text:
    CURTIS v. SLATER CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Act — Findings oe Industrial Accident Board — Conclusiveness—Judgment.
    In affirming an award of the industrial accident board, under tbe workmen’s compensation act, to plaintiff’s bus-band (194 Mich. 259), tbe Supreme Court found that tbe testimony supported tbe finding of tbe board, but did not pass upon, and could not decide, any issues of fact as to which tbe finding of tbe board is made conclusive by statute when supported by any competent testimony.
    2. Same — Parties—Dependents.
    Under section 7, part 2, of tbe workmen’s compensation act (2 Comp. Laws 1915, § 5437), no dependent of an injured employee is deemed a party in interest to any proceeding by him for compensation during bis lifetime.
    3. Same — Death from Accident — Claim by Widow — New Cause of Action — Limitation of Action.
    A claim of tbe widow for tbe death of an employee, although based on an accident for which be receives compensation in bis lifetime, is a new cause of action, and under section 15, part 2, of tbe act (2 Comp. Laws 1915, § 5445), no proceedings for compensation therefor can be maintained unless tbe claim is made within sis months of tbe death.
    4. Same — Notice—Limitation of Action.
    Where proceedings for additional compensation to an injured employee were pending at tbe time of bis death, a notice of bis death, mailed to bis employer, entitled in tbe cause pending and signed by bis attorney, was insufficient notice of claim for compensation by tbe widow, based upon bis death.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted April 23, 1918.
    (Docket No. 36.)
    Decided September 27, 1918.
    Maria Curtis presented her claim for compensation against the Slater Construction Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and award set aside.

      Alexander & Cotter, for appellant.

      DeHull N. Travis, for appellee.
   Steere, J.

On November 20, 1913, John N. Curtis, husband of plaintiff, sustained an accidental injury while in defendant’s employ by which he was incapacitated for the work in which he was engaged until December 10, 1913, when he returned and continued in defendant’s service until some time in January, 1914, quitting, as defendant claimed, because most of its employees were laid off at that time owing to weather conditions and there was no further work for him to do. How steadily he worked after returning is a matter in dispute. When he returned to work on December 10, 1913, an agreement was entered into between him and defendant in regard to compensation for his injuries under provision of the employers’ liability act, measured by one-half his average weekly wages during the period he was absent and incapacitated for work by reason of the accident. The agreement, signed by the respective parties, stated the nature of the accident and his injuries as follows:

“A ditch caved in and bruised said John Curtis about the lower limbs and strained one knee.”

This settlement was approved by the industrial accident board and the stipulated compensation paid. A year later, on December 6, 1914, Curtis made application to the industrial accident board to reopen the case, claiming he was misled into signing the settlement agreement and receipt for payment as specified, requesting a hearing and further allowance of compensation. The board entertained this petition and proceeded to take testimony under it, including that of Curtis himself, who died on February 11, 1915, while the matter was yet pending. Notice of his death was filed in the case and mailed to defendant, after which an administrator of his estate was appointed, on April 19, 1915. On September 23, 1915, -the industrial accident board made an award granting to decedent’s estate, or its legal representative, compensation at the rate of one-half his weekly wages from the time of the last payment until the date of his death, or for 54 weeks in addition to that previously paid under the approved agreement. Defendant thereupon removed the case to this court for review by certiorari and the award was affirmed on December 22, 1916 (Curtis v. Slater Construction Co., 194 Mich. 259).

On February 2, 1917, plaintiff filed with the industrial accident board and served on defendant a claim for compensation because of the accidental death of said John N. Curtis while in defendant’s employ, made as dependent widow of deceased according to the form adopted by the accident board for that purpose.

Defendant denied liability, filing and serving its grounds of contest and an arbitration hearing was thereafter had before Fred A. Zierleyn, a deputy commissioner of the board authorized to act in the matter as chairman, at which hearing representation of the committee of arbitration was waived by stipulation of the parties. The proofs and allegations of the parties having been heard and submitted by consent to said deputy commissioner acting as a committee of arbitration, a decision was thereafter rendered in favor of defendant, and claim for review before the full board was then filed by plaintiff. Upon such review, without taking further testimony, the board by a majority opinion reversed the arbitration decision and made an award to plaintiff of one-half deceased’s weekly wages for 300 weeks, less that already paid, or awarded, to his' estate. A dissenting opinion was filed by the chairman of the industrial accident board, based chiefly on the ground that plaintiff had not made claim for compensation within six months of the death of her husband, at which time her right of claim first arose distinct from that made by him in his lifetime. This view seems to find support and precedent in a former ruling of the board reported in its Michigan Workmen’s Compensation Cases (of 1916),, page 430, where it is held that in case of death of the injured employee after approval of an agreement with him in regard to compensation, no right of claim existed to his widow or other dependents until his death, out of which it arose as a “new right of action, * * * in no way affected by any agreement or action of the deceased,” and

“In disputed cases where it is contended that the death was not the result of the injury, or where other defenses are interposed, the widow or the dependents are entitled to make application for arbitration, as the case is an original one not affected by the agreement in regard to compensation made by the deceased before his death.”

It is undisputed that the case of John Curtis against defendant came under jurisdiction of the industrial accident board in the first instance only by virtue of the agreement with him in regard to a settlement, which it approved, and but for jurisdiction thus acquired the board could not have entertained his belated application made nearly a year later for additional compensation.

Defendant’s various contentions center upon the two propositions that there is no evidence in the record to support the board’s finding that deceased’s death resulted from an accidental injury; and no claim for compensation was made by plaintiff within six months after his death as required by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445).

Curtis was about 64 years of age at the time of his decease. The medical certificate of his death, dated February 13, 1915, gave the cause of death as follows: “Bright’s disease, contributory (secondary) partial paralysis of lower extremities.” His physician, who signed this certificate, had been called to attend him about a year after his accident and testified that he found him afflicted with a partial paralysis of his lower limbs which subsequently resulted in his death; that from the history of the case as he learned it, together with deceased’s condition as he diagnosed it, he was of the opinion that the partial paralysis he found resulted from the accident of over a year before, upon which deceased’s and, later, plaintiff’s claims were based. This opinion was controverted by a physician who visited deceased shortly after the accident and by other expert testimony. Much of the testimony in both cases was devoted to this issue of fact and runs along similar lines, being there directed to the cause of deceased’s then condition, in relation to which he testified, and here to the cause of his death. The point is stressed for plaintiff that in the case of John Curtis against defendant, both the industrial accident board and this court found that he was “totally disabled as a result of accident,” and “rightly paid compensation up to the time of his death,” which apparently is assumed as the starting point for inquiry into plaintiff’s rights. This court did not pass upon, and could not decide, any issues of fact, as to which the finding of the board is made conclusive by statute when supported by any competent testimony. It was there found that the testimony of Curtis and his physician gave support to the finding of the board and the award was affirmed, since, as said in Redfield v. Insurance Co., 183 Mich. 633, “unless there was no proof to support the finding of fact, this court has no power to interfere.”

The question of whether there is any proof to support the finding that deceased’s death resulted from the accident, which is elaborately argued in the briefs of counsel seems, however, on this record secondary to the more direct and serious question of an intervening statute of limitations. Under section 7, part 2, of the act (2 Comp. Laws 1915, § 5437), by authority of which this claim is made, no dependent of an injured employee can be deemed during the employee’s life a party in interest to any proceeding by him for enforcement of any claim for compensation, nor as respects compromise thereof by the injured employee. From this it would seem to follow, in harmony with the previous ruling of the board above referred to, that, not being a party in interest to the proceeding by her husband during his lifetime, plaintiff’s subsequent claim, or “new cause of action” arising from his death, was not beneficially or detrimentally affected through anything done by him in his proceeding, except a possible reduction of her claim by reason of payments actually made to him. Aside from this, whether her husband’s death immediately followed the accident or he lived to institute proceedings for compensation in his own behalf, her claim based on a new, original right arising from his death was the same. She admits and it is undisputed that the first and only direct claim made upon defendant by her after her husband’s death for compensation in compliance with the act was in 1917, about 22 months after her husband’s death in February, 1915.

By section 15, part 2, of the act (2 Comp. Laws 1915, § 5445), no proceedings for compensation can be maintained unless the claim therefor is made within six months after the accident “or, in case, of death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.” The limitation of time for making claim for compensation in case of death, whether contemporaneous with the accident or later, is plainly expressed without qualification or exception. This court has had occasion in several recent cases to consider the provisions of this section in various aspects, • emphasizing its mandatory character as a statute of limitations. Podkastelnea v. Railroad Co., 198 Mich. 321; Cooke v. Furnace Co., 200 Mich. 192; Kalucki v. Foundry Co., 200 Mich. 604; Dane v. Traction Co., 200 Mich. 612; Schild v. Railroad Co., 200 Mich. 615; Peterson v. Fisher Body Co., 201 Mich. 529. Notice of the injury and claim for compensation are separately mentioned in the act and both are required, the first to be given the employer within three months and the second made within six months.

The following notice of death was filed with the board by deceased’s attorney, and a copy mailed to defendants at the same time, as he testified, but receipt of which is denied:

“Before the Honorable the Industrial Accident Board.
“John N. Curtis v. Slater Construction Co.
“Take notice that your petitioner John N. Curtis died last night from his injuries.
“DeHull N. Travis,
“Attorney for Petitioner.”

Although defendant denied receipt of any such paper the board in its majority opinion found as a fact it was mailed to the defendant, and expressed the belief, or assumed “that the respondent received it in the ordinary course of mail,” construing it as follows:

“We think that notice constituted a claim on the part of the dependent wife to the effect that she intended to claim compensation on account of the death of her husband, if indeed any claim was necessary at all under the circumstances of this case.”

We find no legal ground for so construing this brief notice. The significant circumstances were the death of an injured employee during the pendency of his claim for compensation, giving rise, as the board once held, to a new and original cause of action or claim in favor of his widow. The notice makes no reference to her or any claim in her behalf, or any new cause of action. It is entitled in and relates to the cause of action or claim for compensation by John N. Curtin, named as petitioner, then pending before the board, and is signed by his counsel as “Attorney for Petitioner.” It was a valid suggestion of death in that case and was followed by continuance of that proceeding in the name of his administrator to recover compensation claimed due him at the time of his death; but conceding it might serve as a notice of accidental death in compliance with the' statute, preliminary to a claim by her for compensation arising by reason of her husband’s death, it was but a notice of that event with no reference to her or suggestion of a new claim by her against defendant independent of the one then pending.

In support of the ruling that a claim by plaintiff within six months after the death was not required, the case of Moffat v. Crow’s Nest Pass Coal Co., 7 B. W. C. C. 1040, is cited wherein it was held, under the workmen’s compensation act of British Columbia, that where the injured workman had instituted proceedings for compensation and died about two weeks later his dependents could continue the proceeding without fresh claim or notice. The British Columbia act, though containing a provision similar to the Michigan act as to claim and notice, provides further that want of notice, or any defect or inaccuracy in that connection shall not be a bar to the maintenance of such proceeding if it appears that the employer was not prejudiced in his defense thereby, thus giving latitude to the arbitrator for exercise of discretion in that particular and evidently with the death occurring so soon after the accident it so appeared; neither does the act of that province provide that the widow or other dependents shall not be parties in interest in proceedings instituted by him. That act varies from other restricting features found in the Michigan act, in connection with which under former decisions of this court the statutory limitation under consideration has been held mandatory.

Under the plain requirement of our statute it was incumbent on plaintiff to make claim for compensation within six months from February 11, 1915. She having failed to do so, the award of the industrial accident board appealed from was without jurisdiction and cannot be sustained.

The order is therefore reversed and the award set aside, with costs to appellant.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    COMSTOCK v. POTTER.
    1. Contribution — Fraud—Evidence—Burden of Proof.
    On a bill for contribution from cosureties on promissory notes tbe proceeds of wbicb were used to promote an automobile concern in wbicb plaintiff and defendants, all mature business men of experience, were stockholders, tbe defense being tbat defendants were fraudulently induced to indorse tbe notes, tbe burden of proof was upon defendants.

    2. Same — Evidence—Sufficiency.
    Evidence held, insufficient to make out a case of fraud, and tbe decree of tbe court below in favor of plaintiff is affirmed.

      Appeal from Cheboygan; Shepherd, J.
    Submitted April 12, 1918.
    (Docket No. 71.)
    Decided September 27, 1918.
    Bill by William A. Comstock against Fred N. Potter and others for contribution as cosureties on certain promissory notes. Defendants filed a cross-bill claiming fraud. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Henry & Henry (V. D. Sprague, of counsel), for plaintiff.

      I. S. Canfield, for defendants.

      See notes in 35 L. R. A. (N. S.) 64; L. R. A. 1915A, 898.

   Steere, J.

Plaintiff brought this suit to recover from defendants contribution as cosureties on an indebtedness of $15,000 to the Alpena County Savings Bank paid by him, for which the bank held eight promissory notes for $1,875 each dated July 31, 1914, payable six months after date with 6% interest per annum, each note signed by one of the parties hereto and indorsed by the others. The money represented by these notes was borrowed by the parties to this action in 1912 to meet the necessities of the Alpena Motor Car Company, a corporation in which they were all stockholders, then a going concern, which had become but a regretful memory when plaintiff paid the notes. At the time the loan was originally made, on July 31, 1912, a single note for $15,000, payable six months after date, was given, signed by plaintiff as “trustee under agreement of May 11, 1912,” persohally indorsed by him and defendants. It was renewed in that form as a single note several times and then split up into these individual notes mutually indorsed, which, not being paid when they fell due, were protested for nonpayment by the bank. On' February 26, 1915, the bank wrote the signers and indorsers calling attention to the fact the notes were not paid when due and had been protested, saying in part:

“We will not expect you to delay arranging for these matters later than noon of March 3, 1915.”

On April 16, 1915, the bank sent plaintiff a statement of principal, interest and protest fees due on the notes, amounting to $15,658, saying,

“We have been unable to make collection of these and hereby request that you take same up.”

This plaintiff did by then giving to the bank a check for the interest and charges with his personal note for $15,000 secured by certain railroad stock owned by him assigned as collateral. This he paid December 8, 1915.

An order of the trial court overruling defendants’ demurrer to plaintiff’s bill of complaint in this case was reviewed and sustained in Comstock v. Potter, 191 Mich. 629. Reference may be made to the report of that case for the substance and theory of plaintiff’s bill for contribution; also for a historical outline of events connected with the Alpena Motor Car Company leading up to the litigation between the parties, both it and the kindred case of Comstock v. Corbin, 191 Mich. 639, may be consulted. In the latter case defendants’ demurrer to a bill for exoneration was sustained, it not there appearing plaintiff had yet paid the debt for which he claimed defendants were liable, as had' been done in the instant case.

This case having been remanded for further proceedings, defendants filed answer in denial claiming the benefit of a cross-bill, the gist of their defense being that they were induced to enter into the trust agreement of May 11, 1912, and to sign these notes through false and fraudulent representations made by plaintiff and defendant Roberson as to the financial condition of the Motor Car Company and value of an equity in the so-called “Netherlands property,” held as security for the notes, asking as affirmative relief that said agreement and notes be declared void and defendants’ liability thereon decreed to be at an end.

Plaintiff answered the cross-bill in denial of the alleged fraud and the case was heard upon pleadings and proofs, consisting of oral testimony in open court and depositions taken by the respective parties. An opinion was thereafter filed by the trial court holding defendants liable for contribution upon the loan of $15,000, according to the notes they signed and plaintiff had paid, dismissing their cross-bill.

At the time this bill was filed by plaintiff, August 14,1915, the secured note which he had given the bank to take up these notes had not yet been paid by him and it is argued for defendants that the “real situation of the parties and their liability upon their notes was not changed by the trustee putting his own note in their place.” There was no question of trusteeship involved in this matter so far as the bank was concerned. The notes were each signed personally by the makers and indorsers. The bank had protested them for nonpayment, demanded payment, and then called upon plaintiff to take them up, which he did with money and secured paper acceptable to the bank. It thereafter had no claim on the notes nor against the makers or indorsers for the debt they represented. As between it as payee and them, and between plaintiff and defendants, he had paid the notes held by the bank against all of them as makers and indorsers.

It is further contended as a proposition of law that plaintiff’s claim for contribution is premature even if he did pay the notes, and cannot be entertained by the court until he has disposed of the Netherlands property and wound up his trusteeship under the trust agreement of May 11,1912, described in 191 Mich. 629. If defendants’ contention is tenable it would seem to follow that defendants’ demurrer was then wrongfully overruled, for the situation is unchanged in that particular and it was there noted that plaintiff claimed, as is shown here, that he “had held and managed the "Netherlands property’ without compensation, applying the income to payment of interest, charges, taxes, and expenses, but had been unable to sell the property, and so he had not paid any part of the indebtedness scheduled in said last named agreement,” which included the original $15,000 note. Though not especially discussed in that decision, this question, distinctly a matter of demurrer, was then as squarely in the case and before the court as now, and presumably disposed of in the order overruling the demurrer. But if not, we find nothing in any of their agreements making liability on the $15,000 note of July 81, 1912, running for only six months, contingent upon deficiency in the proceeds from a sale of the trust property, which defendants allege in their answer “was of no value above the incumbrance thereon that could be realized by a sale of the same, all of which was well known by plaintiff.” The $15,000 loan was apparently not in contemplation when the agreement of May 11, 1912, was entered into, for it was not made nor- mentioned until July 31, 1912, when it was orally agreed upon, as plaintiff testified, to meet the then pressing necessities of the Motor Car Company, although possibly contemplated in the provision of the trust agreement for application of balance, if any, of the proceeds in case of sale under written consent of all parties after paying all expenses and incumbrances thereon. But by it some $23,000 of other notes previously given would take priority, and it was then recognized the residue might not be adequate for as to them it was ""agreed that if said property does not bring a sufficient sum of money to pay all of said notes in full each of the parties of the second part shall bear equally his portion of the unpaid amounts due on said notes.”

It is claimed by plaintiff, though disputed by defendants, that the parties agreed this $15,000 borrowed by them for the Motor Car Company was a stock subscription, and it appears so credited on the books of the company. Weight is given to this claim by their subsequently splitting up the amount into individual notes ‘mutually indorsed for acceptance by the bank. From the fall of 1911 unsuccessful efforts were made to dispose of the Netherlands property which plaintiff had been caring for in the meantime, without compensation. The change to separate notes was admittedly agreed to and made on his suggestion because, as he claimed, his liabilities in this and other business matters were pressing him. Collins, who was at one time president of the Motor Car Company, testified:

“The $15,000 note was divided up into $1,875 notes, of which I signed one, because Mr. Comstock said they were holding this note against his line of credit at the bank and that if we would sign these notes separately that would help his credit there at the bank and I was willing to do that. And did do so.”

Comstock testified that he requested this—

“because these men who were on these notes know as well as I do that the bank had been hammering for payment of these notes for nearly two years; and when we got them split up it was with the idea that the next time those notes became due they were to have,— if not a substantial payment, to be paid entirely; but each one was going to assume his share. That was the understanding. * * *
“Q. The bank’s understanding?
“A. That is the understanding with these men. They were told that.”

This is controverted by defendants who claim plaintiff assured them they would thus secure an extension of credit and eventually the debt would be cared for by proceeds from sale of the Netherlands property. If so, it is difficult to discover how his credit would be helped or the situation relieved in any way as to him by the change. Defendants were business men of mature years, presumably with knowledge of the significance of commercial paper of this kind when given by them. After signing them they did not pay or care for them when they became due and were protested by the payee. When payment was demanded of plaintiff as an indorser he paid them to protect his credit. His right to contribution under the facts in this case was not contingent upon or deferred to the sale of the Netherlands property.

The defense of fraudulent inducement, to which the testimony in this ample record is largely devoted, is essentially an issue of fact with the burden of proof on defendants. The Alpena Motor Car Company was organized in 1910 for the manufacture of automobiles in the city of Alpena and ended in hopeless bankruptcy, in 1913. It was locally promoted with an appeal to local loyalty, and is described as a “Chamber of Commerce proposition.” One of the projects for raising capital for it was a donation by the city and county of a piece of land to the Chamber of Commerce which platted the same and sold lots to citizens at $200 each, giving each purchaser of a lot a bonus of $50 par value of preferred stock and $50 par value of common stock of the company. Plaintiff at that time became a stockholder to the extent of 15 shares of common and 15 shares of preferred stock through becoming one of the subscribers to the original sale of lots. He was absent from Alpena much of the time during 1910 and 1911 and took no part or interest in the affairs of the company prior to the spring of 1912 except with others to indorse for it two $8,500 notes in the fall of 1911. He testified that he first indorsed paper for the company because they said, “If you will indorse this paper, why, the bank will take it,” and his interest in the affairs of the company started when he commenced to get home to Alpena more than usual in the spring of 1912, but he did not contemplate becoming interested or active in its management until he became a director in May, 1912, and was forced into it.

Defendant Roberson, with whom it is charged plaintiff conspired to defraud the other defendants, was active from the beginning in the promotion and efforts to finance the Motor Car Company which was launched in a promising period of over-optimism as to that industry, when promotion of automobile manufacturing companies throughout the country was in flower. He had then recently organized the Alpena News Publishing Company, in association with the owners of a paper called the Argus, by purchasing the Alpena Evening News and other papers which they consolidated, had previously been engaged in the advertising and publishing business in Detroit, and testified that he first became interested in the auto factory project through advocating in his paper the contribution of a bonus to help it as a local industry to manufacture an automobile which certain Alpena men had designed. He, however, became one of the directors when the company was organized and was selected as its secretary, treasurer and general manager.

These defendants were all business men of Alpena, of mature years and experience in the business world; most if not all of them were from the beginning connected with this enterprise and more familiar with its promotion than plaintiff. Collins, a contractor and builder, was a director, its president and later its general manager. Corbin and Hill were in the cedar and lumber business together for many years; Corbin was a director; Fred N. Potter, who was also a director, and when these notes were given its secretary, had been in the insurance business and at that time was postmaster of Alpena; J. J. Potter and J. D. Potter were old hardware merchants.

By the efforts of Roberson and those associated with him in the enterprise the company was sufficiently financed locally to acquire and equip a factory and entered upon the manufacture and sale of the designed automobile. Plaintiff is not shown to have had anything to do with his selection as manager, and, as Cor-bin admitted, had no active connection with the management of the auto company until Roberson went away; but the fact is stressed by defendants that he was a former acquaintance of plaintiff and for several years in his employ. Roberson testified that he went to Alpena in 1906 and entered plaintiff’s employ at a salary of $125 a month and, of his duties, that he had charge of plaintiff’s real estate, looked after the bookkeeping in his office and did such other work as he was instructed or authorized to do. Plaintiff testified that the only transactions of importance Roberson had charge of for him were building up the “Temple Theatre” and running a creamery business they had started for the purpose of developing the wild lands around Alpena then going to waste, which was an expensive failure and admitted that as it turned out Roberson did not prove to be a successful business man for him. There is little in the record beyond defendants’ surmise from the bare facts that Roberson was in plaintiff’s employ and they were friendly, to support the charge of their co-operation to defraud defendants by false representations.

Early in 1911, when the need of additional working capital became pressing, Roberson made various efforts to dispose of more treasury stock with indifferent success, but while in Washington on that mission he made a deal through some brokers for the equities in an apartment building called the Netherlands, which was incumbered by two mortgages, the first being for $85,000 and the second for $40,000. For this he agreed to give $50,000 treasury stock of the Motor Car Co. and a third mortgage of $25,000, making the total incumbrance on the property $150,000. From an examination of the property, inquiries as to values and appraisals shown him, he became satisfied, as he testified and told officers and directors of the company, that in his opinion the property was worth about $200,000 and proposed that the company take over the deal. This was accepted by the directors and the equity in the property was assigned to the auto company on issuance of the $50,000 treasury stock to the vendor. Not long thereafter an agreement was entered into by which the title to this property was conveyed to him in trust to secure the indorsers of the two $8,500 notes of September 26, 1911, which plain-, tiff was induced to indorse, and two notes of $3,000 each indorsed by defendants Potter, making $23,000 thus raised to carry on the business of the company. In January, 1912, Roberson resigned his connection with the company as manager and treasurer, owing to ill health, as he stated, and left Alpena, defendant Collins being then. elected general manager and defendant Corbin treasurer of the company. Soon thereafter the directors had an audit made of the books and accounts of the company by expert .accountants from Detroit. Plaintiff became a director in the company in the spring of 1912, after Collins had become manager and Corbin treasurer. Roberson having dropped out, he accepted the trusteeship of the Netherlands property held as security for the indorsers and makers of the $23,000 of notes given the fall before, which were renewed. In July, 1912, the $15,000 note was given for the indebtedness subsequently represented by the notes here involved, and on April 28,1913, to save the Netherlands which they had been unable to sell, a further agreement was executed between all these parties and one Culligan which provided that plaintiff, under the trust agreement of May 11, 1912, might as trustee borrow $12,000 from Culligan and $12,000 from himself, the same to be applied to paying off the “third trust against the Netherlands property in Washington, D. C., together with interest charges and taxes and expenses accrued against said property,” with a concluding provision that in case the trustee made a sale of the property the proceeds should be applied as stated in Comstock v. Potter, supra, 633.

Defendants’ chief ground for denying liability on these notes arises from their claim that when the first set of notes, aggregating $23,000, was given in September, 1911, and later when the trust agreement of May, 1912, was entered into, plaintiff represented to them that the Netherlands property was worth $200,-000 and they were thereby induced to sign the notes under the belief that the equity in the same held by him as trustee was ample protection. .As to the claimed representation in connection with the first notes we fully agree with the following view expressed in the opinion of the trial court:

“Plaintiff denies making any representations whatever at the September meeting. In my view of the case, it is unnecessary to decide whether or not he did so. It must have been understood by all concerned that plaintiff had no greater knowledge of the value of the Netherlands property than any of the defendants, except Mr. Roberson, who is not contesting this matter. Roberson alone had seen the property and whatever information plaintiff or any of the defendants, except Roberson, may have had as to its value, was based on Roberson’s report, of which defendants had as full knowledge as had plaintiff.”

Plaintiff had not at that time seen or made investigation as to the value of the Washington property, had. been absent from Alpena much of the time since the auto company was organized, had no stock in it except the few bonus shares received with his subscription for a Chamber of Commerce lot, along with other citizens, and had declined to further become interested in the company, or participate in its management. The testimony is persuasive that his knowledge of its financial affairs and the value of its assets came from and was presented to him by defendants in such manner that he rather than they was, if not misled, at least overpersuaded to become actively interested. Beyond his own positive statements there is much in the record lending support to the following testimony of Roberson as to how plaintiff first became an indorser for and associate with defendants in the affairs and management of the company:

“We appointed a committee to confer with Mr. Comstock and see if we could not possibly interest him to help us out by indorsement. Up to this time Mr. Comstock had persistently declined to have anything to do with the company. * * * I may state further that he had 15 shares of common stock and 15 shares of preferred stock when the company was organized, but this stock was merely the bonus that accompanied the purchase by him, along with dozens of other Alpena citizens, of three of the Chamber of Commerce lots. Mr. Corbin frequently told me that if it was possible to get Will Comstock into this Motor Car Company * * * he could be of the very greatest service to us with his name merely attached to the personnel of the organization. Furthermore that if we once got him behind us that he would have to help to see us through. Consequently about this time when we held a meeting Comstock’s name was always suggested by somebody, and various plans were discussed as to how we could get Comstock into it. This committee, above referred to, went to Comstock and by appealing to his civic pride, -his enthusiasm for the Chamber of Commerce, his large interests in Alpena, and so on, finally got him to go into it. Comstock agreed that if Culligan would advance the $8,000, and if J. D. Potter and J. J. Potter would indorse for $3,000, in addition, that he would indorse for his pro rata share of the balance.” * * *

Previous to the meeting of May 11, 1912, when the $15,000 note was given, plaintiff had, at request of the directors, visited the Netherlands property when in Washington and made some investigation as to its value. Defendants charge and testify that on his return he misrepresented its value, claiming it was worth sufficient beyond the incumbrances to protect all the paper they signed or indorsed to raise money for the auto company, and failed to inform them of estimates or appraisals he obtained from certain real estate men in Washington. He positively denied this, and claimed that he not only made no misrepresentations to defendants as to its value but that he truthfully reported to them what he saw and learned touching the character of the property and its probable value.

To review the conflicting testimony on this issue of fact would serve no helpful purpose, but from this record, considered in its entirety, we find no occasion to disagree with the following conclusions and reasons of the learned trial judge who heard the case.and saw the witnesses who testified before him:

“The burden of proof, of course, is upon the defendants. Taking into account the testimony of disinterested witnesses as well as of those that were interested and the probabilities and circumstances that naturally surround such a situation, I am clearly of the opinion that the defendants have failed to make out their case. No motive can be imputed to the plaintiff sufficient to have induced him to deceive any of the defendants or himself and he would naturally become the greatest victim of his own deceit. * * * Sufficient motive has been shown to have induced all of the parties to sign these notes irrespective as to the representations of the value of the Netherlands property. They were all much interested in the Motor Car Company, which was to acquire the proceeds of these notes. . Witnesses Levyn, Krebs and Nunnelley were disinterested and testified that the plaintiff did not make the representations claimed by certain of the defendants. Defendants claim that these witnesses were not present at the meeting in question; but the records of the Motor Car Company signed by one of the defendants and presumably written at a time when this controversy was undreamed of, show that they were present.”

Beyond the showing, which is not disputed, that plaintiff as trustee of the Netherlands property has made honest effort without avail to sell 'it at a fair price which would realize something beyond the in-' cumbrances upon it and was continuing to do so, his stewardship as trustee of that property is not involved or passed upon in this decision. The controlling question determined here is fraudulent inducement to sign these notes, and whether contribution by defendants is contingent upon a sale of the trust property, which defendants alleged was of no value beyond the incumbrances thereon, and the verification of a deficiency. If, as suggested in the brief of defendants’ counsel, changed conditions in Washington owing to the present great war have resulted in enhanced values of property like the Netherlands, it may prove fortunate that forced sale of the property has not been made, for plaintiff is yet bound'to faithful performance of the conditions of his trust agreement by which he holds this property in the interest of defendants, and all for whom he is trustee, and is holden to strict accounting to them for the same, in relation to which this decision is without prejudice.

The decree is affirmed, with costs to plaintiff.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    PETERS v. FOWLER.
    1. Wills — Construction—Intent.
    In the construction of a will, the intent of t{ie testator is the cardinal rule, and, if clearly perceived and not contrary to some positive rule of law, must prevail.
    2. Same.
    When a will fairly construed is susceptible of two constructions, one of which would render it inoperative, and the other give effect to it, the duty of the court is to adopt the latter construction.
    3. Sam:e — Perpetuities—Charitable Uses — Statutes.
    Under'Act No. 122, Pub. Acts 1907, as amended (3 Comp. Laws 1915, § 11099 et seq.), a will bequeathing the residue of testator’s estate; real, personal, and mixed, after the payment of certain specific bequests, to the “board of foreign missions of the Methodist Episcopal church incorporated by the legislature of the State of New York,” and providing that the executors might hold the real estate for five years, if necessary, to obtain $75 an acre for it, is not void by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries or the uses to which the bequest should be devoted, nor by reason of the same contravening the statute against perpetuities.
      In re Brown’s Estate, 198 Mich. 544.
    Appeal from Gratiot; Searl, J.
    Submitted April 3, 1918.
    (Docket No. 20.)
    Decided September 27, 1918.
    Bill by Jesse S. Peters and another against Arthur E. Fowler, administrator of the estate of Abner Peters, deceased, and others, to set aside certain deeds and mortgages and to declare void the last will of Lafayette Peters, deceased. From a decree overruling a demurrer to the bill, defendants appeal.
    Reversed, and bill dismissed.

      Edwin H. Lyon and John W. Myers, for plaintiffs.

      William M. Smith, for defendants Clinton County Savings Bank and Vaughan.

      Charles H. Goggin and George P. Stone, for defendants Peters et al.

      O. G. Tuttle, for defendants Creaser et al.

      See note in 14 L. R..A. (N. S.) 66.

   Moore, J.

This is an appeal from an order overruling a demurrer to the bill of complaint and denying a motion to dismiss the bill of complaint. The bill of complaint was filed September 7,1915, for the purpose of decreeing the last will of Lafayette Peters to be void, and that a certain deed dated February 24, 1915, made by Lafayette Peters, be set aside and that all other conveyances and mortgages based on said deed or on proceedings in probate court in relation to the estate of Lafayette Peters be set aside.

The plaintiffs are a nephew and niece and heirs at law of Lafayette Peters. On the 15th day, of April, 1911, Lafayette Peters made the will in controversy, which will was admitted to probate on the 7th day of April, 1914. No appeal was taken from its allowance. About twenty paragraphs of the will make bequests about which there is no controversy.

Paragraph 22 reads:

“I give and bequeath to the Elwell Methodist Episcopal Church of Elwell, county of Gratiot, State of Michigan, incorporated under act number 11 of the Public Acts of 1899 of the State of Michigan, as appears by articles of incorporation dated January 17th, A. D. 1911, recorded in the book of records of incorporations in the county clerk’s office of Gratiot county, State of Michigan, in liber number 4, on page 81, the income of five hundred dollars of my estate. This income it shall receive as long as there shall be Methodist Episcopal services held open for the public, in the now unincorporated village of Elwell, in the township of Seville, county of Gratiot, and State of Michigan, or in such territory as said village may grow to, twelve or more Sundays each year, payable yearly, commencing one year after the said five hundred dollars is set aside by my executors for that purpose, to such officer as the majority of the board of trustees shall in writing designate as long as such corporation exists and to such person as the persons holding such meetings shall designate in writing should such corporation cease to exist, and the receipt of the person heretofore designated shall be a sufficient discharge to my executors or trustees under this will for the same.
“Upon said services not being held twelve Sundays in one entire year, said principal sum and any accrued income I .give and bequeath to the board of foreign missions of the Methodist Episcopal church incorporated by the legislature of the State of New York and the receipt of the treasurer thereof shall be a sufficient discharge to my executors or trustees under this will for same.
“I shall expect my executors as soon as said five hundred dollars is available to place said money in certificates of deposit, drawing interest in a bank and to loan the same on only first mortgage on real estate only as soon as they can and the judgment of my executors or trustees under this will as to the bank the money shall be put into or the real estate the loans shall be made on shall not be questioned.”

Paragraph 28 of the will is the one that plaintiffs claim makes the will void. It reads:

“All the rest and residue of my estate, real, personal and mixed, of which I shall die seized and possessed or to which I shall be entitled at my decease I give, devise and bequeath to the board of foreign missions of the Methodist Episcopal church incorporated by the legislature of the State of New York, and the receipt of the treasurer thereof shall be a sufficient discharge to my executors for the same.
“A. I will and direct that all expenses incurred under the items heretofore numbered 1, and everything necessary under item 9th be paid in full from moneys, personal and mixed property that I have on hand at the time of my decease.
“B. In order to pay the aforesaid legacies and give as much under the 23d as I desire to unless previous to my death I shall dispose of the real estate I now own I desire my executors to hold the following described real estate that I die seized and possessed of for five years after the date of my death, if necessary to obtain seventy-five dollars per acre for said real estate. For it is my will that any of the following described real estate that I shall die seized and possessed of shall not be sold for less than seventy-five dollars per acre, unless it can all be sold so that it will average seventy-five dollars per acre and as much more as my executors can obtain until after five years after the date of my death. After five years after the date of my death my executors are at liberty to divide it and dispose of the same in a manner as in their judgment will bring the best possible price. This shall also apply to any part of the said described property that I may own at the time of my death. * * *
“C. It is my will that my executors have two years after the five years after my death, should the five years be necessary, as heretofore set forth, in which to dispose of said real estate and settle my estate. I desire that item 23d be paid in one sum upon the dos-' ing up of my estate. That all items except the 1st, 9th and 23d be paid or set aside for the purposes heretofore mentioned at the convenience of my executors and that no property shall be sold to pay anything, except as heretofore provided. All other dispositions of any property, real, personal or mixed except as heretofore set forth under this will to pay the different bequeaths and set aside the funds mentioned herein shall be at the convenience and judgment of my executors, both as to disposition and payment.
“D. During the five years that my executors may have to hold said real estate I shall expect them to rent it to the best possible advantage, keeping the premises and buildings on the same at the time of my decease in as good condition and repair as they possibly can. In case a barn or other buildings, except dwelling, should be destroyed they shall have the right to replace the barn at a total expense not to exceed one thousand dollars out of any funds they may have. In case the insurance should be insufficient or it should not be insured, but I desire that my executors should keep them insured in the Farmers’ Mutual of Gratiot and Clinton counties or some other good mutual or stock company.
“I give my executors full power in the premises for the best interest of said estate, but under no circumstances shall they mortgage or encumber said estate, but may take a mortgage on the sale of said estate.
“E. I have herein remembered all my relation that I know about. For many years the foreign missionary work of the Methodist Episcopal church has been of great interest to me. I have no wife nor children and my father and mother have long ago passed to the other world and I have for a long time had in view the leaving of nearly all of my property as set forth in the 23d bequeath.
“I know the financial condition of my brothers and sisters and their children heretofore mentioned and this will is just as I want it.
“F. As I have for. many years lived either entirely alone or with people to whom I am not related it is my will that upon my decease my executors hereinafter named shall have charge of my remains or such persons as they shall designate. It is my desire that my remains be buried in the lot my mother is buried in, in the cemetery known as the Pritchard cemetery in said township of Sumner, in the county of Gratiot, and State of Michigan, and that there shall be erected within one year after my decease by my executors a marker over my grave with a suitable inscription on and on the monument on said lot, if at that time there is a place for the same.”

The will also contains the following:

“And I desire that said executors named should be trustees under the will when the estate is closed. I ask that the courts that they account to shall allow them their cash disbursements and what is lawful and right for their services in the settlement of this estate-as special administrators and executors and as trustees under the will thereafter.”

We quote from the brief of the plaintiffs:

“The theory upon which plaintiffs filed and claim the right to maintain their bill in this case as shown by their bill of complaint is as follows:
“1. That as to the eighty acres of land which is claimed to have been deeded by Lafayette Peters to his brother, Abner Peters, on February 24th, 1914, the board of foreign missions renounced the devise in its favor and therefore if that deed is voidable as claimed by the plaintiffs then that eighty acres descended to the next kin of the deceased and these plaintiffs, taking a part of it by inheritance, have a standing to attack that deed and the subsequent transfers of that property.
“2. That Lafayette Peters was not a mentally competent person and was in fact in a state of coma immediately preceding death at the time that the deed of February 24th, 1914, is alleged to have been executed and that therefore the deed ought to be set aside.
“3. That as to the eighty acres of land which remained undisposed of at the time of the death of Lafayette Peters (and also as to the other eighty acres of land if the board of foreign missions should attempt to claim it now), the will violated the statute against perpetuities and that violation is not saved by the provisions of Act No. 122 of the Public Acts of Michigan of 1907, and amendments thereto.
“4. That as to the will itself it does not purport to vest the title to the lands referred to in said will in any person or persons prior to the time provided for therein as the time of sale and division of the proceeds thereof, and therefore, that the will in question is void as to all of the lands described therein.
“5. That the proceedings in probate court touching the sale and disposal of that remaining eighty acres of land were and are without jurisdiction and void.
“6. That the main or whole purpose of the will in question was to bestow the bulk of the property upon the board of foreign missions and that because of the failure of that purpose the entire will should be set aside and the property pass to the heirs-at-law of the deceased.”

It is the claim of defendants that the demurrer and the motion to dismiss the bill of complaint should have been granted for the following among other reasons:

“1. Because the order and decree admitting the last will and testament were valid * * * and that said order and decree stand unreversed and unappealed from and the subject-matter of this suit is therefore res adjudicata.
“2. Because the gift, grant and bequest of the rest, residue and remainder of the said estate were made for religious, educational, charitable and benevolent purposes which said purposes were authorized by law and made in compliance with such laws. * * *
“6. Because said plaintiffs as heirs at law of said deceased would take no right, title or interest in the land deeded by said deceased during his lifetime to his brother Abner Peters, whether said deed was valid or invalid as the defendant, the board of foreign missions of the Methodist Episcopal Church, the residuary legatee, would take all interest'in and to said land so deeded and the right to attack the validity of said deed.
“7. Because it appears from said bill that the defendants, the executors named in said will, were duly and legally appointed by the probate court of Gratiot county, which had jurisdiction of the estate of said Lafayette Peters, deceased, that they duly qualified and accepted said trust and were entitled to the possession of said estate for purposes of administration.”

In our view of the case it will not be necessary to discuss all of the very interesting legal questions so ably argued by counsel. In Foster v. Stevens, 146 Mich. 131, it was said in substance that the intent of the testator is the cardinal rule in the construction of wills, and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail, and that such a construction should be adopted as will give effect if possible to every clause and meaning to every word, if it can be done without violating the general design of the instrument or any well-settled rule of law.

In Clark v. Mack, 161 Mich., at p. 549, Justice Stone, speaking for the court, said:

“When a will fairly construed is susceptible of two constructions, one of which would render it inoperative, and the other give effect to it, the duty of the court is to adopt the latter construction. 30 Am. & Eng. Enc. Law (2d Ed.), p. 667, and cases cited in note. In Den v. Crawford, 8 N. J. Law, 97, Ewing, C. J., in giving the opinion of the court, said:
“ ‘It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless that all effect should be denied to a will.’ ’’

By consulting the will it will be seen that the bequest made to the Elwell Methodist Episcopal Church by paragraph 22, if certain things are not done by that church, is to go to the board of foreign missions. It will also be noticed that the bequests made to the residuary legatee in paragraph 23 contains no suggestion that it shall go in some other direction if the desires expressed in the lettered subdivision of that paragraph are not carried out. See Scott v. Roethlisberger, 178 Mich. 581.

' But it is urged that the instructions and desires expressed in the lettered subdivisions of paragraph 23 are' in violation of the statute against perpetuities and that Act No. 122 of the Public Acts of 1907, as amended (3 Comp. Laws 1915, § 11099 et seq.), does not save the bequest. At the time this case was decided in the court below Act No. 122 had been considered by this court in the case of Loomis v. Mack, 183 Mich. 674, where the act was held to be constitutional by a divided court. The trial judge did not consider that decision, because it was made by a divided court, as controlling the instant case. Later the act was before this court in Re Brown’s Estate, 198 Mich. 544, where, by the unanimous opinion of the Justices, the act was held to be constitutional. The last-named case is controlling of the instant case. The demurrer should have been sustained and the bill of complaint dismissed.

The decree is reversed and one may be entered in this court dismissing the bill of complaint, with costs to the defendants.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    TUTTLE v. DOTY.
    1. Deeds — Reformation of Instruments.
    On a bill to reform and correct a deed from plaintiff to her daughter, the decree of the court below excepting from the operation of said deed the interest of a grandson, in which grantor had only a life estate, will be affirmed, on appeal.
    2. Same — Deuyery—Validity.
    As to the interest of grantor to which' she had an absolute title, evidence held, to establish by a clear preponderance, that the deed was knowingly made and its delivery authorized by grantor, and therefore valid.
    3. Gifts — Mistake—Consideration.
    Where certain certificates of stock were given by plaintiff to her daughter without any consideration, and both were proceeding upon the theory that they had been stolen by a grandson of plaintiff, which later proved to be unfounded, the decree of the court below ordering the surrender of said certificates will be affirmed.
    Appeal from Kent; Searl, J., presiding.
    Submitted April 23, 1918.
    (Docket No. 58.)
    Decided September 27, 1918.
    Bill by S. Porter Tuttle, executor of the last will of Mary G. Pearsall, deceased, against Fannie E. Doty, individually and as special administratrix of the estate of Payson M. Doty, deceased, to set aside a deed and to enjoin the disposition of certain corporate stock. From the decree rendered, all parties appeal.
    Affirmed.

      Taggart & Kingston (E. A. Maher, of counsel), for plaintiff.

      Charles E. Ward, for defendants.
   Moore, J.

“In the- first of the above entitled cases, complainant filed her bill in her individual capacity praying that a certain deed purporting to have been executed by' her on January 23d, 1899, to defendant Fannie E. Doty be set aside and also for an injunction against both defendants preventing them from disposing of certain bank stocks, and telephone stocks which had disappeared and which she charged were wrongfully in the possession of said defendants.
“An amendment to this bill subsequently filed charges that defendant Fannie claimed to have certain written transfers of said stock and that complainant had no knowledge of ever having executed the same, but that if she did, it was because of undue influence and fraud and conspiracy upon the part of the said defendants.
“To this bill defendants answered that said deed was made voluntarily and delivered to defendant Fannie and denying all charges of fraud, undue influence and conspiracy and alleging that the tangible evidence of ownership of said stock was in the hands of said defendant Fannie.
“The issue thus made came on to be heard before the court and after said hearing and before decision thereon it was stipulated that the two cases should be heard together and thereafter testimony was taken in the other case.
“In this latter case complainant who filed her bill in her individual capacity and as executrix of the estate of Orlando K. Pearsall, charged substantially the same facts as in her former bill and addition thereto other fraudulent acts upon the part of defendants Payson M. and Fannie E. Doty, and also named as defendants Orland H. Pearsall and Harvey E. Hill and Sarah E. Hill.
“In the last case a supplemental bill was afterwards filed by complainant, answers were filed by defendants, Payson M. and Fannie E. Doty,,and Orland H. Pearsall, and a cross-bill and a supplemental cross-bill filed by Orland H. Pearsall to which answers, were also filed. The defendants Harvey E. and Sarah E. Hill, disclaimed any interest in the property and no claim is made that they have any.
“In the first case complainant sets up that she had made another deed to her daughter Fannie E. Doty covering what is known as the property on Smith’s Addition, but she did not in that case ask to have that deed set aside or annulled in any way. But in the last case she charges that this deed was made under a mistaken notion upon her part that it was her duty to pay all of a certain paving tax, whereas she being a life tenant as to one-half the property-it was her duty to pay half only of said tax and that the deed was made in order to raise money to pay said tax and she prays that an accounting may be had of the moneys paid by the Dotys on account of said taxes and of the rents received by them and that this deed also may be set aside. '
“Orland_ H. Pearsall, admitting all the allegations of complainant’s bill, prays in his cross-bill for the same relief as to his interest and for the removal of his mother, Fannie E., as trustee under the will of Orlando K. Pearsall and for relief as to his interest in such of the stocks as belonged to the estate.
; “Complainant, an old lady of the age of 89 years, ¡is the widow of Orlando K. Pearsall, who died May 9, 1891, leaving a will by which he disposed of all of the property involved in these cases except certain of the stocks which belonged to the complainant in her' own right. This will provided that his entire estate, real and personal, should be disposed of as follows: One-half to his widow absolutely and the use of the other half during her lifetime; and after the death of the widow the daughter, Fannie E. Doty, to receive one-half of this remainder, being one-quarter of the estate, absolutely, and the other quarter of the estate to be held in trust by Fannie E. for the use and benefit of Orland H., a son of Fannie E. by a former marriage, for and during his life, and after his death to go to his children or grandchildren, if any, and if none, then to his mother, if living, and if not, then to her children or grandchildren, if any, and if none, then to the then living brothers and sisters of the testator.
“The will named the widow as executrix and one John T. Gould (since deceased) as executor and empowered them to sell and convert into money all of said real and personal property in order that the widow might enjoy the income therefrom.
“In disposing of the questions presented, it will be necessary to consider the case first as to the property owned individually by complainant and second that which still remained as part of the estate.
“As to the stocks owned by complainant in her own right and as to her half of the other stocks and of the real estate coming to her absolutely under the will, she had full power of disposal and if she voluntarily and without exercise of undue influence or fraud gave it away and made such delivery of the deed and evidences, of title as are sufficient in law, then she cannot be heard to complain in a court of equity.
“The evidence shows that some time prior to the making of any of these deeds and other papers the complainant became alarmed because of the fact that a book agent had secured her signature to some paper which she thought might turn out to be a note or a paper upon which some claim could be made against her property, and while there is no evidence to warrant the conclusion that the book agent transaction was the result of a plot to so work upon the mind of this old lady as to bring about the first conveyance to the daughter, yet in view of many other peculiar things which afterwards happened, there is at least a chance for a strong suspicion to that effect. But courts cannot decide cases on suspicions, and in this case the evidence shows that this old lady while mentally competent, and shrewd beyond the average woman of her years, voluntarily executed the first deed after being cautioned by Mr. Hamilton not to do so because of any danger from any signature of hers ¡secured by the book agent; that she did not at the jtime make any delivery of it beyond recall and that afterwards she voluntarily ordered Hamilton, in whose custody it had been left, to deliver it to her daughter, Fannie E. Doty. The deed was read over to her and she fully understood its contents. She retained the use of the property during her lifetime and being then on friendly terms with her daughter placed the title to it exactly where she then declared she wanted it to go. As to this conveyance so far as it affects her individual interest, relief will be denied to complainant.
“But she never ordered the bill of sale to be delivered and the circumstances under which the transfer of the stock was made are such that I think a court of equity could grant relief. It is quite evident that complainant would not have given over this stock to her daughter except for the fact that she believed that it had been stolen from her by the grandson. This the daughter knew.”

We find in the record but one decree. It reads in part as follows:

“This court by virtue of the authority therein vested doth order, adjudge and decree that the certain deed of conveyance bearing date of the 6th day of December, A. D. 1898, and which was recorded in the office of the register of deeds for the county of Kent, on the 18th day of January, A. D. 1909, in liber 371 of deeds, on page 613, be so corrected and reformed as to except and reserve from the operations of said deed, the use, rents and profits of the premises therein described, during the lifetime of said complainant. ❖ * ❖
“It is further ordered, adjudged, and decreed that said deed of conveyance and the record thereof be further reformed and corrected so that the same shall apply to and operate as a conveyance only of the remainder in fee of an equal undivided one-half of the premises above described after the expiration of the life estate of said Mary G. Pearsall in said premises, such equal undivided one-half of said premises being that portion of the same given to said Mary G. Pearsall by the second clause of the will of Orlando K. Pearsall, deceased, in the following terms, viz.: * * * Except as above decreed the title of Fanny E. Doty under said deed is hereby confirmed to an equal undivided one-half interest in fee of said premises, _ subject to the life estate of Mary G. Pearsall therein as aforesaid.
“It is further ordered, adjudged and decreed that the defendant Fannie E. Doty deliver and surrender up to the complainant Mary G. Pearsall * * * certificate No. 1538, issued by the Citizens’ Telephone Company of Grand Rapids, Michigan, for 100 shares of $10 each; certificate No. 685 issued by the Grand Rapids National City Bank to said complainant for ten shares of $100 each of its capital stock, said complainant being the sole owner thereof; also that said Fannie E. Doty deliver and surrender up to complainant, Mary G. Pearsall, as executrix of the will of Orlando K. Pearsall upon her filing with the probate court for Kent county a bond in the sum of $2,500 with sureties to be approved by the probate judge of said county certificate No. 75 for 15 shares of $100 each, and certificate No. 144 for five shares of $100 each issued by the Grand Rapids National City Bank to Orlando K. Pearsall.”

Since the decree Mary G. Pearsall and Payson M. Doty have died. Their deaths have been suggested of record. Both parties appeal from the decree.

The will of Orlando K. Pearsall had the following provisions r

“Second: I give and devise, will and bequeath unto my said wife one undivided one-half of all the rest, residue and remainder of my estate, real, personal and mixed of every name, nature and description of which I may die seized or possessed, the same to be held and enjoyed by her and her heirs and representatives absolutely forever.
“Third: The remaining one-half of my said real and personal property I give, bequeath, will and devise unto my said wife, the same to be held and enjoyed by her for and during her natural life.
“Fourth: After the death of my said wife, I give and bequeath, will and devise, to my daughter Fannie E. Doty one undivided one-half of all the real and personal estate hereinbefore given to my said wife for and during the life of my said wife; the same to be held by my said daughter absolutely and to her heirs and legal representatives forever.
“Fifth: After the death of my said wife, I give, devise and bequeath unto my said daughter the other undivided one-half of the real and personal estate hereinbefore given to my said wife during her life; the same to be held in trust by my said daughter for the use and benefit of my grandson Orland H. Pearsall, for and during his life, and after the death of my said grandson Orland H. Pearsall it is my will that said shares so as above said willed in trust to my said daughter, rest absolutely in the children or grandchildren of my said grandson.” * * *

These provisions of the will are not ambiguous, and it is clear Mrs. Pearsall had' no more right to attempt to alienate the interest of Orland H. Pearsall in his grandfather’s estate than she would to alienate the interest therein of the daughter Fannie E. Doty, and the decree of the circuit judge in that regard is affirmed.

Did Mrs. Doty acquire by virtue of the paper that was executed in January, 1899, the interest Mrs. Pearsall had in the real estate given to Mrs. Pearsall by the will? This presents questions of fact. Mrs. Pearsall admits she signed a paper which was acknowledged before Charles S. Hilton, but denies she supposed it was a deed and she denies her signature to the deed which is in evidence and says that if it is her signature it was so folded when she signed it that she could not see that it was a deed. She admits on her cross-examination that the object of making the paper was to prevent the agent who had interviewed her and also Mr. Harper, the first husband of her daughter, from getting any interest in her property. She also testified that she signed but one paper which she acknowledged before Mr. Hilton. When Mrs. Pearsall testified she was past 80 and a number of years had intervened since she executed the paper before Mr. Hilton. This may account for her testimony. The deposition of Mr. Hilton was taken in Seattle 12 years after the paper was acknowledged before him. At the time he gave his testimony he was 69 years of age. We quote from his testimony:

"When I arrived at Mrs. Pearsall’s home, Mr. and Mrs. James L. Hamilton, neighbors of Mrs. Pearsall, were there. Then Mrs. Pearsall stated to me what the purport of this paper was in the presence of Mrs. Doty; that she was fearful that Mr. Harper, Mrs. Doty’s former husband, would cause her some trouble and that she was making this agreement with her daughter, Mrs. Doty, to protect her and Orley Pearsall, her son, from Mr. Harper. I did not read over the paper that they wished to have me take acknowledgment of. Mrs. Pearsall had the paper in her hand while she was talking and referred to it while doing so. As I now remember it, the paper had been drawn up and was signed and witnessed before I saw it, and was in Mr. Hamilton’s handwriting as far as I could see. I then took Mrs. Pearsall’s acknowledgment to the paper in the presence of Mr. and Mrs. James L. Hamilton. I did not have the paper in my hands for the purpose of examining it and.only had it long enough to take the acknowledgment. I could not see the whole of the contents of the paper signed by Mrs. Pearsall and acknowledged by her before me, as notary public. The paper was not unfolded except enough to enable me to see the signature of Mrs. Pearsall and the jurat or acknowledgment. I never saw the paper except at the time of taking the acknowledgment. After the paper was executed I sat down. A little general conversation followed. As I recollect, Mrs. Pearsall then stated that the paper which she had acknowledged was to be left in the hands of James L. Hamilton and not to be effective until Mrs. Pearsall’s death. That Mr. Hamilton was not to deliver it to any one except in the presence of both Mrs. Pearsall and Mrs. Doty, and by their joint consent, nor unless both should be present and agree to it. From the conversation of both Mrs. Pearsall and Mrs. Doty at that time, I understood that the execution of this paper by Mrs. Pearsall was not to affect Mrs. Pearsall’s right, title or interest in the property mentioned in this paper and Mrs. Doty and Mrs. Pearsall each so stated. The paper was not read over to Mrs. Pearsall in my presence before she signed it. She was not very well at the time. She had been very sick but was recovering. She gave as one of her reasons for executing this paper, the fact that she was in poor health and thought best to attend to the matter. The paper was in Mrs. Pearsall’s hands when I left the house.”

The paper which Mrs. Pearsall acknowledged before Mr. Hilton was a warranty deed on a printed blank in common use and the certificate of acknowledgment signed by Mr. Hilton was in the usual form.

One of the witnesses to the deed was James L. Hamilton. His version is in part as follows:

“A. When we reached Mrs. Pearsall’s she began telling me about her having signed a paper with some book agent, concerning which she seemed to be considerably worried; she thought they might turn up in some way as a note or something against her, and she said that she had these papers that she wished to execute for the purpose of shutting off or stopping any possible chance of her sustaining a loss in that direction and explained it in that way. I told Mrs. Pearsall at the time that if she was about to execute these papers in fear of any trouble that she would have on account of having signed something that she didn’t exactly know what it was with the book agent, that I would certainly advise her not to sign it; and she replied that she wanted to sign them, it was carrying out her wishes in the matter and that this was only incidental. That, in substance, is the conversation.
“Q. In other words, that her wish, independent of this matter, was to have it this way?
“A. Yes. My advice to her was under no circumstances to sign those papers with any such thought in her mind, if that was the motive.
“Q. While Mr. Hilton was there, were you there when Mr. Hilton came?
“A. I was.
“Q. Was there any talk about this matter in Hilton’s presence and hers?
“A. There was.
“Q. What was the talk there when Hilton was there?
“A. I recited to Mrs. Pearsall practically — or to Mr. Hilton practically the conversation between Mrs. Pearsall and I, and told him what my advice to Mrs. Pearsall 'was in the matter, and he says, ‘That is right; there will not be one chance in a thousand of any difficulty.’ * * *
“Q. What was done with these papers, take the will and the bill of sale and the deed, finally?
“A. They were given in my possession to be cared for, taken by me and put in my safe at the office.
“Q. Who gave them to you?
“A. Mrs. Pearsall.
“Q. Did she state any reason why she wanted you to take care of them rather than some one else?
“A. I don’t think so. I guess it was mutually agreed that I should be the custodian of the papers.
“Q. You were to take them and take care of them?
“A. Yes.
“Q. Did you hear anything more from Mrs. Doty or Mrs. Pearsall about the papers for some time after that?
“A. Some time after that Mrs'. Hamilton told me that Mrs. Doty had called her up on the telephone and wanted I should deliver to her the deed. I told Mrs. Hamilton that I would not deliver the deed to any one, to either party, without the consent of both parties and that before delivering the deed I would see Mrs. Pearsall and see that it was her wish I should do so.
“Q. Now what did you do about seeing Mrs. Pearsall?
“A. That night after dinner I went to Mrs. Pearsall’s residence. She came to the door; I told her that Mrs. Doty had requested that I deliver to her the deed, and that I had told them that I would not do it without her consent, and asked her if it was agreeable to her that I do it and she said, ‘Yes, let Fannie have the paper.’ The next day — the paper remained in my safe; the next day I brought it home and delivered it to Mrs. Doty.
“The Court: Can you give the date of that? °
“Q. You have stated there that Fannie wanted the deed delivered. You used the term ‘deed’?
“A. Yes.
“Q. To distinguish it from the other paper?
“A. Yes.
“Q. Any question about that in your mind about speaking of it as a deed? :
“A. No, sir; no question at all. I wanted Mrs. Pearsall to know what the paper was and I told her what it was.”

Mrs. Hamilton corroborated the material parts of his testimony. Mrs. Pearsall says she authorized him to deliver to Mrs. Doty the paper that was acknowledged before Mr. Hilton, but that she did not then and never had supposed it was a deed.

The original papers are before us. The deed has a number of revenue stamps which are initialed by Mrs. Pearsall. An inspection of the papers and a careful reading of this voluminous record establishes by a clear preponderance of the evidence that Mrs. Pearsall made the deed in question, knowing what it was, and authorized its delivery to Mrs. Doty. We are also satisfied that when the deed was executed a life lease was given back to Mrs. Pearsall.

The will and bill of sale never passed out of the possession of Mr. Hamilton by direction-of the parties, and no property interests were affected by them.

We come now to consider the stocks transaction. There is no doubt the conduct of Orland H. Pearsall greatly disturbed his grandmother. A diamond ring had been stolen, which he*afterwards confessed he had taken. Other articles had disappeared. Mrs. Pearsall. thought her stocks had been stolen by him. Mrs. Doty offered in evidence an exhibit which she says was written by her mother reading:

“Grand Rapids, July 31, ’06.
“I have had stolen from my desk in my home one $1,500 stock certificate No. 79, one $500 stock certificate No. 144 of the Grand Rapids National Bank, made to my husband Orlando K. Pearsall; also one $1,000 certificate No. 685 of the same bank, made out in my own name, Mary G. Pearsall; one $1,000 stock certificate of the Citizens’ Telephone Company. I had intended to give to my grandson Orland H. Pearsall, my personal bank stock $1,000; also my $1,000 of the telephone stock, but of late his conduct has been such 1 have changed my mind, and when these certificates are found I give them all to my daughter, Fannie E. Doty.
“Mary G. Pearsall.”

The following exhibit was offered in evidence by Mrs. Doty:

“Grand Rapids, July 31, 1906.
“Dear Mother:
“You having today sold to me, love and affection and one dollar the consideration, certificate of stock 1538 of the Citizens’ Telephone Company for $1,000; also certificates of stock No. 79 for $15,000; No. 144 for $500, No. 685 for $1,000 of the Grand Rapids National Bank, and Nos. 79 and 144 being in the name of my father, Orlando K. Pearsall, and No. 685 and 1538 being in your name, the above-mentioned certificates having been stolen from you, as soon as recovered or their duplicates are to be delivered to me; I hereby promise and agree to pay you during your lifetime any and all dividends that may be paid on such shares of stock for your personal use and benefit.
“Fannie E. Doty.
“To Mrs. Mary G. Pearsall.
“Accepted, Mary G. Pearsall.”

Notices were given to the telephone company and the bank in which it was recited that the certificates had been stolen.

Mrs. Doty testified, that she and her mother both supposed they had been stolen and the inference may be fairly drawn from her testimony that they thought Orland H. Pearsall had taken them. On or about July 31, 1906, Mrs. Pearsall procured a will in which she had given these certificates to Orland H. Pearsall and the will was burned in the presence of Mrs. Pearsall and Mrs. Doty. As a matter of fact the certifi cates had not been stolen, but upon an occasion when Mrs. Pearsall was going to California for the winter she had delivered them for safe keeping to Mrs. Doty who put them in her private box in the bank. It is clear her mother had forgotten this and Mrs. Doty testified she had. Later Mrs. Doty found the certificates in her box and produced them on the trial. It is not to her credit that when she found them she did not inform her mother they had been found. Mrs. Doty paid nothing for these stocks, and if her testimony was true her mother and herself were both proceeding upon the theory that they had been stolen when they were given to her. The record indicates that if Mrs. Pearsall had known the facts she would have retained the certificates of stock.

The decree of the court below in regard to the stocks should be affirmed. In view of the fact that we find a life lease was given and the further fact that Mrs. Pearsall is dead, we think it unnecessary to discuss the question raised by counsel whether the trial judge could, as he attempted to do, reform the deed by incorporating therein a life lease. As both parties have appealed no costs in this court will be given to either of them.

The decree is affirmed.

Ostrander, C. J., and Bird, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.