued, and at that time he was entitled to redeem, if at -all, on paying the arrearage upon the mortgage as it must have been ascertained by the rule then prescribed by law.

I am, therefore, of opinion that the defendant is not, in consequence of the act of 1869, entitled now to demand more upon his mortgage than he could recover under the law as it stood when the tender and sale occurred and the bill was .filed, either to defeat the present action or to raise new and onerous conditions upon complainant’s right to redeem.

The remaining objection made by defendant is that the alleged tender was invalid.

The answer admits the tender in fact, and the evidence not only shows it but proves the circumstances connected with it. The offer was in what are called legal tender notes, and it is now urged for defendant that these notes were not the medium in which a lawful tender could be made, and Hepburn v. Griswold, 8 Wad., 603, is cited as authority for the point.

The facts disclosed by the record exclude the point here suggested. The notes were tendered as money, and the answer and proof show that the defendant regarded them as money, and however the law may be as to the validity of the legal tender acts, the fact remains that these notes have for several years circulated and do now circulate in this state -as cash, and have been supposed to possess and are now supposed to possess all the qualities of a safe currency, which can be claimed for bank notes. They are not convertible into coin at the will of the holder; neither are bank notes. But this circumstance has not prevented the employment of either as money in the ordinary business transactions of the public or in the satisfaction of debts.

The defendant refused to receive the tender, but he did not place bis refusal on tbe ground now urged in bis behalf. His sole objection was that he was entitled to a much larger sum than $350 on the mortgage, and not that the notes tendered were not worth three hundred and fifty dollars. As he did not refuse to receive the notes on the ground that they were depreciated or even not lawful money (grounds which if taken might have been obviated, if thought necessary) but treated the offer as one of $350 in fact, and placed his refusal upon a ground having no relation to the form of the tender or the character of the medium, we think he is precluded from raising the objection now urged.—Moynahan v. Moore, 9 Mich., 9; Wright v. Reed, 3 Tenn. R., 554; 2 Parsons on Cont., 645, and cases cited.

We have now considered the questions discussed on the hearing, and we think the decision of the Court below has not been impeached.

It will, however, be necessary to modify somewhat the decree of that Court. By that decree, as is seen, the redemption money was required to be paid in fifty days. That time has now passed and the complainant should have fifty days from the time of judgment in this Court, within which to make such payment.

The decree must be further modified by requiring a sale as in ordinary cases of foreclosure in case complainant fail to pay the redemption moneys within the time prescribed, and that defendant recover costs in that event.

In all other respects the decree below should be affirmed, and the complainant will recover of the defendant his costs of this- Court, unless he fail to pay the redemption money as above provided, and the case will be remitted to the Court below for such further proceedings as may be necessary.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell, Ch. J.

license: Public Domain

text:
    The People ex rel. The Glens Falls Insurance Co. v. The Judge of the Jackson Circuit Court.

      Foreign corporations: Comity: Waiver: Act Ho. ISO, of 1869, relative to insurance companies. When a foreign corporation submits itself to tbe exclusivo jurisdiction of the courts of this State, as a condition of doing business here, it waives any right it may possess, as a quasi citizen of another State, to remove to the courts of the United States an action commenced in the courts of this State upon a canse of action accruing here.

      Mandamus: Transfer of causes from the State to the United States ■Courts. A mandamus from the State Supreme Court to compel an inferior State court to remove a cause to the United States Circuit Court upon the application of a defendant, who is a citizen of another State, is not the appropriate writ for that purpose; and whether it has any jurisdiction to interfere in such cases,— Quaere?

      heard and decided October 21.

    Application for mandamus:

    By the Glens Falls Insurance Company, a corporation organized under the laws of the State of New York, to compel the Judge of the Circuit Court for the county of Jackson to remove a cause pending in that Court, in which the relator was defendant and William Jackson plaintiff, to the Circuit Court of the United States. The action was brought upon a policy of insurance issued in this state by a duly authorized agent of the company, and was commenced by service of process upon an agent of the company duly authorized under the provisions of Section 23 of the Laws of 1869 (p. 243) to receive such service. The defendant moved in the Jackson Circuit Court for an order removing the cause, under the provisions of the judiciary acts of the United States; and the motion being denied, the company now comes into this Court and asks for a mandamus to the Judge of the Jackson Circuit Court to compel the granting of the order.

      A. Russell, for relator, cited:
    1. To the appropriateness of the remedy by mandamus:—State ex rel. Tod v. Fairfield Com. Pleas, 15 Ohio State, 377; Hopper v. Kalkman, 17 Cal., 517; Brown v. Crippin, 4 Hen. & Mumf., 173.

      2. To the point that the writ should not be applied' for in the U. S. Circuit:—Sec. 14 U. S. Jud. Act, 1789; Ladd v. Tudor, 3 W. & M., 325; Star Ins. Co. Case, 2 Law Rev., 183; Fisk v. R. R., 6 Blatchf., 362.

      8. As to practice: — State Court should order removal.—Conkl. Treat., 3d ed., p. 482.

   Campbell, Ch. J.

This is an. application for an order on the Circuit Judge sitting in Jackson County to show cause why a mandamus should not issue to direct him to remove a cause to the United States Circuit Court, the relator being defendant and a corporation, under the laws of New York, and the plaintiff being a citizen of Michigan. We desired the counsel for the relator to argue the motion, as we had doubts of the propriety of calling upon the Circuit Judge to respond to such an order, and we have been furnished with tbe citation of such cases as could be found.

It is alleged, and must on this motion be assumed, that the Circuit Judge took no exception to the security offered, and only denied the application on the ground that the relator had become bound, by the conditions on which it assumed to do business in Michigan, to submit to the jurisdiction of the state courts. The only questions, therefore, are whether the relator has.incurred any such obligation, and whether a mandamus should be granted by this Court as the proper remedy in case the removal is within the acts of Congress. We think that on both grounds the application should be denied.

We think the validity of the statute providing for the removal of cases to the United States Circuit Courts is undoubted. And we held in Yawkey v. Richardson, 9 Mich. R., 529, that in eases to which it applied, the removal was a matter of right and not within the discretion of the state courts. If this were the case of a citizen of another state, having the full rights of an individual, and subject to no disabilities, we should have no doubt of the incorrectness of the decision below, however much we might doubt our authority to interfere in this way to correct it.

But while for some purposes a foreign corporation is allowed to be regarded as a citizen of the state incorporating it, and while in the absence of any reason to the contrary it is so regarded under the United States judiciary acts for the purposes of suit, yet any privilege which that relationship might bestow - on it may be waived like any other right, and the party may be estopped from setting it up. If the Constitution of the United States gave exclusive jurisdiction of suits between citizens of different states to the courts of the United States, then, of course, the state courts could get no jurisdiction by waiver or express consent. But when they have original jurisdiction, and there only exists a right to remove the cause, we see no reason why a. party may not become bound by covenant or estoppel to waive his privilege beforehand, as completely as he would lose it by delaying his petition too long. The principle is the same in the one case as in the other.

It was decided in Bank of Augusta v. Earle, 13 Peters R., 519, that a corporation created by one state had no power to do any corporate act in another state unless by the express or implied assent of the latter. And it was held accordingly in Paul v. Commonwealth of Virginia, 8 Wal. R., 168, that such assent might be conditional. The Court use the following language: “Haying no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.”

The state of Michigan has seen fit to enact that no foreign insurance company shall transact business in this state without first appointing an agent or attorney in this 'state “on whom process of law can be served, which process shall issue from the courts of this state, and such courts shall have exclusive jurisdiction of all cases arising under this act.” (L. 1869, p. 2j8).

This language is free from ambiguity. Submitting themselves to the exclusive jurisdiction of our courts is one of the conditions of their corporate action in Michigan. As they could not act at all without the consent of the state, they must conform to these conditions, and must be regarded as waiving all privileges inconsistent with them. Their powers exercised here are the same as if they were incorporated by our laws, and they become to that extent Michigan and not New York corporations for all practical purposes in this state. They have appointed their agent under this statute and subject to all its requirements.

The Circuit Court, therefore, could not properly compel a party who had sued them, when they have covenanted he might sue them, to go into another jurisdiction.

We are also unable to discover any propriety in resorting to the writ of mandamus of this Court to correct the action of a Circuit Court in a case, under the act of Congress. If any coercive action should be deemed necessary to transfer proceedings into the courts of the United States, it should naturally come from United States authority; and if the result cannot be reached without the intervention of some writ, we find it difficult to believe that the remedy can be dependent on the discretion of a state court. In all cases where writs are expressly mentioned for purposes of removing cases into United States courts, they issue returnable there. There is no writ of certiorari or mandamus known to the common law issuing from one jurisdiction to courts within it for the removal of causes into another jurisdiction. Certiorari is the proper writ for removing records from one court into another for trial, and is the writ expressly authorized to be issued by United States courts, for removing thither certain cases from state courts under the act of 1833.—4 U. S. Stat., 633. But whether certiorari or mandamus would be appropriate for this purpose, it is certainly more seemly that they should not depend on the( discretion of any tribunal not holding its commission from the authority creating the right of removal. The United States Supreme Court has never, that we can find, decided expressly, upon a case arising under the statute in question, that the Circuit Courts of the United States may issue the proper writ, if any is required, but the principle has been asserted distinctly that a summary remedy exists, and, if, so, there can be no special difficulty in ascertaining it .—Gordon v. Longest, 16 Pet. R., 97. And we thinlc the yiew taken by the Supreme Court of New York in the case of The People v. the Judges of the N. Y. Common Pleas (2 Denio, 197), refusing a mandamus, is in accordance with good, sense. We should feel disposed to go as far as possible to prevent a failure of any right, but we do not perceive any such necessity in these cases.

It is questionable, under the statute, whether any affirmative action is contemplated or required of the state court, from which a cause is removed, which could render any mandate necessary in any case. The party filing the petition gives security that he will enter copies of the proceedings in the United States court, and, thereupon, it is made the duty of the state court “to proceed no further in the cause.”. But there is nothing indicated by the statute as necessary to be done by the court to complete the removal. The original record is not to be removed from the state court. It is only to ,.abstain from further action. The moving party himself files the necessary papers, which are copies, and not originals, and if the clerk will not give him certified copies he may file'sworn copies, under the statute of 1833.—4 Stat. U. S.,. 633. That statute provides a very simple method of obviating any refusal of the clerk, and we do not perceive that the court has any important functions in the matter, or that its order can prevent the filing of the needful copies. In Ableman v. Booth, 21 How. R., 506, where no return was made to a-writ of error, the defect was supplied by sworn copies; and if the statutes concerning the removal of causes do not make the removal dependent on the action of the state court, there can be no possible necessity for mandamus, and any subsequent procedure in the cause, if unlawful, must be reached in another way.

Without deciding whether or not this Court has any jurisdiction to interfere in such a case as is presented to us, we think the relator is precluded from asking it, and that the remedy sought is not appropriate.

The other Justices concurred.


author: Clark, J.

text:
    BILLINGS v. MARSHALL FURNACE CO.
    1. Wills — Construction—Jurisdiction or Court.
    On a bill by the executors and trustees of the estate of decedent for a construction of the will, the court has jurisdiction to construe the same.
    2. Corporations — Estates or Decedents — Representatives, Right to Vote — Stock and Stockholders.
    Representatives of a deceased person have the right to vote with respect to stock standing on the corporate books in the name of .the testator.
    S. Wills — Construction—Right to Perpetuate Control or Corporation — Public Policy.
    An attempt, by a testator, to create and direct a testamentary voting trust for a fixed period of irrevocability and to exclude for a fixed period his representatives from the exercise of their personal judgment as to the management of the affairs of a corporation in which he held a controlling interest, and to perpetuate certain persons in office and control of the company without regard to the rights of minority stockholders is contrary to public policy and void.
    On validity of agreement to control the voting power of corporate stock, see notes in 16 L. R. A. (N. S.) 1136 and 31 L. R. A. (N. S.) 1186.
    Appeal from Calhoun; North (Walter H.), J.
    Submitted March 15, 1920.
    (Docket No. 112.)
    Decided April 10, 1920.
    Bill by Charles H. Billings and another, executors of the last will of Samuel F. Dobbins, deceased, against the Marshall Furnace Company, Charles W. Dobbins and others, for a construction of said will. From a decree for plaintiffs, defendant Dobbins appeals.
    Affirmed.

      Burritt W. Hamilton, for plaintiffs.

      Joseph L. Hooper, for defendant appellant.

      James W. Mackey, for other defendants.
   Clark, J.

From a decree construing the will of Samuel F. Dobbins, who died in 1917, this case is brought here by appeal of one of the defendants. The plaintiffs, named as executors and trustees in the will, were appointed executors by the probate court of the county of Calhoun and entered upon the discharge of their duties. The greater portion of the estate consists of 1,070 shares of the capital stock of the Marshall Furnace Company, a Michigan corporation organized under the provisions of Act No. 232 of the Public Acts of 1903 (2 Comp. Laws 1915, § 9017 et seq.). The par value of the 1,070 shares is $107,-000, which constitutes more than two-thirds of the total, $150,000, authorized capital stock of the company, all of which is issued and outstanding. The defendants are the above named corporation, Grace Dobbins, testator’s widow, devisee and legatee under the will, Dale M. Dobbins, Samuel F. Dobbins, Jr., and Charles W. Dobbins, testator’s sons, legatees under the will. The minority stockholders of the corporation were permitted to intervene as defendants. All of the defendants appeared and answered.

The particular language submitted for construction is the tenth paragraph of the will and is as follows:

“I hereby direct my said trustees to so vote upon the shares of stock of said Marshall Furnace Company belonging to said trust estate, that my two sons, Dale M. Dobbins and Charles W. Dobbins, and at least one of said trustees above mentioned, during the term of this trust, shall be, if possible, elected annually to serve as directors of said Marshall Furnace Company, and that the by-laws of said company during said trust period, remain as now fixed, providing for a board of five directors, qualified to serve, and who will serve, be elected in each year, and that, in the event of the death, disqualification or resignation or refusal to serve of any director, an active, competent successor for such director shall be immediately chosen, and that the directors, as such, shall receive no salary, and that my said trustees, so far as lies within their power through control of the membership of said board of directors, shall see to it that no person connected with said company shall receive any salary not reasonably proportionate to the value of the services by such person actually rendered in said company.”

A resolution to increase the capital stock of the corporation from $150,000 to $300,000 is before the stockholders. To adopt the resolution a vote of two-thirds in interest of the capital stock is required. A stockholder, at present the successful manager of the business to whom nearly all of the rights of subscription have been assigned, has offered to take the increase of 1,500 shares at $130 per share, a total of $195,000» The plaintiffs, nearly all of the defendants, and the trial court agree that it is advisable and necessary to iiicrease the capital stock of the company and that such action will be beneficial to the company and hence to the estate. The plaintiffs as executors have refrained from voting upon the resolution because of the paragraph of the will above stated, and for the reason that as a result of such increase, if authorized, the estate may become a minority stockholder and the executors and trustees therefore may be unable to comply with the quoted provisions of the will. The relief prayed is that the tenth paragraph of the will be held void and that the executors and trustees under the will be decreed to have full and free right to vote at any and all meetings of the stockholders and upon said resolution the shares of capital stock held by the estate.

The decree of the trial court in part:

“That the true construction and interpretation of said will is that the word ‘trustees’ when used in para-4 graph tenth of said will, refers equally to the executors named in said will and that the provisions of paragraph tenth apply with equal force to the executors and to the trustees named in said will, and to their successors in office; and
“That in so far as the provisions of paragraph tenth of said will attempt to create a testamentary voting trust, said provisions are void.
“That the voting instructions to executors and trustees set forth in paragraph tenth of said will whereby said testator attempted to determine the personnel of a majority of the board of said Marshall Furnace Company, and to prevent amendment of the by-laws thereof, for a period of ten years, are invalid and that said executors and trustees are not bound thereby.
“That said voting instructions were, under the terms of said will as construed by this court, to be carried out only in the event the same were found possible, and that observance of said voting instructions, although physically possible, is not legally possible, and that said executors and trustees are therefore under no obligation or legal requirement to observe the same.
“That there is nothing'in said will which in any way prevents said executors and trustees, plaintiffs herein, from co-operating in the plan of increasing the capital stock of said company and in making the proposed sale thereof in accordance with the plan submitted to this court * * * or in accordance with any other lawful plan.”

The court had jurisdiction to construe the will. Dean v. Mumford, 102 Mich. 510.

Representatives of the deceased have the right to vote with respect to stock standing on the corporate books in the name of the testator. See 10 Cyc. p. 334.

“It is clear that executors have power to vote the stock of their testator at all meetings, being the personal representatives of such decedents, and that until a settlement and division of the estate the stock of a decedent belongs to his personal representative. Similarly, corporate stock standing in the name of an administrator may be voted by. him, in electing directors, as against those holding a beneficiary interest therein. * * * In the case of shares in the hands of a trustee, if the trust is of such a nature that the trustee has the control and management of the property, and is to exercise his discretion concerning it, then he is the proper person to represent and vote upon it. And the corporation cannot be required to examine into the nature of the trust, with a view to decide as to the right to vote.” 7 R. C. L. p. 346.

See, also, Jones v. Green, 129 Mich. 203.

The tenth paragraph of the will, wherein the testator attempts, to create and direct a testamentary voting trust for a fixed period of irrevocability and to exclude for a fixed period his representatives from the exercise of their personal judgment as to the management of affairs of the corporation and to perpetuate certain persons in office and control of the company without regard to the rights of minority stockholders, is contrary to public policy and void. 7 R. C. L. p. 351; 14 C. J. p. 917; Morel v. Hoge, 16 L. R. A. (N. S.) 1136, note (130 Ga. 625, 61 S. E. 487).

The decree is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


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    CADILLAC THEATRE CO. v. FITZGERALD.
    1. Landlord and Tenant — Insurance — Right of- Approval by Lessor.
    Where, hy the terms of a lease, the lessors had the right of approval of the insurance carried on the buildings on said leased premises for their benefit, the premiums to be paid by the lessee, said approval was something more than a ministerial act, and involved the exercise of judgment and discretion.
    2. Same — Fraud—Right to Reject.
    Where there is no suggestion of fraud or other legal wrong, in the exercise of said right of approval, the lessors’ act in rejecting insurance tendered cannot be attacked.
    3. Same — Insurance—Liability of Lessee for Premiums Paid by Lessor.
    Where a subtenant, by the terms of his lease, agreed to insure leased premises in favor of his lessor and the lessors in the original lease, but failed to do so before the expiration of the policies then in force, he is liable, in an action therefor, for the amount of the premiums paid by said parties for insurance taken out for their own protection.
    4. Same — Pleading—Defenses.
    Where fraud'was not pleaded, the defense that the amount of insurance demanded by plaintiff was unreasonable, is not available.
    5. Same.
    Where defendant failed to act in securing the insurance, he could not complain because plaintiffs took out one year term insurance, thereby paying a higher rate than for a longer term.
    6. Appeal and Error — Objections not Raised in Trial Court.
    An objection by plaintiff that the defense of payment, release, or satisfaction is not open to defendant because not specially pleaded, where not raised in the trial court, cannot be raised in this court.

      7. Landlord and Tenant — Acceptance of Payment — Question for Jury.
    Where plaintiff accepted and cashed a check for the quarterly rent, from the amount of which defendant had deducted the amount of certain repairs, the question as to whether, by accepting said check, plaintiff acquiesced in defendant’s action, held, a question of fact for the jury.
    8. Same — Conditional Judgment.
    Said item will be remitted and the judgment affirmed; plaintiff’s counsel haying consented thereto, on the oral argument in this court, in case a question of fact should be found.
    Error to Wayne; Hosmer (George S.), J.
    Submitted January 27, 1920.
    (Docket No. 40.)
    Decided April 10, 1920.
    Assumpsit by the Cadillac Theatre Company against James A. Fitzgerald for premiums paid on insurance policies upon leased premises. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed, conditionally.

      Percy W. Grose, for appellant.

      James G. McHenry, for appellee.
   Clark, J.

William W. Lovett and Sarah E. Lovett were lessors in a lease in which the interest of the' lessees had been assigned to plaintiff, Cadillac Theatre Company. We quote a paragraph of the lease:

“Said second parties shall pay all premiums on insurance to the amount of $40,000 to be carried on said building in company or companies to be approved by said first parties, and the policies for said sum of $40,000 insurance shall be taken out in the names of said first parties, and shall be for their sole use and benefit”

—and the following from a later lease of same premises dated July 8, 1913, between plaintiff and defendant:

“And said second party further covenants to pay all premiums on insurance in companies and amount to be approved by said first party, to be carried on said building and equipment aforesaid situated on said premises, but the policies for the sum of $40,000 of such insurance shall be carried on said building in the names of Sarah E. Lovett of Detroit, Michigan, and William Watson Lovett of Los Angeles, California, for their sole use and benefit, in accordance with the terms, covenants, and conditions of the lease between said Lovetts and said first party. * * *
“And also the said second party has examined and knows the condition of said premises and has received the same in good order and repair, and hereby expressly agrees to take said building and equipment as they are now and in their present condition, and that said second party will at his own expense during the continuance of said term keep the said premises in as good repair, and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable wear and tear thereof and damage by the elements excepted.”

Defendant went into possession between the 10th and the 14th of July, 1913. At the time of making the lease defendant was informed by plaintiff that the $40,000 of fire insurance then in force in favor of William W. Lovett and Sarah E. Lovett would expire July 17, 1913. On August 5, 1913, defendant delivered to plaintiff a number of fire insurance policies aggregating $40,000 covering the property, which policies were forwarded by plaintiff to Mr. Lovett who later refused them. It is said that during the period from July 17th to. August 5th the property was covered by insurance provided by defendant in the form of a “binder” pending the issue of regular policies. Plaintiff had no notice of this insurance until it received the policies on August 5th. Defendant was notified that Mr. Lovett and plaintiff did not approve the insurance offered by defendant. On July 17, 1913, Mr. Lovett, having no notice or communication from parties hereto as to the renewal of the insurance then expiring, and having received for approval no insurance policies covering the property, caused the property to be reinsured for the term of one year in the sum of $40,000, the premiums on such insurance upon request being later paid by the plaintiff. Plaintiff on August 5, 1913, requested defendant to cause to be issued insurance to the amount of $50,000 covering the property, in the name of plaintiff, in companies to be approved by it, and this in addition to the $40,000 of insurance in favor of William W. Lovett and Sarah E. Lovett. Defendant declined the request and plaintiff thereupon insured the property in its name and paid the insurance premiums, which insurance was later canceled. Plaintiff had an insurable interest in the property leased. It had made valuable and extensive improvements. There was testimony that about the time defendant went into possession of the leased premises he received a notice from the board of health of the city to abate a nuisance on the premises, an accumulation of water in the building, and defendant caused the sewer to be repaired. The repairing was done August 21st-28th and September 2d and the expense bill was paid by defendant October 31,1913. On October 2,1913, defendant paid to plaintiff rent in full for the last quarter of 1913. On January 2, 1914, defendant gave to plaintiff a check for rent for the first quarter of 1914 less the sum of $286.43, being several small items and the cost of repairing the sewer. Of this deduction plaintiff upon trial conceded $43.30 but claimed the remainder of $243.13. In May, 1914, plaintiff commenced this suit to recover of the defendant the amount of insurance premiums paid by it for the insurance iq favor of William W. Lovett and Sarah E. Lovett, the cost of the insurance in its favor, the remainder claimed to be due upon rent for the first quarter of 1914, and other small undisputed items. Defendant pleaded the general issue. At the conclusion of the proofs upon plaintiff’s motion a verdict was directed in its favor for the full amount of the claim, $1,248.03, and interest $246.78, being $1,494.81.

Ought the defendant to pay the cost of the insurance provided by Mr. Lovett, and the cost of the insurance procured by plaintiff? The plaintiff had the right of approval of insurance both as to companies and amount. The Lovetts had the right to approve .companies writing the insurance in their favor. Approval in this case means something more than a ministerial act. It involves the exercise of judgment and discretion. Lane v. Insurance Co., 115 Am. St. Rep, 729 (142 N. C. 55, 54 S. E. 854). In the above case a policy of life insurance provided that delinquent members may be reinstated if approved by the medical director and the president, and as to their refusal to approve an application for reinstatement, the court said:

“Where there is no suggestion of fraud or other legal wrong, there can be no valid reason why the applicant should be permitted to attack the soundness of their judgment or the justness of their conclusions. We must hold it to be right, and unassailable in any such manner, because the,parties have solemnly agreed that the matter shall be clecided in that way.” * * *

In the refusal to approve the companies whose policies defendant offered, and in the request of plaintiff for insurance in its favor we find no evidence of fraud or other legal wrong. Richmond v. Kelsey, 225 Mass. 209 (114 N. E. 319) ; Hey v. Wyche, 12 L. J. Q. B. (N. S.) 83; Thomson-Houston Electric Co. v. Improvement Co., 23 N. Y. Supp. 900; Sunday Lake Iron Co. v. Township of Wakefield, 186 Mich. 626. Defendant sought to show that the amount of insurance demanded by plaintiff was excessive. There was abundant testimony that it was reasonable. As to that the trial court correctly said:

“As suggested by counsel, and I think it is true, that the pleadings in this case are not apposite for the introduction of such a defense. There is no suggestion of fraud in the matter of the pleadings, and I do not think that unless the parties, the Cadillac Theatre Company, were charged with fraud in such a matter, that such a defense might be introduced, and therefore I charge you that the defendants also became liable for the amount which was paid by the Cadillac Theatre Company for the protection of their own interests.”

As the parties have construed this lease we are not obliged to determine whether the covenants were fulfilled by insurance procured in the name of plaintiff. Sherwood v. Harral, 39 Conn. 333. Defendant’s failure to submit to the Lovetts on or before July 17th policies of insurance for approval, and his refusal to procure insurance requested by plaintiff, gave plaintiff and the Lovetts under the facts of this case the right to provide the insurance.

“The lessor may also recover damages for the lessee’s breach of his covenant to insure, and if the lessor himself takes out the insurance lie may recover from the lessee the amount of the premiums paid.” 18 Am. & Eng. Enc. Law (2d Ed.), p. 656.

See, also, Richmond v. Kelsey, supra.

Defendant complains that Mr. Lovett bought insurance policies having a one-year term and that had insurance been bought for a longer term a better rate would have been had. If defendant desired policies of a different term he should have acted promptly.

The right of plaintiff to have the item of $243.13 ($286.43 less conceded items). Defendant informed plaintiff that the check of $5,338.57 was offered in payment of rent, $5,625, for first quarter of 1914, and that the expense bill, $286.43, for repairing the sewer, etc., liability for which defendant disputed, had been deducted. Plaintiff accepted and cashed the check. We think the record discloses a question of fact for the jury as to whether the check was received by plaintiff in payment of the quarterly rent. Tanner v. Merrill, 108 Mich. 58 (31 L. R. A. 171); Widner v. Telegraph Co., 51 Mich. 291; note 11 L. R. A. (N. S.) 1018; 1 R. C. L. p. 183; note 20 L. R. A. 785; Hoey v. Ross, 189 Mich. 193.

Plaintiff asserts that, there being no notice added to defendant’s plea setting forth the defense of payment, release or satisfaction, such defense is not open to defendant. Circuit Court Rule No. 23. To evidence of defendant upon this question such objection was not made in the trial court and therefore cannot be raised here. Upon oral argument here counsel for plaintiff stated that if, as to the item under consideration, a question of fact should be found, plaintiff would remit from the judgment the amount of the item with' interest rather than have the judgment reversed. Accordingly the item with interest amounting to $291.02 is remitted and the judgment in the sum of $1,203.79 is affirmed. Defendant will recover costs of this court.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred..


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    WEBSTER v. STEWART.
    1. Trial — Voir Dire Examination — Peremptory Challenges— Waiver.
    In an action against the owner of an automobile for personal injuries received by plaintiff while riding therein, where a juror, on his voir dire examination, after he had stated that he owned an automobile, was asked if he was a member of the Citizens’ Mutual Automobile Co., and his answer taken over defendant’s objection, and defendant’s counsel afterward, on direct examination, went into the insurance matter at length, the inquiry complained of was apparently made in good faith, and the record does not disclose that defendant exercised any of his peremptory challenges or preferred any request to charge upon the subject, any error therein, is held, to have been, waived.
    2. Master and Servant — Workmen’s Compensation Act — Person Other Than Employer.
    Where plaintiff, an employee of a corporation, in the course of his employment, was injured while riding in an automobile driven by defendant, also an einployee and vice president and a director of said corporation, as to plaintiff, the defendant was “some person other than the employer,” within the meaning of the workmen’s compensation act (section 15, part 3, 2 Comp. Laws 1915, § 5468), giving to plaintiff the option to proceed either-at law against said other person or under said act against the employer.
    3. Trial — Argument oe Counsel — Curing Error.
    Where there was testimony that plaintiff was seriously injured, that he had suffered considerable pain, and had expended about $300 for medical attendance, a verdict for $800, held, to negative any inference of prejudice because of the statement of plaintiff’s counsel that he “would not go through what plaintiff did for several times ten thousand dollars,” in view of the instructions of the trial judge to the jury not to be influenced by reason of any statement of counsel.
    Authorities discussing the question as to who are employees within the meaning of the Compensation Statutes, see notes in L. R. A. 1916A, 113; 245; L. R. A. 1917D, 143, and L. R. A. 1918F, 179'. i

      Error to Calhoun; North (Walter EL), J.
    Submitted January 22, 1920.
    (Docket No. 77.)
    Decided April 10, 1920.
    Case by Charles T. Webster against Louis E. Stewart for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cavanaugh & Burke and Joseph L. Hooper, for appellant.

      Ira A. Beck, for appellee.
   Clark, J.

Plaintiff Webster sued defendant Stewart, claiming damages for personal injuries suffered by him while riding in an automobile driven by defendant. It is claimed that the injuries were due to the negligent and unlawful driving of the defendant. Plaintiff was an employee of the Union Steam Pump Company, a corporation of Battle Creek, and both were under the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.). Defendant' was vice president and a director of the company. When plaintiff was injured both he and the defendant were engaged in the business of the company. They were going for the corporation from Battle Creek to Centerville to list from questionnaires the names of mechanics. Payments were later made to plaintiff by the Union Steam Pump Company, which, it is claimed, were made under the compensation act above mentioned, but there was no report or proceeding as to the accident before the industrial accident board. After accepting four of these payments plaintiff refused to sign a compensation agreement under the act and commenced this suit. The court denied defendant’s motion for a directed verdict. Plaintiff had verdict and judgment for $800. By assignments of error defendant presents three questions.

A juror on his voir dire said he owned an automobile and was asked if he was a member of the Citizens’ Mutual Automobile Insurance Company. Over defendant’s objection answer was taken and defendant says this was error. Plaintiff testified without objection that defendant told him that he need not worry about the damages, that the insurance on his car would i cover all damages done by the car. On direct examination defendant denied making the statement and his counsel went into the insurance matter at length. No complaint is made that any improper use was made of this testimony or that it was improper. There is nothing to indicate that the inquiry complained of was not made in good faith. The record does not disclose that defendant exercised any of his peremptory challenges, or preferred any request to charge upon the subject. The matter, even if meritorious, was waived. Link v. Fahey, 200 Mich. 308; Snyder v. Mathison, 196 Mich. 378; William R. Roach & Co. v. Blair, 190 Mich. 11.

Section 15, part 3 (2 Comp. Laws 1915, § 5468), of said compensation act, provides:

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employe may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”

Plaintiff did not proceed against his employer under the compensation act. Brabon v. Power Co., 201 Mich. 697. Defendant claims that he was not “some person other than the employer” under the statute. This was urged as the ground for a direction of verdict. At the time plaintiff was injured he and defendant were servants of the company. Defendant was acting as a superior under whom plaintiff was working at the time. Defendant does not discuss common law liability, 26 Cyc. p. 1548; 2 L. R. A. (N. S.) 378; 1 Mechem on Agency (2d Ed.), §§ 1460-1478), but says that if he is to be held liable here the provisions of the compensation act above mentioned will be rendered nugatory as to corporations. Judge North in disposing of this question cited and relied on the case of Churchill v. Stephens, 91 N. J. Law, 195 (102 Atl. 657). The New Jersey workmen’s compensation act has a provision substantially like the one above quoted. In that case the plaintiff was employed in a shop of which defendant was foreman or superintendent. Plaintiff in the employment was injured and claimed that such injury resulted from defendant’s negligence. The court said:

“The suggestion that the workmen’s compensation act deprives the plaintiff of his right of action is unavailing in the face of the amendment of 1913 (Pamph. L. p. 312) which enacts that the existence of a right of compensation from the employer under the statute shall not operate as a bar to the action of the employee. It_ is said that the defendant is not a third person within the meaning of the act. We see no reason for attributing to the words ‘third person’ any other meaning than the usual one. It must mean, as indeed the subsequent language of the section makes perfectly plain, a person other than the employer or employee.”

The words of our statute “some person other than the employer” should be given their plain and usual meaning. The corporation was the employer. As to the plaintiff employee, the defendant was a person other than his employer.

Plaintiff’s attorney in argument said: “I would not go through what Mr. Webster did for several times ten thousand dollars.” Defendant says this was prejudicial error. Upon objection, plaintiff’s attorney said he desired to amend the statement and asked the court to charge the jury and the court thereupon said:

“For the time being we will pass it by, saying to the jury that they must not be influenced in their determination by statements of counsel not justified by the evidence in the case, and it is. not a question of what counsel would endure the suffering for or what any juryman would endure the suffering for, but it is a question for the jury to determine if it finds in favor of the plaintiff, and they should not be influenced by reason of any statement of counsel.”

And in the general charge the court repeated substantially this instruction. The testimony of plaintiff and his witnesses indicated that plaintiff was somewhat seriously injured, that he had suffered considerable pain and had expended about $300 for medical attendance. The amount of the verdict may be said to negative any inference of prejudice because of the statement of counsel and the error was cured by the instructions of the court. The judgment' is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


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    PANTLIND v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Ordinances—Garbage.
    A refuse accumulation of animal, fruit, and vegetable matter attending the preparation, cooking, and use of food, 'including leavings from the table, although not mingled with liquid refuse, but rejected as unfit for human food, UeU, to be “garbage,” under section 3 of an ordinance of the city of Grand Rapids providing for the regulation, collection, etc., of same.
    2. Same — Garbage—Police Power — Constitutional Law — Private Property.
    A city, in the exercise of its police power, has the right to treat garbage as a nuisance, and if. in providing against same, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation.
    3. Same — Due* Process op Law.
    A city ordinance regulating and controlling the collection, conveyance, and disposal of garbage is not invalid on the ground that it takes private property without due process of law.
    Authorities discussing the question of power of municipality over nuisance of garbage in street, are collated in notes in 6 L. R. A. (N. S.) 1013; 43 L. R. A. (N. S.) 1037, and L. R. A. 1915C, 747.
    Appeal from superior court of Grand Rapids; Dun-ham (Major L.), J.
    Submitted January 8, 1920.
    (Docket No. 34.)
    Decided April 10, 1920.
    Bill by J. Boyd Pantlind and others against the city of Grand Rapids to enjoin the enforcement of a garbage ordinance. From a decree for plaintiffs, defendant appeals.
    Reversed, and bill dismissed.

      Swarthout & Master and Frank I. Blake, for plaintiffs.

      Charles A. Watt, for defendant.
   Clark, J.

We quote from an ordinance of the defendant city:

“An ordinance providing for the regulation, collection, ' removal and cremation of garbage, offal, dead animals and other refuse matter, and for the regulation of the crematory in the city of Grand Rapids.”
“Sec. 2. It shall be unlawful for any person residing within the limits of the city of Grand Rapids or elsewhere to deposit, throw or place any garbage, offal or dead animals in any lane, alley, street or other public place within the city of Grand Rapids; nor shall any person place any garbage, offal, dead animals or other refuse • matter upon any private property, whether owned by such person or not, unless the same shall be enclosed in proper vessels or tanks; such vessels or tanks to be perfectly water-tight and so kept; with .tightly fitting covers, which covers shall not be removed except when absolutely necessary; and such vessels or tanks shall be kept in the rear of the house or in the basement, area or passageway so as to be readily accessible for collection, and never upon the street, alley, sidewalk or other public place; and all such tanks or vessels shall be promptly delivered to the collector when called for, and shall be returned by him to said place or places without unnecessary delay; and no person except for such purpose shall in any manner interfere with said vessels or tanks, or/with the contents thereof; provided, however, that this section shall not apply to any person who immediately destroys by cremation or otherwise, satisfactory to the board of health, such garbage, offal and refuse matter.
“Sec. 3. The words ‘garbage’ and ‘offal’ as used in this ordinance, shall be held to include every refuse accumulation of animal, fruit or vegetable matter, liquid or otherwise, that attends the preparation, use, •cooking, dealing in or storing of meat, fish, fowl, fruit or vegetables. And it shall be unlawful for any person to place in said vessels or tanks any ashes or soil.
“Sec. 4. Said board of health is hereby authorized and empowered to enter into a contract with a suitable person or persons for the purpose of furnishing proper vessels or 'tanks for the reception of garbage, offal and all other unsanitary matter, and for furnishing the necessary vehicles for collecting and removing the same in the manner directed by said board of the city of Grand Rapids, or said board of health under the rules and regulations of said board may collect the garbage, offal and all other unsanitary matter, or collect and dispose of such substances. Such board of health shall have the power to make such rules, regulations and requirements as said board may from time to time deem for the best interests of the city; and said board may also divide said city into garbage districts, and shall have power to regulate-the gathering of night soil and the collecting and conveying of dead animals, garbage, slop and offal to the crematory or other place or places as may be directed by the said board. The person entering into a contract for the collection of and removal of such garbage, offal, dead animals and other unsanitary matter, as hereinbefore stated, shall, upon the recommendation of the said board of health receive a license for that purpose, issued by the mayor of said city and no license shall be issued to any other person, firm or corporation for the gathering of such garbage; such person so licensed shall give a bond to the city of Grand Rapids, with sufficient sureties and in such amount as may be required by said board of health. The condition of such bond shall be that said person so licensed shall in all things carry out the provisions of the contract thus entered into between himself and the board of health, acting for the city, and such rules and regulations as may from time to time be made by said board of health. The word ‘offal’ whenever used in this ordinance shall not apply to the by-products of butchers and meat markets.
“No person, firm or corporation excepting the city of Grand Rapids, shall collect or convey through the streets of said city any garbage, offal, dead animals or other unsanitary mattér, unless he, they or it shall have first received a license therefor issued by said city and execute a bond as required by this ordinance.”

The ordinance is not given in full in the record but it is said that section 7 provides a penalty for failure to comply with its provisions. Various arrangements have been made by defendant city from time to time for collection and disposal of garbage. On January 2, 1917, the city undertook for a consideration to collect and deliver to one Hartman all garbage of the city. In August, 1917, the person to whom Hartman had disposed of the garbage complained that plaintiffs were not delivering all of their garbage to the licensed collector of the city.

Plaintiff Pantlind was the proprietor of two hotels In the city. He also owned a farm several miles from the city upon which were fed to hogs and poultry the garbage, offal, refuse accumulations of animal, fruit and vegetable matter and other materials from the hotels. In each hotel after the dishes had been used in the dining room they were taken to the pantry and the waste and table leavings scraped off into large metal cans. Into these cans were also put peels, rinds, offal from fish and fowl and the general food waste of the hotel. Dish water was not taken. A part of this accumulation was taken by the city for which it furnished metal cans. Bread ends and other bread waste from the pantry were kept separately in a barrel. At times the better parts of the meat waste were also separately kept. Mr. Pantlind gave much of this bread and meat to charitable institutions and to the poor. Green cabbage leaves and lettuce were also kept separately in a box. Some vegetable parings were kept separately in a barrel. This cabbage and lettuce, parings, a part of the bread and meat accumulations and a part of the general garbage were taken by a Pantlind employee through the city streets to the Pantlind farm daily (except Sundays for a part of the year) by motor truck, the garbage cans being covered by metal tops and by a tarpaulin. The city received in its metal cans the rest of the garbage from these hotels. In dividing this garbage a steward of the hotels was of the opinion that plaintiff Pantlind received the better portion. Mr. Pantlind said:

“I don’t know as there is any particular difference. In a way probably I get a little the best of it.”

Carl Thor, who took the garbage from the hotels to the Pantlind farm, said:

“There is a difference between my'garbage and the city garbage. My garbage is the very best of it, the bread and table refuse; and the poorer garbage the city takes. The stuff in the cans I get from the Morton and Pantlind is bread crumbs, pieces of meat, orange peelings, grape fruit peelings, what they scrape off the plates, selected for us and that and the dry bread is kept separate. We take the bread out in a barrel; I am familiar with the contents of these cans, both when I get them and when I dump them out on the farm. * * *
“Once in a while you get some broken plates or glasses. Occasionally I find oyster shells, coffee grounds, tea leaves. I get most of the melon rinds because it comes right off the plates, all the things they take off the plates, melon rinds, mashed potatoes, scraps of meat, etc. Very seldom get any liquid in mine.
“Q. The whole moisture is a moisture of these things together?
“A. No, the garbage is drained before it comes up to the sidewalk.
“Q. All these things together make a composite mass?
“A. The cans we keep them dry and keep out the best, there isn’t much liquid.
“Q. I thought you said you put the bread mostly in a barrel?
“A. They do from the pantry where they make toast, have a barrel standing on the side; what comes back from the table goes in the cans.
“Q. Fish and all things of that sort?
“A. Well, there’s quite a lot.”

Plaintiff Lawrence conducted a restaurant in the city and also owned a farm beyond the city limits upon which he fed to hogs the garbage from his restaurant. The city got none of this garbage. It was sent by Mr. Lawrence through the city streets by horse and wagon to his farm in metal cans with metal covers, the cans covered by canvas. Mr. Lawrence said:

“Whatever is left on the tables or counters goes into those tubs, thence into the garbage cans and out to the farm. The coffee grounds are in a separate tub. No dishwater goes into the garbage cans. * * *
“It might be meat; might be mash potatoes and gravy; might be bread ends. We cut each end of the loaf of bread every; day and we use that on Friday for dressing. That 'is thrown in a cupboard and after Friday that goes into the tubs and goes out to the farm with the garbage, whatever is on, the plate, if half a cup of coffee, in the plates, in the tea cups, goes. . * * *
“Q. You say any leavings in the coffee or teacups are poured right in?
“A. Yes, sir; isn’t very often left but if it is it goes in. Any milk left goes in, too. If there is any soup left it goes in the can.
“Q. All things from your tables, whatever they are, go into your cans?
“A. Yes, sir; potato peelings, all those things from the kitchen goes in those cans. Also any entrails from the fish or fowls, and any trimmings and melon rinds, cabbage and all that stuff.”

Plaintiff Hannaford was the proprietor of a cafeteria in the city and also owned a farm near the city. His garbage was sent by him to his farm by motor car, the method being similar to that of the other plaintiffs. The city got none of this garbage. Mr. Hannaford said:

“Every bit of the garbage is fed out on the farm. The garbage isn’t decayed very much, only been in the cans from 12 to 15 hours. It is loaded and hauled every day. We don’t haul Sundays unless it’s absolutely necessary. We do in hot weather. It is carried away in iron cans, that is the wet garbage, the dry is put in barrels. I mean lettuce leaves, vegetables and potato peelings. Any thing .that is liquid is in the iron cans. There’s pieces of bread that goes into the dry cans or dry barrels that is fed to the chickens or hogs.”

His steward said:

“The garbage is come-back from the tables. The cans set under the dish tables and it's just scraped in. As the meals are finished, the dishes are loaded in a little truck and brought back from the dining room, laid on this table and the dishes scraped into these cans. The cans hold 20 gallons, galvanized iron with covers. No vegetable refuse goes into these cans, potato peelings and stuff go into sugar barrels or sacks. The' moist garbage is carried in galvanized iron cans.”

Cleanliness characterized the keeping and handling of this garbage by all of the plaintiffs. None of the plaintiffs collected or conveyed through the streets of the city any garbage but his own. On August 24, 1917, the city notified plaintiffs to discontinue forthwith the practice of disposing and collecting garbage and conveying the same through the streets of the city. On August 31, 1917, plaintiffs Pantlind and Lawrence filed their bill of complaint in the superior court of Grand Rapids alleging among other things that the city was about to proceed against them under the ordinance, to take their property, the so-called garbage, from them without compensation, to their irreparable injury, and to subject them to daily arrests, prosecutions and multiplicity of suits, and praying a temporary order and a perpetual injunction restraining the city from proceeding against them under the ordinance and from interfering with them in their transporting and conveying from their respective hotels and restaurants to their farms in the country, their so-called garbage. A temporary restraining order was allowed. Plaintiff Hannaford was permitted to intervene without objection of record. Defendant answered and by cross-bill asked affirmative relief: That the plaintiffs be required to account to the city for the garbage which had been taken to their farms and that they be enjoined from transporting through the streets of the city any garbage, and from in any way violating the provisions of the city ordinance relating thereto. After a hearing the trial court decreed to plaintiffs the relief prayed. Defendant has appealed. Because of what was said in Grand Rapids Board of Health v. Vink, 184 Mich. 688, and City of Grand Rapids v. DeVries, 123 Mich. 570, we consider but the following: Was the material conveyed by plaintiffs through the streets garbage within the meaning of the ordinance and had the city the right to control the disposition of it? That the matter conveyed through the streets of the city by the plaintiffs to their farms was almost wholly garbage within the meaning of section 3 of the ordinance above quoted we have no doubt. It was “a refuse accumulation of animal, fruit and vegetable matter” attending the preparation, cooking and use of food in these enterprises. Century Dictionary defines refuse: “That which is refused or rejected; waste or useless matter; the worst or meanest part.” See Gardner v. Michigan, 199 U. S. 325 (26 Sup. Ct. Rep. 106).

“In the case last cited (City of Grand Rapids v. DeVries, supra) it was quite plainly implied that the common council, in the exercise of the police power, had the right to treat as a nuisance all such refuse as is unfit for human food. The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health.” People v. Gardner, 136 Mich. 693.

See, also, Iler v. Ross, 64 Neb. 710 (90 N. W. 869, 57 L. R. A. 895) ; State v. Robb, 100 Me. 180 (60 Atl. 874, 4 Ann. Cas. 275).

As to the right of plaintiffs to those wholesome substances, leavings of the kitchen or table, which are fit for food, we quote from City of Grand Rapids v. DeVries, supra:

“It may be said that the ordinance does not attempt to regulate in any manner whatever the disposition of wholesome substances, by the householder. It is aimed only at refuse; that is, discarded, worthless matter — matter unfit for food. The householder has perfect liberty, under.the ordinance, to consume, or to sell or give away, all the leavings of his table or kitchen that are fit for food.”

The above language plainly implies that the city in the exercise of its police power had the right to treat as a nuisance all such refuse as is unfit for human food. People v. Gardner, supra. Wholesome substances may be distinguished from garbage upon the facts of a given case but generally speaking they may include broken bread, meat trimmings, vegetable parts, specked apples and the like, if fit for food. See State v. Orr, 68 Conn. 101 (35 Atl. 770, 34 L. R. A. 279). But when such matter is mingled with garbage it becomes subject to public control. Dupont v. District of Columbia, 20 App. D. C. 477.

“All authorities agree in holding that garbage in and of itself is a nuisance.” Grand Rapids Board of Health v. Vink, supra.

Gatherers, collectors and purchasers of garbage who conveyed the same through city streets have been held to be violators of such ordinances (cases above cited). Urbach v. City of Omaha, 101 Neb. 314 (163 N. W. 307); People v. Gordon, 81 Mich. 306.

But it is urged that a person who has produced garbage upon his own premises has a right to dispose of it and to convey it through the streets because it is property of- value and that as to him the ordinance is wanting in the due process of law required by the Constitution. Upon this point several dead animal cases, so-called, are cited but these are not controlling. It. is not competent to declare a dead animal to be a nuisance immediately after death. People v. Gardner, supra. Dead animals are not nuisances per se, and the city in its ordinances must pay a proper regard for the rights of the owner in such property. River Rendering Co. v. Behr, 77 Mo. 91. Garbage cases precisely in point are not cited. But we again quote from People v. Gardner, 136 Mich. 696:

“The court may well take judicial notice that table refuse, when dumped, into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health. If, in providing against such a nuisance, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation. Horr & B. Mun. Pol. Ord. § .220.”

The ordinance in the Gardner Case, supra, including the definition of garbage, is substantially the same as in the case at bar. In Gardner v. Michigan, supra, the language above quoted is approved and the court said:

“The defendant insists that it is part of the common knowledge of the country that the refuse from kitchens, tables, hotels and restaurants is valuable as food for swine, and is property within the meaning of the constitutional provision which forbids the taking by any State of private property for public use without compensation. * * *-
“Looking at the matter in a practical light, we are! unable to say that the means devised by the city council and indicated by its action were plainly unreasonable or unnecessary or did not have a real, substantial relation to the protection of the public.
“Touching the suggestion that garbage and refuse are valuable for the manufacture, of merchantable grease and other products it is,sufficient, in view of what we have said in the other case, to remark that it was a controlling obligation of the city, which it could -not properly ignore, to protect the health of its people in all lawful ways having relation to that object; and if, in its judgment, fairly and reasonably exercised, the presence of garbage and refuse in the city, on the premises of householders and otherwise, would endanger the public health, by causing the spread of disease, then it could rightfully require such garbage and refuse to be removed and disposed of, even if it. contained some elements of value. In such circumstances, the property rights of individuals in the noxious materials described in the ordinance must be subordinated to the general good. If it be said that the city might have adequately guarded the public health and at the same time saved the property rights of its owner on whose premises garbage and refuse were found, the answer is that the city evidently thought-otherwise, and we cannot confidently say that its constituted authorities went beyond the necessities of the case and exceeded their proper functions when they passed the ordinance in question. Those ordinances-cannot, therefore, according to well-settled principles, be held to be wanting in the due process of law required by the Constitution.”

We quote from State v. Robb, supra,:

“It may therefore be regarded as settled that reasonable municipal health regulations, under the authority of the State, are not void'as taking private property without due process of law, or as a taking of private property without just compensation. * * *
“That some regulation of the collection and removal of refuse and offal in thickly populated cities (is necessary) is not denied. It needs no argument to show that if the disposal of matter of that sort already decayed or which will forthwith decay, be left to the will or whim or negligence, or ignorance of its owner, or of those to whom the owner may commit it for removal, the health, to say nothing of the comfort, of the public, will be seriously , endangered. Ordinances or other regulations with respect to the collection and disposal of offal and garbage -have frequently been before the courts, and in no case has the power and propriety of regulation been questioned, though in some cases objectionable features in the method of regulation have been discovered. * * *
“The question now reverts to whether the regulation adopted in this case was reasonable and lawful. By its terms it gives the exclusive privilege of collecting and removing all refuse matter constituting' house offal or swill, within the city of Portland, to a person or persons specially appointed, and prohibits all other persons from engaging in that business. It even prohibits the owners upon whose premises the refuse is made, from carrying it through the streets • — no matter how carefully and safely — to uses of their own outside of the city. That house offal has some appreciable value, we think, may be assumed, but as we have already seen, that fact does not save it from police regulation, if it is already noxious, or is in such condition as to require prompt intervention to prevent its becoming noxious and dangerous to health. Harrington v. Board of Aldermen, 20 R. I. 233 (38 Atl. 1, 38 L. R. A. 305). The State may even direct its destruction. Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Rep. 499).”

See, also, Iler v. Ross, supra; 2 Dillon Mun. Corp. (5th Ed.) § 678; State v. Payssan, 47 La. Ann. 1029; In re Zhizhuzza, 147 Cal. 328 (81 Pac. 955); North American Cold Storage Co. v. Chicago, 211 U. S. 306 (29 Sup. Ct. Rep. 101).

The rights of plaintiffs in this garbage must be subordinated to the general good. They are compensated in the common benefits secured by the ordinance. The city has the right to control the disposition of this garbage agreeably to the provisions of the ordinance. The request of the defendant for an accounting which is not discussed in its brief and which is not supported by competent evidence and which was seemingly abandoned upon the hearing will be denied. The decree of the lower court is reversed and one will be entered dismissing the bill of complaint and enjoining plaintiffs from conveying garbage through the streets "of the city and from in any manner violating the ordinance of the defendant city with reference to garbage or removal thereof. No costs will be awarded.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.


text:
    CARY v. TOLES.
    1. "Wills — Construction—Repugnancy—Intent.
    Although the words used in the first part of the residuary-clause' of a will seemed to indicate an intention of the testatrix to vest the estate in her granddaughter subject only to the life estate of her daughter, yet where the following words indicate an intention that the granddaughter should have only a life .estate and then the residue should go to her issue, if any, and if not, then to the three sons of testatrix, or their children, effect will be given to such intention in construing the will.
    2. Perpetuities — Estates—Wills.
    A will creating a life estate in testatrix’s daughter, a life-estate in her granddaughter, after the daughter’s death, title to vest in the issue of the granddaughter, if any, at the termination of the life estates; if not, title to vest In testatrix’s three sons or their children, held, not to violate the statute as to perpetuities, since the power of alienation has not been suspended beyond the period of two-lives in being at the creation of the estate.
    Appeal from Berrien; White (Charles- E.), J.
    Submitted January 14, 1920.
    (Docket No. 89.)
    Decided April 10, 1920.
    Bill by Fannie B. Cary and another against Wilford C. Toles and another for the construction of a will. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      G. M. Valentine, for plaintiffs.
   Clark, J.

The will of Elizabeth H. Toles, admitted to probate November 1, 1906, after making some cash bequests, had the following residuary clause:

“All the rest and residue of my estate, real, personal and mixed, and the use . thereof, I give, devise and bequeath unto my daughter Fannié B. Cary, to have and to hold the same to her during her natural life; and at the death of my said daughter, all the property devised and bequeathed to her as aforesaid, or so much thereof as may then remain unexpended, I give, devise and bequeath unto my granddaughter, Sara Cary, to have and to hold the same to her forever, provided, however, if the said Sara Cary shall die without lawful issue, then, in that case, the share and portion of my estate hereby given and devised to her, or so much thereof as may then remain unexpended, I give and devise unto my said sons, Wallace H., Wilford C., and Herbert L., share and share alike, the children of each (if any), in case of his death, to have, receive and enjoy his share forever; and provided, furthermore, if the said Sara Cary shall die and leave her surviving lawful children, her issue, then in that case, it is my will, notwithstanding anything in the contrary herein, that such children of the said Sara Cary, share and share alike, shall have, receive and enjoy all that share, portion, reversion and remainder of my estate hereinbefore given, devised and bequeathed unto her, the said Sara Cary, or so much thereof as may then remain unexpended.”

The testatrix died seized of real estate in the city of Benton Harbor. The daughter, Fannie B. Cary, and the granddaughter, Sara Cary, now Sara Cary Bondy, survived the testatrix and are the plaintiffs in this suit. . Mrs. Bondy has one child, Elizabeth Beulah Bondy, about eight yeárs of age, who by next friend has been made party defendant. When this suit was commenced Herbert L. Toles, a widower, was deceased without issue. Wallace H. Toles and his wife were also dead leaving one child 27 years of age from whom plaintiffs have quitclaim deed of the real estate. The remaining son, Wilford C. Toles, is made party defendant. The bill of complaint was filed to obtain a construction of the will and for a decree that the real estate was devised in fee to plaintiff Sara Cary Bondy subject only to the life estate of her mother, Fannie B. Cary. A decree was entered dismissing the bill of complaint. Plaintiffs have appealed. Plaintiffs’ contentions are that the residuary clause in the will, after bestowing upon the daughter, Fannie B. Cary, a life estate, devised the fee therein absolutely to Sara Cary Bondy, and that the subsequent clauses in the will are void, first, because they are repugnant to the clause giving the fee to the property to Sara Cary Bondy and as an attempt to cut down an absolute gift to her; and second, as contravening the statute against perpetuities.

Repugnancy. The principles of interpretation of wills are stated by Justice Steere in Bateman v. Case, 170 Mich. 620:

“In the early case of Sisson v. Seabury, 1 Sumn. 235, Fed. Cas. No. 12,913, Judge Story thus speaks of the embarrassment attending resort to precedent in construing wills:
“ ‘The cases almost overwhelm us at every step of our progress; and any attempts even to classify them, much less to harmonize them, is full of the most perilous labor. * * * To lay down any positive and definite rules of universal application in the interpretation of wills, must continue to he, as it has been, a task if not utterly hopeless, at least of extraordinary difficulty.'
“The construction of a will is not merely determining the meaning of a word or phrase found in it, or ascertaining the sense of a particular sentence or form of words, though both are involved, but it demands the' drawing of such conclusions from the whole as are manifestly within the spirit of the text, though they may be beyond the direct expressions there found. It is the substance rather than the form which is to be considered. Toms v. Williams, 41 Mich. 552. The construction should always be in harmony with the expressed or implied intention of the testator unless contrary to some positive rule of law. The principle is clearly stated by Justice Moore in Robinson v. Finch, 116 Mich. 180.
“ ‘The first thing to determine is, What was the intention of the testatrix, as expressed in the instrument, taking it in its entirety, giving to the words used the meaning which it is evident the testatrix gave to them? For It is the cardinal principle of interpretation of wills to carry out the intention of the testator, if it is lawful and can he discovered. Bailey v. Bailey, 25 Mich. 185; Eyer v. Beck, 70 Mich. 181; Glover v. Reid, 80 Mich. 233; Schehr v. Look, 84 Mich. 263; Consino v. Consino, 86 Mich. 323; Jones v. Leming, 91- Mich. 481. * * * In Hamlin v. United States Empress Co., 107 Ill. 443, it is said:
“t «The latter part of the will is to be considered no less than the former part, and, to the extent there is repugnance, the language of the former part is to be read as modified by that of the latter part.”
“‘See, also, Barnes v. Marshall, 102 Mich. 248; Gadd v. Stoner, 113 Mich. 689.'
“See, also, Page on Wills, § 470; Schouler on Wills, p. 559.”

See, also, Fecht v. Henze. 162 Mich. 52, and cases cited.

And we quote from opinion of Justice Moore in Robinson v. Finch, 116 Mich. 182:

'“We think, however, the true rule is as stated by Chief Justice Marshall in Smith v. Bell, 6 Pet. (U. S.) 68, where the will disclosed a bequest to the wife which, standing alone, would give the estate to her absolutely, but other words in the will indicated that the testator intended to place limitations upon the legacy to the wife. The opinion reads:
“ ‘It must be admitted that words could not have been employed which would be better fitted to give the whole personal estate absolutely to the wife, or which would more clearly express that intention. But the testator proceeds: “The remain-
der of said estate, after her decease, to be for the use of the said Jesse Goodwin.” These words give the remainder of the estate, after his wife’s decease, to the son, with as much clearness as the preceding words give the whole estate to his wife. They manifest the intention of the testator to make a future provision for his son as clearly as the first part of the bequest manifests his intention to make an immediate provision for his wife. If the first bequest is to take effect according to the obvious import of the words taken alone, the last is expunged from the will. The operation of the whole clause will be precisely the same as if the last member of the sentence were stricken out; yet both clauses are equally the words of the testator, are equally binding, and equally claim the attention of those who may construe the will. ¥e are no more at liberty to disregard the last member of the sentence than the first. No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. Either the last member of the sentence must be totally rejected, or it must influence the construction of the first so as to restrain the natural meaning of its words; either the bequest to the son must .be stricken out, or it must limit the bequest to the wife, and confine it to her life. The limitation in remainder shows that, in the opinion of the testator, the previous words had given only an estate for-life. This was the sense in w-hich he used them.’ ”

It must be conceded in the instant case that the testatrix in the first part of the residuary clause to and including the word “forever” could not have used words better fitted to give her estate to her granddaughter subject only to the life estate of the daughter. It must also be conceded in this case that authorities may be found which support the contention of the appellants and that authorities may also be found supporting the contention of appellees and it is difficult, if not impossible, to harmonize these decisions, but we think the present tendency of the courts is toward the equitable rules of construction which have been quoted. Considering the question before us with these cardinal principles in mind, we have no hesitation in gathering from the four corners of this will a definite intention on the part of the testatrix to give a life estate in the property to her daughter, Fannie B. Cary; that after-the death of Fannie B. Cary the granddaughter, Sara Cary Bondy, should have the use of the same during the period of her natural life; that upon the death of Sara Cary Bondy the residue of the estate should vest in her issue, if any, and that, in the event that Sara Cary Bondy died without issue, then the residue of the estate should go to the three sons of testatrix and to their children in case of .their death.

The statute as to perpetuities. Sections 11532, 11533, 3 Comp. Laws 1915. The statute provides that there shall be no suspension of the power of alienation for a longer period than during the continuance of two lives in being at the creation of the estate. The estate was created at the death of the testatrix. Mullreed v. Clark, 110 Mich. 232. Upon the death of testatrix the daughter, Fannie B. Cary, and the granddaughter, Sara Cary Bondy, were living and as we have construed the will each was to have a life estate.. Upon the death of Sara Cary Bondy the fee will vest absolutely in her issue .in case such issue survive, but if no issue shall survive her, then the fee will vest absolutely in others. Upon determination of the second life estate the fee will vest absolutely. The power of alienation has not been limited or suspended beyond the period of two lives in being at the creation of the estate. A parallel case is McInerny v. Haase, 163 Mich. 364, in which it was held that a will creating a life estate in the testator’s widow, a life estate in his daughter after the widow’s death, title to vest in a granddaughter if living at the termination of the life estates; if not, title to vest in surviving grandchildren, does not violate this statute.

The decree is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JJ., concurred.