text:
    CORBY v. TROMBLEY.
    Bill to Set Aside Probate of Will — Laohes.
    Delay by an heir for nearly 20 years after learning of the probate of a will constitutes such laches as will prevent him from maintaining a suit to set aside the will on the ground that the testator was incompetent to make it, and that its allowance was obtained through fraud.
    Appeal from Wayne; Hosmer, J.
    Submitted June 11, 1896.
    Decided July 21, 1896.
    Bill by Adelaide Corby against Fillis Trombley and others to set aside the probate of a 'will. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Atkinson & Atkinson, for complainant.

      De Forest Paine, for defendants.
   Long, C. J.

This bill was filed to set aside the probate of a will, and the order establishing the same, made and entered May 21,1872, and to declare the will invalid. The will was made by Robert Trombley, who died August 12, 1871, leaving surviving him his widow, Fillis Trombley, and seven children, to wit, Charles Trombley, who resided in the city of Detroit; Robert Trombley, Alexander Trombley, Fillis Pischea, Mary Sophia Poupard, Catherine Beaupray, and the complainant, Adelaide Corby, all residing near together in the town of Grosse Pointe. The reasons given by the complainant why the will, and. the order probating it, should be set aside, are:

1. That at the time of the" making of the will the testator was insane, and therefore incompetent to make a valid will.
2. That no legal notice was ever given of the hearing of the petition for the probate of the will.
3. That the widow and Robert and Alexander Trombley entered into a conspiracy for the purpose of keeping all knowledge of the making of the will from the complainant, and of- defrauding her of her interest in the property by having probated a will which the testator was incompetent to make.
4. That, while the will was probated in May, 1872, the complainant had no notice or knowledge that a will had been made by her father until some time in the summer of 1892.

The answer avers the competency of the testator to make a will, admits the making of the will, the making of the order admitting it to probate, avers that proper notice was given for the probating of the will, denies that complainant had no knowledge .of the making of the will until the summer of 1892, and avers that complainant had notice and knowledge that the will was in existence soon after it was probated.

The will gave to the widow the whole estate for use during her natural life, and at her decease gave to the sons Robert and Alexander the part of the farm lying north of the River road, in the township of Grosse Pointe, to be equally divided between them. The balance of the farm, all lying south of the River road, was given after the mother’s death to all the children, except Charles, to be divided equally among them. To Charles, who was a son by a former marriage, he gave the sum of one dollar. Upon the hearing in the court below a decree was entered dismissing complainant’s bill, and complainant appeals.

■ The claims made by the complainant are substantially those set up in the bill and insisted upon in the court below. After a careful examination of the record, we have concluded that it is necessary to discuss but one question. While the complainant attempts to excuse her laches by the claim that she had no notice or knowledge of the making of the will until 1892, we are satisfied that this notice came to her many years earlier. The mother testified that, at the time the will was probated, all the children were present, except the complainant and the son Charles, but that Charles was present upon another occasion while the proceedings were being taken.

It appears that, about two years after the probating of the will, some talk was had between the daughters as to a division or sale of that portion of the farm lying south of the River road, and which had been given to all the children, except Charles. They were unable to agree upon a division, and it was concluded to make a sale of that to a Mr. Moran. The widow, testifying in regard to that transaction, stated:

“ I was at Mrs. Corby’s house at onetime, I remember, and, on arriving at the house, Mr. Charles Q-. Moran was there, and left. Later on in the evening she sent for Mr. Rae, who came, and she told him that they had talked the thing over, and that Mr. Moran had avised her and told her that Robert Trombley was not capable of making a good will, and it ought to be broken, or it could be broken, and that her husband, Johnny, had told her (Mrs. Corby) that the will was all right, and Mr. Trombley had a right to do what he pleased with his property. * * * That was the last time I had any conversation, at which the contest of that will was spoken of, with Mrs. Corby. She seems to have been passive, — neither was siding with one side of the children, nor the other; passively satisfied with the result.
Q. When, at any time, did Mrs. Corby ask you to give her her share in the property ?
“A. I don’t recollect, exactly. It may be one year, or it may be more. But Mrs. Corby asked me, inasmuch as their share was small, — she asked me to consent to sell what was coming to them; that is, south of Jefferson avenue.
Q. Was that before or after the sale to Mr. Moran?
A. Before. They could not sell without my consent.”

The part of the farm lying south of the River road was sold, and the deed joined in by all the children except Charles, who took no interest under the will.

Robert Trombley also testified that, about two years after the probating of the will, complainant came down to her mother’s house, where he was living, and asked his mother to give her her share in the estate; that at another time she came, and said: “The boys have the use and privilege of theirs. Therefore we ought to be entitled to our share of the place. We could sell it, and buy somewhere else with that money.” That that was before the sale to Moran.

While these conversations, as related by Robert and his mother, are contradicted by the complainant, we are satisfied from the surrounding circumstances that she knew within at least two years after the will was probated that it was in existence, and that she was making claim for her share under it. The parties all resided within two or three miles of one another. They were all married, and had families of their own, except the youngest daughter. Robert and Alexander continued to live upon the farm with their mother, made large improvements, and, with the consent of the mother, made a division, each taking one-half. Complainant, during all these years, lived within three miles of them, and as near to the other children. They frequently visited back and forth, and it would be a most remarkable circumstance that in all that time, from 1872 to 1892, she never learned that a will had been made by her father, when in the meantime she had joined in a deed for the sale of that part of the land lying south of the highway, in which she had an interest, according to the will, and had received her share of the proceeds. It is true, as contended by her counsel, that at the time the will was probated she and her family had the smallpox, and were unable to be out for several months, and' that no personal service was made upon her; but we cannot avoid the conclusion, from the testimony and the circumstances set forth, that she must have known of the making and the probating of the will at a very early date after the proceedings were had in the probate court. Therefore for nearly 20 years she has rested upon her rights, and at this late day, after many of the witnesses who probably knew the condition of the testator’s mind, and his competency to make a will, have died, now seeks the aid of a court of equity to acquire rights which she should then have asserted. We think, under the circumstances of this case, the complainant has not moved within a reasonable time. The case falls within the rule of Campau v. Van Dyke, 15 Mich. 371. As was said in that case:

“Sound public policy, and a just regard for the stability of private rights, require that the solemn judgments and decrees of courts, affecting the rights of property, shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached, after any considerable period of time, during which the parties have been allowed to rely upon them, * * * or the evidence by which they might have been sustained has been lost. * * * We think the only just rule which can be laid down upon this point is that such a bill must be brought within a reasonable time, having reference to the nature and all the circumstances of the particular case. * * * He must show himself prompt and eager for redress, and any delay must be accounted for and excused.”

This language may well be applied to the present case, where the complainant, by her bill, charges the procurement of an invalid will for the purpose of defrauding her out of her rights, and where the existence of the will and its probate have been known to her for nearly 20 years.

The court below properly entered a decree dismissing the bill. That decree will be affirmed, with costs.

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


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    RABIDON v. MUSKEGON CIRCUIT JUDGE.
    Infants — Action by Next Friend — Security for Costs.
    2 How. Stat. § 8124, providing that, before any process shall be issued in the name of an infant who is sole plaintiff, a “competent and responsible” person shall be appointed as next friend for the infant in such suit, who shall be “responsible for the costs,” does not mean that the person so appointed must be financially responsible to pay the costs, but only that he shall be liable to respond therefor the same as though he were the party in interest; it being necessary to construe said section in connection with 3 How. Stat. § 8989, under which it is discretionary with the court to order security for costs in such cases.

      Mandamus by Barney Rabidon to compel Fred J. Russell, circuit judge of Muskegon county, to vacate an order requiring the filing of security for costs.
    Submitted June 17, 1896.
    Writ granted July 21, 1896.

      Macdonald & Marr, for relator.

      Frank H. Smith, for respondent.
   Long, C. J.

Louis Rabidon, by Barney Rabidon, his next friend, commenced suit in the Muskegon circuit against the Chicago & West Michigan Railway Company. Defendant in that suit pleaded the general issue, and subsequently entered a motion for security for costs, which motion the court granted. This is an application for mandamus to direct the respondent to set the order aside.

A return has been made to an order to show cause. In the return the respondent sets out the petition for the appointment of next friend, the consent of the next friend to so appear in the suit, and the order of appointment. The respondent also returns that at the time of the appointment no showing was made of the responsibility of the relator; that it appeared by the declaration by which the suit was commenced that Louis Rabidon was an infant of the age of four years. It appears that a showing was made on this motion that Barney Rabidon was wholly irresponsible financially, and, on his behalf, a showing that he was wholly unable to furnish such security, and, if such security should be required, the suit could not be prosecuted. In the return the respondent states:

“After duly considering the matter, I was of the opinion, and held, that the statute (section 8124, 2 How. Stat.) contemplated that the next friend of an infant who brings suit must be a responsible person, — such a person as would be 'responsible to the defendant for the costs of said suit; that this statute, if taken alone, would leave no discretion in the court, but the case must be dismissed on a showing that the next friend was not responsible; but as section 8989, 3 How. Stat., provides that, when a suit is brought in the name of an infant whose next friend has not given security, the court may require the plaintiff to give security for costs, that the two sections, taken together, contemplate that when it is shown to the court, as was done in this case, that the next friend is not a responsible person, the court must, if the case is to continue, require the plaintiff to file security for costs.”

We think this is not the true intent and meaning of section 8124, 2 How. Stat. This section provides:

‘ ‘ Before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as next friend for such infant in such suit, who shall be responsible for the costs thereof.”

The statute does not mean that the next friend shall be financially responsible to pay costs, but that he shall be answerable or liable to respond therefor; that is, that he may be held for the costs, the same as though he were the party in interest in the suit. The legislature must have given this construction to the statute, or it would not have been found necessary to enact section 8989, 3 How. Stat., which is an amendment of section 8989, 2 How. Stat. This section, as it originally stood, provided that—

‘ ‘ When a suit shall be commenced in any court * * * (4) In the name of any infant whose next friend has not given security for costs, — the defendant may require such plaintiff to file security for the payment of the costs that may be incurred by the defendant in such suit.”

By Act No. 143, Pub. Acts 1889, this section was amended, and now stands as section 8989, 3 How. Stat., and provides in such case that—

‘ ‘ The court * * * may require such plaintiff to file security for the taxable costs of the defendant in such suit, for which an execution may issue.”

It will be seen that, before the amendment of 1889, the defendant had a right to demand security for costs from the next friend of the infant, but, as amended, the question is now left to the discretion of the court. There would have been no necessity for either act, if the contention of counsel for respondent is correct, so far as affecting the rights of the defendant; for if the next friend must make a showing of his financial responsibility to the court before his appointment, and could be appointed only when that fact was established, it would be strange if the legislature should, by the amendment of 1889, again provide for the settlement of that question, and leave it to the discretion of the court to determine whether or not security should be given.

The court below, having based its ruling upon the interpretation of the statute, did not pass upon the merits of the case. The order must be vacated, and the court is directed to pass upon the merits of the motion.

The other Justices concurred.


author: Grant, J.

text:
    MYERS v. HINDS.
    1. Bicycles — Negligence oe Rider.
    A bicycle is a vehicle, and is to be so regarded in determining the degree of cafe to which the rider should be held in the use of the public highways.

    2. Same — Evidence—Burden oe Proof.
    A bicyclist has the burden of disproving his negligence when he rides up behind another, who is walking where he has a right to walk, and, without giving any warning, strikes him with his vehicle.
    3. Same — Defenses.
    One who rides a bicycle down a narrow path beside the rqadway at the rate of five or six miles an hour, giving no warning of his approach, at a time when the path is occupied by many other persons going in the same direction, is not relieved from liability for running into a pedestrian by the fact that the accident was caused by his striking an obstacle, —at least if it does not appear that he was unable to see and avoid such obstacle by the exercise of due care.
    4. Evidence — Conclusiveness.
    Testimony that a witness thinks a certain fact to exist cannot be regarded as conclusively establishing the fact, unless no reasonable conclusion other than that stated by the witness can be drawn from the facts given as the basis for his belief.
    Error to Montcalm; Davis, J.
    Submitted June 17, 1896.
    Decided July 21, 1896.
    Case by Ethel Myers, an infant, by her next friend, against Henry H. Hinds, to recover damages for injuries sustained by a collision with a bicycle. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Plaintiff, a girl 14 years of age, was returning from a picnic in the country. She was walking down a hill carrying her little sister in her arms, in a path about a foot from the wagon roadbed, the path being wide enough for two persons to walk abreast. The defendant was riding down the hill on a bicycle in the same path. He came up behind the plaintiff, and struck her with his bicycle, knocking her down and inflicting a severe injury. She brings suit for negligence, alleging that he carelessly, improperly, and negligently rode, propelled, governed, and directed his bicycle against her. Upon the conclusion of the plaintiff’s evidence, the court directed a verdict for the defendant, upon the ground that he was not shown to have been guilty of negligence.
    Plaintiff had no warning of the approach of the defendant, who was riding at the rate of five or six miles an hour, until she was struck. He rang no bell, and gave no signal of his approach. She was in the exercise of her lawful rights, and was guilty of no negligence. Several others were walking down this path. One, a young lady, was walking in the same direction, and about four feet behind the plaintiff. She testified that she did not hear the defendant until he was very near her, when she heard a noise which she thought was made by the bicycle’s running over a stone or something. Immediately upon passing her, he struck the plaintiff. It was not clear from the testimony whether the defendant was upon the bicycle at the time he struck her, or whether he had fallen. Evidently the plaintiff, the defendant, and the bicycle went down at almost the same moment. Some of the witnesses testified that, after the fall, the defendant said that his bicycle struck a stone, which was the cause of the accident.
    The circuit judge stated his reason for directing a verdict for the defendant as follows:
    “I determine, from the undisputed testimony in this case, as a matter of law, that the collision was caused by his running over an obstacle, and that it is not shown to have been done by his negligence, — such negligence as the law would give the plaintiff a right to recover for. He had a right, in law, along the highway where he was, at the point he was, so long as he used the care and skill a man of ordinary prudence would have done; and no testimony is offered in this case that causes me to believe that, according to law, it is such negligence as shows that he was running at an unreasonable rate of speed.”

      A. A. Ellis, for appellant.

      Me Garry & Nichols, for appellee.

      With the case of Twilley v. Perkins, (Md.) 19 L. R. A. 632, is a note collecting the authorities bearing on the regulation of bicycle riding.

   Grant, J.

(after stating the facts). We think the •court was in error, and that the plaintiff’s evidence entitled her to go to the jury. A bicycle is a vehicle. Counsel for the defendant concede this, and the authorities so hold. Holland v. Bartch, 120 Ind. 46 (16 Am. St. Rep. 307); Mercer v. Corbin, 117 Ind. 450 (10 Am. St. Rep. 76); Taylor v. Goodwin, 4 Q. B. Div. 228. The question, therefore, is: What was the duty of the defendant, riding on- a vehicle, in passing a pedestrian going in the same direction ? His vehicle made no noise, and he gave no signal. Many others were walking in this narrow path. The roadbed for vehicles was open to him. If it be granted that he struck a stone or other obstruction, was the stone or obstruction such that he ought, in the exercise of due care, to have seen it, and avoided the danger? Was it such that the consequence of striking it must have been apparent to him? What efforts did he make to avoid the obstruction, if he saw it? When one passes another, both using bicycles and going in the same direction, it appears to be the rule that the one passing is liable if damage results without misconduct on the part of the one passed. Elliott says:

‘ ‘ The only rule of general application that can be laid down is that he who attempts to pass another going in the same direction must do so in such manner as may be most convenient under the circumstances of the case; and, if damage result to the person passed, the former must answer for it, unless the latter, by his own recklessnqss or carelessness, brought the disaster upon himself.” Elliott, Boads & S. 621, 622.

See, also, Ang. Highw. § 340; Knowles v. Crampton, 55 Conn. 336.

We think the court was in error in holding that the -collision was caused by defendant’s running over an obstacle. As already shown, the only testimony upon "this point was the statement of defendant, made just after “the accident, and the testimony of one witness that she thought he struck something; but she based this thought only upon the noise she heard. His own statement, made after the accident, is not evidence of the fact; it is hearsay. What the witness thought is not conclusive of the fact, unless no other reasonable basis exists for her thoughts or belief than the one she gave. But, even if this were so, it would not follow that defendant was relieved from liability unless the obstruction was such "that he could not see and avoid it by the exercise of due care. Nor do we think it can be held as the law that the ■defendant was in the exercise of due care in riding down “this narrow path at the rate of five or six miles an hour, occupied, as it was, by many other persons going in the same direction. This is not a case for the application ■of the rule of law that an accident and a consequent injury are not of themselves evidence of negligence. When one upon a bicycle comes up behind another, who is unconscious of his approach, and is walking where he has a right to walk, gives no. warning, and strikes him with his vehicle, these circumstances, unexplained, tend "to show negligence. The defendant may be able to show “that he was in the exercise of due care, but the burden of “proof was cast upon him by the plaintiff’s case.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


text:
    GLICK v. GLICK.
    Divorce — Alimony—Lien.
    One who, knowing of a wife’s claim for alimony on land held by her husband under a contract of purchase, takes an assignment of the contract from the latter for the purpose of defrauding the wife, will be held to have obtained no interest as against a lien subsequently decreed to the wife to secure the payment of her claim; nor will he be protected to the extent of payments thereafter made upon the contract, where it appears that, at the time of the assignment, other property of the husband was turned over to him equaling in value the payments so made.
    Appeal from Ionia; Daboll, J., presiding.
    Submitted June 17, 1896.
    Decided July 21, 1896.
    Bill by Mary L. Glick against Albert and Jacob Glick to foreclose a lien for alimony. From a decree for complainant, defendant Jacob Glick appeals.
    Affirmed.

      Charles L. Wilson, for complainant.

      Fred H. Stowe and John Nichol, for appellant.
   Long, C. J.

This bill was filed April 11, 1894, to foreclose a lien decreed in divorce proceedings between complainant and defendant Albert Glick. The lien was declared December 30, 1893, principally to secure payment of alimony for the maintenance of an infant child of the parties, about four years of age. The decree required Albert to pay to complainant the sum of $20 every three months, for the support, care, and education of the child, until it arrived at the age of 12 years, giving its custody to the complainant. The lien covers 60 acres of land held by said Albert under land contract from Sanford A. Yeomans, dated July 27, 1891, duly recorded; the purchase price being $600, upon which there was paid down $75, and interest to September 1, 1891. The residue was made payable $50 September 1, 1893, and $50 each year thereafter until fully paid, with interest at 7 per cent, annually. The divorce suit was commenced November 7, 1892, and personal service of process was made. Lis pendens was filed in the suit September 18, 1893, giving notice of complainant’s claim for alimony, and her interest in the premises. Injunction was also issued the same day, and served the next on J acob Glick. It was directed to said Albert, and to said Jacob as agent and trustee of said Albert, their solicitors, etc., restraining them from assigning or otherwise transferring said land contract, or from selling or conveying said land, etc., and therein reciting the complainant’s claim for alimony and interest in said land.

The bill of foreclosure, aside from ordinary allegations, sets forth that the defendants were conspiring and combining together to injure complainant, and prevent her from recovering said alimony, by said Jacob’s entering into possession of said Albert’s personal property, and by cutting down and converting the growing timber, thereby lessening the value of the premises, alleged to be a scanty security. The bill also alleges that Albert had so far performed on his part of said contract, and had paid $125 of principal, besides interest then due, and prays that, in case complainant should pay any portion of said purchase price to protect her interest, the same may be included in her decree. It also prays for subpoena, and injunction to stay, waste, and for general relief. . Appearance in this suit was duly entered for both defendants by same counsel. They answered only for Jacob, and allowed the bill to be taken as confessed as to Albert.

The answer of Jacob, filed August 7, 1894, admits the decree of divorce and for alimony, and the lien on the premises, as alleged, but denies that Albert then owned the premises, or had any right therein, and avers that Jacob was at that time in possession, under assignment in writing of all of Albert’s interest therein; denies fraud on his part; denies that Albert paid $125, and interest, on said contract; alleges that Albert had declared his intention to abandon the contract and allow it to become forfeited, and that, upon his remonstrance, Albert offered voluntarily to convey to him his interest in the land, without charge, if he wanted it; that subsequently, 'relying upon such offer, and believing Albert’s interests worth protecting, he accepted the same, and made the payment of principal and interest due September 1, 1893. He avers that after making the payment, and on October 9, 1893, Albert did assign to him, in writing, his interest; that he paid the taxes of 1893; that on July 12, 1894, before answering the bill, he prepared a quitclaim deed of the land, and an assignment of the contract, and tendered the same to complainant, conditioned upon her refunding to him the moneys so paid on said contract, and for taxes, and interest thereon, amounting to $94.53; that she refused the tender so made. He also avers his willingness to account for personal property received from Albert, and to yield his interest upon payment of amount mentioned, and denies conspiracy, waste, etc., and alleges that he has made valuable improvements, clearing off and putting into crops 10 acres, and that the premises were worth $50 or $100 more than when received. He makes general denial, and prays to be dismissed with costs, etc.

Replication was duly filed, and the proofs were taken in open court January 29,1895. The decree of the court computes the amount matured and due complainant on decree to date of entry, July 11, 1895, at $250.36; orders sale after September 15, 1895; adjudges premises a scanty security, and restrains defendants from committing waste; adjudges Albert personally liable, and, in case of deficiency, that Jacob shall be held personally liable for a sum equal to the extra taxable costs occasioned by his defense, and that he has no equity except in case of surplus after full satisfaction of complainant’s lien, etc.

The record shows that, after the service of subpoena in the divorce case, defendant Jacob knew of the claim made by complainant for alimony, and her claimed interest in the property to pay the same. Before the bill was filed to enforce the lien, Albert absconded. Jacob claims to have arranged with him for the purchase of the land, and an assignment of his interest, but the assignment of the contract was not then made. The papers were thereafter prepared, sent forward to Albert, and then by him executed. When Albert left he turned all his property over to his father, Jacob Glick. There were a team and wagon, and other personal property. The court below evidently believed, from all the facts and circumstances disclosed by the record, that Jacob and Albert were acting in concert to defraud the complainant, and that for this purpose whatever property Albert had was put into Jacob’s hands, and that there was sufficient to pay Jacob for what he had put into the land. The court, therefore, by its decree, sought to protect the rights of the complainant; and, we think, properly. That decree will be affirmed, with costs.

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


text:
    HOUGHTON v. STATE MUTUAL LIFE ASSURANCE CO.
    Insurance Agents — Contract op Partnership — Accounting— Parties.
    An insurance company which has approved of an arrangement whereby its general agent took a copartner, who was to have an interest in the renewal' commissions on business secured by the firm, is a proper party to a bill filed by the incoming partner for an accounting as to such commissions, Ms relations with the company having been dissolved by its direction.
    Appeal from Wayne; Frazer, J.
    Submitted June 18, 1896.
    Decided July 21, 1896.
    Bill by Spencer L. Houghton against the State Mutual Life Assurance Company and Alonzo E. Bradley for a partnership accounting; The defendant company appeals from an order overruling its demurrer to the bill.
    Affirmed.

      Fraser & Gates, for complainant.

      George W. Radford, for appellant.
   Long, C. J.

This is an appeal from an order of the court below overruling the demurrer of the State Mutual Life Assurance Company, one of the defendants, to complainant’s bill. The allegations of the bill pertinent to the questions raised by the demurrer are as follows:

1. That the defendant Bradley was general agent for the State of Michigan of the defendant insurance company; that Bradley proposed that complainant and himself should enter into a copartnership, and that complainant should receive one-half of all renewal commissions on all business secured through said agency during the continuance of said copartnership.

2. That on December 9, 1890, Bradley wrote a letter to the State Mutual Life Assux’ance Company, addressed to J. D. E. Jones, superintendent of agencies, the portion applicable to the questions raised herein being as follows:

“Prof. S. L. Houghton comxnenced work for me July 7th, and has secured about $100,000 new business, settled for, and he desires a xiew contract, January 1, 1891, whereby he will have some future interest, and more inducement ixi working up subagents, etc.; and, believing it would be for the mutual benefit of all concerned, I have made arrangements with him to give him one-half interest in the renewals on all business secured after January 1, 1891, as long as he x’emains with the company, under the firm name of ‘ Bradley & Houghton, General Agents,’ — to txse present stationery and supplies in my name until gone, but all new printing required to have his name added. I gave him my personal guaranty contract last July. He will not expect any guaranty from the company. He desires your approval of above arrangement, so thex-e will be no misunderstanding in the future; or, in other words, should I die in eight or ten years, he would still own half of the renewals from January 1, 1891. * * * If the company approve of our plans, we will endeavor to bring this agency up where it should be, although we are not writing up the year as well as expected,^result of tieup of moxxey, etc.
“A. E. Bradley.”

3. That to this letter the following reply was received:

“Mr. A. E. Bradley, General Agent.
“Dear Sir: Your favor of the 9th inst., aixnouncing your partnership with Mr. S. L. Houghton by mutual agreement between yourself and him, is at hand. We note that on and after January 1, 1891, you have agreed to give him one-half interest in all the renewals on all business secured after said date, as long as he continues with the company; the firm name to be ‘Bradley & Houghton, General Agents.’ The committee on agencies have no objections to the arrangement. It imposes no new burden upon the company. We will print the name of the fix’m on the new supplies.
“J. D. E. Jones,
“ Superintendent of Agencies.”

i. That, subsequent to the above correspondence, Houghton and Bradley entered into the following written contract:

“Detroit, Mich., January 1, 1891.
‘ ‘ In consideration of three hundred and fifty dollars ($350.00), the receipt whereof is hereby acknowledged, I, A. E. Bradley, do hereby release Spencer L. Houghton from contract made July 7, 1890, from this date, and, in place of said contract, I agree to give him one-half of the renewal commission on all new business secured and placed on the books of this agency from and after January 1, 1891, as long as he remains with this agency; also, the full first year’s commission on all business secured by him. The said Spencer L. Houghton agrees to give all his time and best endeavors in securing new business, and also agrees to pay one-half of the incidental expenses not paid by the company. It is further agreed that neither party shall sell out his renewal interest without the written consent of the other party; also, in case of death or permanent disability of either party, the renewal interest shall continue for two years from date of death or permanent disability.
“A. E. Bradley.
“S. L. Houghton.”

5. That it is the custom of the business of life insurance that general agents have a permanent interest in the business, in the form of a percentage of the renewal premiums, and that the aforesaid letters and contract were written and entered into with reference to said custom.

6. That on June 15, 1895, Bradley‘showed complainant a letter from the insurance companjq directing Bradley to dissolve complainant’s “relations with said company;” that thereafter Bradley gave notice of dissolution of the partnership, and excluded complainant from further participation in the business.

7. That complainant’s interest in the renewal commissions is worth $1,^50 per year, and, at the time of the filing of the bill, Bradley, as agent of the company, had $60 which he ought to pay complainant, and that on June 24, 1895, Bradley notified the policy holders that complainant was no longer connected with the agency. -

8. That defendants pretend that, because of complainant’s inefficiency, they' put an end to the agency.

9. That, by reason of the misconduct of Bradley, complainant is entitled to the return -of the $350 paid to Bradley when the contract was made, and that the same is-a lien upon said renewal commissions.

The prayer of the bill is (a) that the defendants, Bradley and the State Mutual Life Assurance Company, be required to discover the names of each and every life insured, respectively, in each and every of the policies of insurance procured during the existence of the contract; (b) that said copartnership may be decreed to have been dissolved by and through the aforesaid misconduct of said defendants; (c) that the said defendants, and each of them, may be required to discover and set forth a full statement of all renewal commissions which have been received by them; (cl) that a receiver may be appointed of all said renewal commissions, and that the defendants may be directed to assign the same to said receiver; (e) that complainant may have satisfaction of the sums due to him out of said renewal commissions from time to time, and of the said sum of $350 so paid to said Bradley, together with the costs of suit.

To this bill defendant Bradley filed an answer. The State-Mutual Life Assurance Company filed a separate demurrer to the bill, and now appeals from the order of the court below overruling it. We think the court below was not in error in overruling this demurrer. The facts set up in the bill are admitted, and upon those facts, most certainly, the complainant is entitled to an accounting with defendant Bradley, as a partner. It is contended, however, that the insurance company is not a proper party defendant. The company is ' directly interested in the controversy, and, if the complainant’s contention be sustained on the hearing upon pleadings and proof, the complainant would have the right to a decree against it for his interest in renewal commissions. The company had notice of the arrangement between complainant and Bradley, and approved the arrangement, knowing that complainant was to have an interest in the renewals so long as he continued with the company. The company, knowing these facts, directed defendant Bradley to dissolve the relations of the complainant with the company.

The order of the court below, overruling the demurrer, must be affirmed. Defendant insurance company will have 20 days to answer the bill. Complainant will recover his costs' of this court against the defendant insdrance company.

The other Justices concurred.


text:
    CARTWRIGHT v. JOHNSTON.
    Equity Practice — Discontinuance—Cross-Biel.
    A consent decree adjusting and determining the rights of adverse claimants in and to a judgment upon an insurance policy operates as a discontinuance of the suit as to the company, which was made a nominal party defendant, so that it cannot thereafter file a cross-bill therein.
    Appeal from Wayne; Carpenter, J.
    Submitted June 18, 1896.
    Decided July 21, 1896.
    Bill by William W. Cartwright and another against Cyrus Johnston and the Farmers’ Fire Insurance Company of York, Pa., for an accounting and an injunction. The defendant company filed a cross-bill, which was dismissed on demurrers interposed by the complainants and by defendant Johnston, and the company appeals.
    Affirmed.

      After the affirmance of Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, there was a delay in collecting the judgment. After some time the complainants sued Johnston at law, and garnished the defendant company. Still later they filed this bill in chancery, charging conspiracy against Johnston et at. to defraud them out of that portion of the judgment which belonged to them. Complainants had assigned their interest in the insurance policy to Johnston for the purpose of collection. When collected, one-fourth thereof was to be paid to complainants, and the other three-fourths applied in payment and discharge of the note and chattel mortgage given by complainants to Dehn, and assigned by Dehn to Johnston. A preliminary injunction was issued, restraining Johnston from collecting the judgment and restraining the defendant company from paying it to him. Johnston answered, and moved to dissolve the injunction. Upon the hearing of the motion, at the suggestion of the court, complainants and Johnston came to an agreement, and, in accordance therewith, a decree was entered fixing the amount of complainants’ interest in the judgment, discontinuing the garnishee proceedings, dissolving the injunction, and granting Johnston leave to proceed upon his judgment at law by execution if necessary, according to the usual course of practice, as if no injunction or garnishment had been issued. This decree was entered August 5, 1895. On April 6, 1896, the defendant company filed an amended answer, charging fraud upon Johnston and Dehn in procuring this insurance, exonerating complainants from participation in the fraud, and asking relief as upon a cross-bill, praying that the judgment be set aside. To this cross-bill complainants and Johnston demurred, and the demurrer was sustained.

      William Stacey, for complainants.

      S. E. Engle, for defendant Johnston.

      E. T. Wood and Willis G. Clarke, for appellant.
   Grant, J.

{after .stating the facts). It is -unnecessary to state the grounds upon which the defendant company asks relief. It was a nominal party, made necessary only to secure to the complainants the money due them on the judgment. The decree settled the entire controversy between complainants and Johnston. At that time the defendant company had not appeared in the suit. The decree operated as a discontinuance of the chancery suit so far as it concerned the insurance company. The injunction was dissolved, and the company was left to pursue such further remedy as it deemed advisable by independent suit. Widner v. Lane, 14 Mich. 124; Comstock v. Comstock, 24 Mich. 39.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    CHASE v. DARBY.

    Annuities — Apportionment.
    An annuity, contracted to be paid by a son to his father, is not apportionable, and, upon the latter’s death before the time for making a payment, no part thereof is recoverable, although he was indebted at the time of his death.
    Appeal from Ionia; Davis, J.
    Submitted June 19, 1896.
    Decided July 21, 1896.
    Bill by Washington Y. Chase, administrator of the estate of Charles Darby, deceased, against Phoebe A. Darby, to foreclose a mortgage. Defendant filed an answer in the nature of a cross-bill, praying that the mortgage be canceled and discharged. From a decree for defendant, complainant appeals.
    Affirmed.

      Vernon H. Smith, for complainant:
    An annuity given for maintenance is apportionable. 2 Wms. Exrs. (6th Am. Ed.) 909, 910; 1 Story, Eq. Jur. §§ 479-483; Lumley, Ann. 291; Hill, Trustees, 394; 1 Am. & Eng. Enc. Law, 595, and note 4; Attorney General v. Smythies, 16 Beav. 385; Pearly v. Smith, 3 Atk. 260; Reynish v. Martin, Id. 330, 336; Hay v. Palmer, 2 P. Wms. 501; Ex parte Smyth, 1 Swanst. 337; Webb v. Shaftesbury, 11 Ves. 361; Sweigart v. Frey, 8 Serg. & R. 299; Gheen v. Osborn, 17 Serg. & R. 171; Blight v. Blight, 51 Pa. St. 420; Fisher v. Fisher, 4 Am. Law Jl. (N. S.) 539; In re Lackawanna Iron & Coal Co., 37 N. J. Eq. 26; Ex parte Rutledge, Harp. Eq. 65.

      R. A. Hatuley, for defendant:
    At the common law, an annuity was not apportionable, except in cases where it was given for the maintenance of a married woman living separate from her husband, or for the support of minors. 1 Am. & Eng. Enc. Law, 595; Wiggin v. Swett, 6 Metc. (Mass.) 194; Dexter v. Phillips, 121 Mass. 180; Phelps v. Culver, 6 Vt. 430; Franks v. Noble, 12 Ves. 484; Hay v. Palmer, 2 P. Wms. 501; Manning v. Randolph, 4 N. J. Law, 144; Ex parte Smyth, 1 Swanst. 349; Reg. v. Lords Com’rs of Treasury, 16 Q. B. 357; Tracy v. Strong, 2 Conn. 659; Irving v. Rankine, 13 Hun, 147, 79 N. Y. 636; Kearney v. Cruikshank, 117 N. Y. 95; Stewart v. Swaim, 13 Phila. 185; Leathley v. Trench, 8 Ir. Ch. 401; Heizer v. Heizer, 71 Ind. 526; Ellerbe v. Ellerbe, Speers, Eq. 328.

       Rehearing denied October 6, 1896.

   Hooker, J.

Charles Darby, being the owner of 160 acres of land, conveyed the same by deed to his son Charles F. Darby on May 29, 1879, upon the promise of the latter to pay to his brothers and sisters the sum of $1,200; and, as a further consideration for the conveyance, he gave to his father a mortgage to secure the performance of an agreement to which it was collateral, which reads as follows:

“ For value received, I promise to pay Charles Darby an annual annuity of three hundred and. eighty-four dollars, to be paid in each and every year as long as he shall live; the first payment of said sum, as such annuity, to become due and be paid in one year from this date, and a like sum to become due and be paid to him in each and every year thereafter, so long as he shall live, on the 29th day of May, in each and every year, during his lifetime.
“It is agreed and understood, however, between the undersigned and said Charles Darby, that he may have a home with me, the undersigned; I furnishing him such home, clothing, nursing, medicines, attendance of doctors, and all other necessaries of board, lodging, and of life, in sickness and in health, during his said lifetime, and as he shall need and require any or all of the same, and he to allow and credit me therefor, for the same, in sickness and in health, always and only, the sum of two dollars per week.
“This instrument is secured by a real-estate mortgage executed by the undersigned to said Charles Darby, bearing even date herewith; the condition hereof being certain real estate this day conveyed to me by said Charles Darby.
“This dated May 29, 1879.
“Charles F. Darby, [l. s.]”

Upon the back of the agreement various amounts are indorsed, and complainant, who is the administrator of Charles Darby, claims that at the date of the hearing there was due upon the contract, upon the face of the papers, $869.17. This is made up of four items, viz.: The first three consist of amounts which it is claimed were unpaid for the years 1880, 1881, and 1882, the indorsement for each of those years being $280 only. The other item is $222.81, being a proportionate part of the yearly payment, which complainant claims should be paid for the time Charles Darby lived after the last payment, made May 28, 1893; Dai’by having died December 28, 1893. Interest upon these sums swells the amount to the sum claimed. Charles F. Darby, the son, died on December 25, 1882, and the premises went to his widow, Phoebe, under his will. The bill was filed to foreclose the mortgage, and the defendant, Phoebe Darby, filed an answer in the nature of a cross-bill, denying that any amount is due upon the mortgage, alleging its full payment, and praying its cancellation and discharge.

As we understand counsel, there are two questions in the case. The first is whether the sums indorsed for 1880, 1881, and 1882 were the balance due to Charles Darby after applying the yearly sum of $104 for board furnished by the defendant. This is a .question of fact. Second, whether anything is colléctible for the fractional year; defendant contending that these papers created an annuity, and that nothing was due for the year 1894, as the annuitant failed to reach the day when it would have been due had he lived.

It seems plain that Charles Darby lived upon the premises, at an agreed price of two dollars a week, for three years; and we see no reason for doubting the justice of the conclusion reached by the learned circuit judge, that payment in full' was made for the three years in controversy.

The contract is an obligation to pay annually a sum which the parties have seen fit to call an “annual annuity.” Perhaps the word “ annual ” should be discarded as surplusage, but, if to be given any force, it emphasizes the word “annuity,” which, under 1 How. Stat. § 2, subd., 1, must be given the technical meaning, unless we can find in the contract some indication that a different meaning was intended, which we do not. If it is to be considered an annuity, it is not apportionable; the cases upon the subject being numerous, and generally uniform. See cases cited in the briefs of counsel. The exceptions generally recognized are where the annuity is granted to a married woman living separate from her husband, and for the maintenance of minors. In such case it is based upon a supposed necessity growing out of their want of capacity to contract. In Pennsylvania this has been extended to annuities given in lieu of dower, or to widows. In Re Lackawanna Iron & Coal Co., 37 N. J. Eq. 26, this apparent extension of the exception is followed, and perhaps enlarged. But the great weight of authority is •against the contention of complainant. The case is so well briefed that it is unnecessary to repeat authorities. In some States they are made apportionable by statute. ¡See Kearney v. Cruikshank, 117 N. Y. 95. The fact that Charles Darby was indebted at his death is unimportant. The contract shows that less than one-third of .nis annuity was required for his board in sickness and health, and the fact that he could not or did not find the ■annuity adequate to his wants does not authorize a court to make a different contract from that which he was content to make for himself.

The decree of the circuit court must be affirmed, and a •decree entered here dismissing complainant’s bill, with costs, and declaring the mortgage satisfied, canceled, and discharged, and authorizing the record of a copy of the decree as evidence of such fact. It is so ordered.

. The other Justices concurred.


author: Hooker, J. Hooker, J.

text:
    McINTOSH v. HODGES.
    1. Statute of Frauds — Leases—Authority of Agent.
    A lease for more than one year, executed by an agent whose authority rests in parol only, is void under the Illinois statute , of frauds, providing that no action shall be brought to charge any person upon any contract for the sale of lands, or any interest in or concerning them, for a longer term than one year, unless such contract shall be in writing, signed by the party to be charged therewith, or by some other person thereunto authorized in writing signed by such party.
    2. Sealed Instruments — Execution by Agent.
    The fact that a seal is affixed to an instrument executed by an agent does not render it necessary that his authority in the premises should be founded upon an instrument executed with the same formality.
    3. Landlord and Tenant — Void Lease — Nature of Tenancy.
    One who enters into premises under a void lease for 21 months, providing for a rental of §2,475 for the entire term, payable in monthly installments of §75 for the first 9 months and of §150 for the last 12 months, does not, at the common law, become a tenant from year to year by holding over and paying rent after the expiration of the first year, but is a mere tenant at will.
    4. Same — Use and Occupation — Evidence.
    In an action for use and occupation, a void lease, under which the defendant entered into possession, is admissible to show the nature of his holding.
    Error to Delta; Stone, J.
    Submitted June 20, 1896;
    decided July 21, 1896.
    Rehearing granted December 24, 1896;
    reargued February 5, 1897;
    final opinion,, affirming the earlier decision, March 29, 1897.

      Assumpsit by Alexander McIntosh against Fred Hodges to recover rent alleged to be due under a lease. From a judgment for defendant on "verdict directed by the court, plaintiff brings error.
    Reversed.

      T. B. White, for appellant.

      Mead & Jennings, for appellee.
   Hooker, J.

One Brown was owner of a store building in Chicago. On April 4, 1892, J. E. Kimball, professing to be agent for Brown, made and executed in his name a written lease for the premises to the defendant, from the 1st day of August, 1892, until April 30, 1894. Said lease was a sealed instrument. The defendant covenanted to pay rent as follows, viz.:

“The sum of twenty-four hundred and seventy-five ($2,475.00) dollars, payable in monthly installments of seventy-five ($75.00) dollars for the first nine months of said term, and one hundred and fifty ($150.00) dollars per month for the last twelve months of said term, all payable monthly in advance upon the first day of each and every month of said term, at the office of J. E. Kimball, Chicago, Illinois.”

Kimball had no written authority to lease the premises. The defendant entered at once, and in person and by tenant occupied until November 15, 1893, when the premises were vacated. Plaintiff claims that the key was retained by the defendant, who afterwards refused to pay the rent, and this action was brought; the declaration counting upon the lease, a count for use and occupation being added. Plaintiff purchased the premises from Brown on September 10, 1893, and at the same time Brown’s interest in the lease was assigned to him in writing by Brown. He received the rent for October from Kimball. This action was brought to recover the rent due at the expiration of the term fixed by the lease.

The defendant claimed that the lease was void under the statute of frauds of Illinois (Rev. Stat. chap. 59), section 2 of which reads as follows:

“Sec. 2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party. This section shall not apply to sales upon execution, or by any officer or person pursuant to a decree ■ or order of any court of record in this State.”

The circuit judge took the defendant’s view of this statute, and excluded the lease.

In the case of Lake v. Campbell, 18 Ill. 106, it was held that an agent might make a valid lease for four years, although his authority was not in writing. Counsel for .the, defendant seek to avoid the force of that case by claiming (1) that we cannot presume that the statutes of Illinois are the same now as when thar case was decided; (2) that, if they be unchanged, the case cited is not applicable, because the lease was a sealed instrument. To our minds the discussion in the case of Lake v. Campbell shows that section 2 of the Illinois statute was the same then as now, but the court held that that section did not apply to leases, but to other estates enumerated in the opinion, and it referred to other sections to show an intent on the part of the legislature to except leases from the requirement that the agent’s authority must be in writing. We cannot assume that these sections have been changed. It is unnecessary to repeat the reasoning of this interesting case, as we have only to follow the construction of the Illinois court when we ascertain what it is. The same case holds that a seal is unnecessary to such a lease. Counsel seem to concede that fact, but assert that, inasmuch as it was affixed, the consequences are the same as though it were essential to the validity of the lease, and- that the agent’s authority must be shown to have been in writing and under seal. They cite no authority in support of this proposition, and we think it is not the law. The seal may be treated as surplusage. Counsel for the plaintiff cites authority which seems conclusive of the question. Bless v. Jenkins, 129 Mo. 647; Mechem, Ag. §§ 95, 141, and notes,

Rhe lease being valid under the law of Illinois, we are constrained to reverse the judgment, and direct a new trial, and it is so ordered.

The other Justices concurred.

ON REHEARING.

Hooker, J.

Upon a former hearing of this cause, it was thought that the lease sued upon was not within the statute of frauds of the State of Illinois, and it was therefore held valid. Upon a further investigation of this question, we are satisfied that we were in error, and that, under the statute of Illinois in force at the time this lease was made, it cannot be sustained as a valid lease. This makes it necessary to consider other questions.

The lease was in writing, signed by an agent whose authority was oral, and the letting was for 21 months. The covenant for rent was as follows:

“ To pay as rent for said demised premises the sum of twenty-four hundred and seventy-five ($2,475.00) dollars, payable in monthly installments of seventy-five ($75.00) dollars for the first nine months of said term, and one hundred and fifty ($150.00) dollars per month for the last twelve months of said term, all payable monthly in advance upon the first day of each and every month of said term, at the office of J. E. Kimball, Chicago, Illinois.” '

It is claimed by the plaintiff that occupancy and payment of rent, and acceptance of the same, after the expiration of a year, made this a tenancy from year to year, upon the terms of the renting for the first year. This covenant to pay rent does not fix a rate per annum, but fixes a sum to be paid for the whole term, viz., $2,475. The fact that it is payable in installments does not make it a monthly letting, and on the other hand, while the letting was for a longer period than a year, and the amount of rent to be paid during the year at stated intervals was fixed, it cannot be said that this sum would be called the rent for the year. These installments were not equally proportionate parts of the entire rent, and we do not know whether to say that the annual rent should be fixed at the sum paid during the first year, viz., $1,125, a proportionate share of all rent agreed upon, which would be $1,414.29, or at the rate of $150 per month, which was the monthly, installment for the last year, and would amount to $1,800. We cannot “ infer a mutual understanding that an ascertained annual rent was agreed upon.” On the contrary, it very clearly appears that the rent was fixed for the whole term, and payments by arbitrary installments agreed upon. As an annual rent was not reserved, this did not become, under the common law, a tenancy from year to year, by occupancy. It follows that the circuit judge was right in holding the paper void, but not in excluding it, as it. was admissible to show the nature of the b.oldii¡Lg.

It is obvious that the relation of the parties during the occupancy was that of landlord and tenant, and if the lease was void, and the holding was by consent, evidenced by the payment and acceptance of rent, it was a tenancy at will. Huyser v. Chase, 13 Mich. 98; Brownell v. Welch, 91 Ill. 523. Were this a Michigan contract, and the premises within the State, the statutory notice would be required to terminate the tenancy, and the defendant would be liable for at least one month’s rent, after abandonment without notice. See Huntington v. Parkhurst, 87 Mich. 38 (24 Am. St. Rep. 146); Scott v. Beecher, 91 Mich. 590. In Prickett v. Ritter, 16 Ill. 97, the necessity of notice to terminate an existing tenancy in that State is recognized. This is the common-law rule, except in case of strict tenancies at will, and this is not such. While that was' a case of attempted termination by the landlord, it is conceived that the same notice would be required of the tenant. We cannot sustain the .plaintiff’s contention that the defendant was liable for rent as a tenant from year to year, though he may have been such under Illinois statutes, but, at all events, lie may have been liable as tenant at will. Counsel does not present this view of the case in his brief, but the case can be disposed of on other grounds. The evidence shows that the defendant sublet the premises, and that the rent to November 15th was paid by the subtenant to the defendant’s agent, who paid the rent for the month of October to the plaintiff, but not for the period ending November. 15th, at which time the subtenant vacated-the premises. The keys were never surrendered. It would seem that the plaintiff was entitled to recover for use and occupation during that period, at least, and, as stated, the lease should not have been excluded.

The former decision is therefore affirmed on rehearing. The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. O’NEIL.
    1. Game Laws — Sale op Imported Game — Interstate. Oommeroe.
    It is competent for tlie State, for the enforcement of its game laws, to prohibit absolutely the importation and sale of game and fish during a closed season, or during the entire year.
    Therefore, Act No. 196, Pub. Acts 1893, prohibiting the sale, exposing for sale, or having in possession for the purpose of sale, any kind of bird, game, or fish during a closed season, and Act No. 223, Pub. Acts 1895, irrohibiting specifically the sale of quail, woodcock, and partridge at any season of the year, are not invalid as unlawfully restricting interstate commerce.

      2. Same — Police Power — Constitutional Law.
    The legislature may, in the exercise of its .police power, for the protection of game and fish, prohibit the sale of the same, though lawfully acquired, and though an article of food not deleterious in itself.
    ■ Exceptions before judgment from tbe recorder’s court of Detroit; Cbapin, J.
    Submitted January 30, 1896.
    Decided July 28, 1896.
    Thomas W. O’Neil and Jacob H. Hoffner were convicted of violating the game laws.
    Affirmed.

      T. E. Tarsney and W. W. Wicker, for appellants.

      Ered A. Maynard, Attorney General, Allan H. Eraser, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.

       On the question of game laws as affecting interstate commerce, there is a note to State v. Geer, (Conn.) 13 L. R. A. 804.

   Montgomery, J.

The exceptions before judgment are presented in two cases of the same title, which are heard upon one record, in the first of which the respondents are charged with selling brook trout on the 9th of September, 1895, and in the other of which they are charged with selling a quantity of quail on the 28th of October, 1895. The prosecutions are based on section 5 of Act No. 196, Pub. Acts 1893, and section 5a, added to the act in 1895 by Act No. 223.

The previous legislation upon the subject was considered by this court at the June term, 1888, in the case of People v. O’Neil, 71 Mich. 325. The act under consideration there was Act No. 251, Pub. Acts 1881, and it was held by the majority of the court that section 5 of said act, prohibiting the sale of birds protected by the act after the expiration of eight days next succeeding the time limited and prescribed for' the killing of any such birds, was not intended to prohibit the sale of game killed in other States and imported into this State. This conclusion was reached by considering Act No. 68, Pub. Acts 1887, a legislative construction of the law of 1881. It is apparent, however, from a reading of the opinion, that a majority of the court was of the opinion that it was within the power of the legislature to prohibit the sale of game, whether taken within the State or imported into the State. Mr. Justice Campbell, with whom Mr. Justice Morse concurred, expressed the opinion that it would not be competent for the legislature to punish the possession of game which was lawfully captured or killed. The question of whether such a provision would be an interference with interstate commerce was not considered by Mr. Justice Campbell. The view expressed by him that it would not in any case be competent to prohibit the sale of game lawfully captured or killed is clearly against the great weight of authority, numerous cases having been decided since the decision of People v. O’Neil, to which reference will be made later.

In 1893, an act, the general scope and purpose of which was to protect the fish and game of the State, was passed, under the title “An act to regulate the possession, use, transportation, and sale of fish and game.”' Section 1 of the act defines and limits the property right, of those who take game the possession of which is at any or all times prohibited by the laws of the State. Section 2 prohibits the shipping of game or fish, the taking of’ which is at any or all times prohibited, beyond -the limits of the State. Section 3 makes it an offense at any time to have in possession any game or fish caught, taken, or killed outside of the State, which was taken or killed at a time, in a manner, or for a purpose forbidden by the laws of the State where the same was caught or taken. Section 4 makes the possession or having control of any kind of bird, game, or fish, the killing of which is at any or all times prohibited by the laws of this State, prima facie evidence that it was killed in this State, and attempts to further prescribe what shall be admitted as proof to overcome this prima facie presumption. Section 5 reads as follows: “No person, company,.or corporation shall sell, or attempt to sell, or expose for sale, or have in possession or under control for the 'purpose of selling or exposing for sale, any kind of bird, game, or fish, at any time when the taking, catching, or killing of such kind of birds, game, or fish is prohibited by the laios of this State,” — followed by a proviso not material here. This act is comprehensive, and we think it clear that it was the intention of the legislature, by section 5, to prohibit "absolutely the sale of game and fish, the taking of which is prohibited by the laws of this State, at certain seasons of the year, — i. e., during the closed season, — and that this section 5 was enacted by the legislature having in view the limitation placed by construction upon section 5 of Act No. 251, Pub. Acts 1881, and for’the purpose of obviating that limitation. It is to be noted that the first four sections relate to the possession of fish or game at any time during the year, while section 5 relates to the possession of such game or fish during the closed season. Section 5a, added in 1895, is limited to quail, woodcock, and partridge, and prohibits the sale or exposing for sale of either of these kinds of birds at any season of the year.

On the trial of the case the respondents offered to show -that the trout and quail were respectively shipped into this State from Illinois as articles of food. This testimony was excluded, and it is now contended that the statute is unconstitutional, for the reason that it constitutes an un- - lawful restriction of the right of interstate commerce, and for the further reason that the legislature has no power to forbid the sale of articles of food, except in the exercise of its police power, and that in the exercise of the police power it cannot prohibit the sale of an article of food which is not deleterious in itself. As was stated in People v. O’Neil, supra, this question is not a new one to the courts. In State v. Randolph, 1 Mo. App. 15, it was said:

‘ ‘ The game law would be nugatory if, during the prohibited season, game could be imported from the neighboring States. It would be impossible to show, in most instances, where the game was caught.”

See, also, the other cases cited in People v. O’Neil, and American Express Co. v. People, 133 Ill. 649 (23 Am. St. Rep. 641); Com. v. Savage, 155 Mass. 278;, Roth v. State, 51 Ohio St. 209 (46 Am. St. Rep. 566); Ex parte Maier, 103 Cal. 476 (42 Am. St. Rep. 129); Geer v. Connecticut, 161 U. S. 519,—which latter case contains a review of the authorities, and an interesting discussion of the subject. The cases cited abundantly establish the doctrine that it is competent for the legislature, for the-purpose of protecting game or fish, to absolutely prohibit the sale of fish or game caught within the limits of the State during a closed season or during the entire year. The question of the right to prohibit the importation and sale of game or fish, with the same purpose, is discussed, and the right affirmed, in Ex parte Maier, and the right is also assumed in numerous of the other cases referred to.

We think the statute is valid, and that the convictions should be sustained, and the court below directed to proceed to judgment.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    LATHROP v. SINCLAIR.
    1. Estates oe Decedents — Claim for Services —Evidence — Question for Jury.
    Where, in an action against an estate for services rendered to decedent by way of attendance and companionship, there was evidence of statements made by the deceased indicating that such services were performed and received upon an understanding that they should be well paid for, and that they were requested by decedent as a matter of right, it was proper to submit to the jury the question whether claimant was entitled to recover, under instructions that the amount of a bequest accepted by claimant under decedent’s will should be deducted from the amount of the verdict.
    2. Same — Value of Services — Competency of Witnesses.
    A witness in such action, who, together with claimant, resided in decedent’s house, and who showed herself possessed of a general knowledge of the physical condition of decedent, and of the .necessity for care, and of the kind of care furnished by claimant, was properly permitted to give an estimate, based on the conditions described, as to the value of the services rendered.
    Error to Kent; Adsit, J.
    Submitted April 8, 1896.
    Decided July 28, 1896.
    The claim of Helen A. Lathrop against the estate of Anna Miller, deceased, was disallowed in probate court, and claimant appealed. From a judgment for claimant, Malcolm C. Sinclair and another, executors, bring error.
    Affirmed.

      Taggart, Wolcott & Ganson,-for appellants.

      Taggart, Knappen & Denison, for appellee.
   Hooker, J.

The claimant was an unmarried woman, who was allowed compensation from the estate for services alleged to have been rendered to testatrix by way of companionship and attendance. The claimant maintains that the evidence shows an agreement to compensate her for such services as she should render, while the defendants assert that, at most, it is shown that testatrix promised to remember her in her will to such extent as she thought just or proper. The claimant was not a competent witness, and the evidence in support of her claim consists of statements of the testatrix, which, in our opinion, were such as to raise a question for a jury as to what was intended by testatrix and understood by the parties upon this subject. The court did not err, therefore, in refusing to direct a verdict for the defendants.

Error is assigned upon the admission of the testimony of Misses Parker and Green, who lived in the house, as to their opinions of the value of the services, rendered. The objection raised was that they were not shown to have sufficient knowledge of the services rendered. Whilé, from the nature of the services, no one could know every incident of such service, these witnesses were possessed of a general knowledge of the condition of the testatrix, and the necessities for and kind of care furnished, for a long period, and apparently they were as familiar with all the circumstances as any person other than testatrix and the claimant. They testified to what they did know, and based their estimate upon the conditions described, which afforded an opportunity to the jury of judging of the value of the services, and of the opinions given. We consider the testimony competent.

Error is also assigned upon the arguments of counsel, but we discover nothing therein that calls for a reversal of the case. We have repeatedly said that the injury ffiust be apparent, or the abuse very great, before we would interfere with the exercise of the discretion of the circuit judge in relation to the language of counsel.

Other questions are raised, a discussion of which would be profitless. If there is any error in the case, we think it is confined to the conclusions of the jury upon disputed questions of fact, with which we have nothing to do.

The order of the circuit court is affirmed.

Montgomery and Moore, JJ.; concurred with Hooker, J. Long, C. J., did not sit.

Grant, J.

(dissenting). General Statement.

The claimant, Miss Helen Lathrop, presented a claim to the probate court of the county of Kent against the estate of Mrs. Anna Miller, deceased, couched in the following language:

“The Estate oe Anna Miller, Deceased, Dr.
“To Helen Antoinette Lathrop:
“To the value of the personal care, attendance, and companionship of claimant, rendered to deceased from the year 1885 to the death of said Anna Miller, viz., October 29, 1893, at the request of said Anna Miller, $5,000.”

The claim was disallowed by the probate court, and on appeal to the circuit court the jury rendered a verdict for the claimant of $2,500.

Mrs. Miller and her husband owned a large building in the city of Grand Rapids, the lower part of which was rented for stores, and in the upper part Mr. and Mrs. Miller kept a boarding house. Mr. Miller died in 1885. For about six years previous to his death the claimant boarded and roomed with Mrs. Miller. Mrs. Miller kept a boarding house for a short time after her husband’s 'death, during which time claimant boarded with her. She then discontinued the boarding house, but took roomers; claimant being one of them, and continuing to pay rent to Mrs. Miller during the period covered by her alleged services. Her bedroom was next to the bedroom occupied by Mrs. Miller. There was a door between them, which was usually kept locked, and the dresser of claimant stood against it. During the entire period, both before and after Mr. Miller’s death, claimant was employed as a school-teacher in the city of Grand Rapids, receiving a compensation of from $675 to $725 per year. Miss Lathrop and Mrs. Miller were ladies of refinement and education, and were on terms of close intimacy and friendship during the 14 years in which Miss Lathrop roomed in the house. Mrs. Miller had a parlor to which Miss Lathrop and the other boarders had free access.

Mrs. Miller was not in the best of health after her husband’s death, though she attended to her own business affairs, social duties, and frequently went out driving, herself driving the horse. She was ill two or three times during these eight years, and confined to her bed. During these times a nurse was employed to take care of her. The claim of Miss Lathrop is that she had a contract with Mrs. Miller by which she was to receive compensation for what she did for her, and for companionship to her. Miss Lathrop took no time from her school duties to perform these services. Her relation in the household, to all appearances, was the same after Mr». Miller’s death as before. Mrs. Miller was subject to fainting spells, during which she lost consciousness. It is in evidence that on these occasions Miss Lathrop often assisted her,- — sometimes got up in the night at the call of Mrs. Miller, and either assisted her herself, or called the nurse to do so; that she played cards and backgammon with her to a greater extent than did the other boarders. At one time, —but how-long after Mr. Miller died does not appear,— Mrs. Miller proposed to raise the rent of Miss Lathrop’s room. Miss Lathrop declined to pay more, and informed her that she should change her residence if the rent was raised. The matter was arranged by Miss Lathrop’s paying the same rent as before. On two summer vacations, Mrs. Miller and Miss Lathrop went on excursions together, — one on the St. Lawrence, to Halifax, and the other time to Waukesha, Wis., and around the Lakes. Each paid her own fare. Miss Lathrop went away most of her other vacations, spending them with her relatives and friends as she chose. She kept no account of her services, nor is there any evidence whatever to show just when any agreement, if there was any, was made. - *

March 8, 1890, Mrs. Miller made a will, by which she made certain specific bequests to her brother and other relatives and friends, and to Miss Lathrop $600 and certain of her personal property, and made Dr. Malcolm C. Sinclair her residuary legatee. To this will she made two, codicils, the latter of which was executed January 19, 1892, by which she bequeathed to Miss Lathrop $400 more. June 6, 1892, she made another will, revoking the first one, by which she bequeathed to Miss Lathrop $1,000, and certain personal property of the value of about $100. To this will she made two codicils, in the last of which, executed October 19, 1893, she bequeathed certain other personal property to Miss Lathrop. Dr. Sinclair was also made the residuary legatee by this will.

Her position is best illustrated by the testimony of Mrs. Holden, a witness for claimant, that:—

“Miss Lathrop was one of.the family. * * * She was there as constantly as any daughter would be in the family, and seemed to occupy the position of a daughter. * * * I mean by that, that that was her home; she usually was there as constantly as other people are at their homes.”

The following special questions were submitted to the jury, and the following answers given:

“(1) Was there an understanding between the claimant, Helen A. Lathrop, and the testatrix, Anna Miller, that services were to be rendered by Miss Lathrop to Mrs. Miller, and that such services should be compensated for by a bequest in the will of Mrs. Miller ?
“Ans. Yes; but was not sufficiently compensated therefor therein.
“(2) Were the services which were rendered by Miss Lathrop, the claimant in this case, to Mrs. Miller, rendered in the expectation that she would be recompensed therefor by a legacy or bequest to be provided for in the will of Mrs. Miller ?
“Ans. Yes; but she was not fully.”

The amount of the verdict was in fact $3,600. Miss Lathrop had taken the bequest, and the court instructed the jury to deduct this from the amount they should find her services to be worth.

It is urgently insisted on behalf of the claimant that her testimony has established the fact of services and companionship rendered, from which the law implies a contract to pay what they were worth. It is sought to bring this case within the well-known rule that, where one works for another as a laborer upon his farm or in his shop, or in his store or bank, as a clerk, or in his house, as a servant, a contract of service is implied. The claimant has made no such case as will bring her within this rule. She was constantly engaged in other employment. She roomed with her friend, Mrs. Miller. Her daily routine of work naturally excluded her regular employment in another capacity. She lost no time from that service. It is in evidence, from her own witnesses, that her school duties occupied some of her time outside of the hours in the schoolroom, and that she was obliged to spend some of her evenings at her boarding house in school work. She daily returned from the schoolroom to Mrs. Miller’s between 5 and & o’clock p. m. She performed no household work for Mrs. Miller, nor any menial service, excepting an occasional footbath and rubbing, and assistance when Mrs. Miller had her fainting spells. There is no evidence that she spent her Saturdays and Sundays in any different manner from any of the other teachers. The principal service, if it may be called such, was her companionship with Mrs., Miller in her parlor in the evening, when she sometimes read to her, and frequently played backgammon with her. To sum up their relationship in a sentence, it was none other than that of two friends, one of whom boarded and roomed with the other, and the services are none other than might naturally be expected between two close friends. The principal service was that of companionship, and it would be absurd to hold that a contract for companionship was to be implied, under these circum¡stances, to run for eight years, or during life, with the understanding that it should be left to a jury, not only to find a contract, but to guess what such services were worth. There were none of the open indications of employment necessary to establish the relation of employer and employe. There was nothing, therefore, in the relations of these parties, to justify the presumption of contract relations.

It remains to consider whether there was evidence to justify the finding by the jury that there was an express contract between these parties. These cases are always important, and the present case forms no exception. Mrs. Miller had little personal property, which she disposed of by her will to various friends and relatives. The building ■comprised the whole of her estate, which was valued at $28,000. It was mortgaged for the sum of $10,000. After providing for her debts, funeral expenses, and a monument to herself and her husband, she made money bequests amounting to $4,800. The debts proven against the estate were $4,685. If this claim is sustained, there will probably be little or nothing left for Dr. Sinclair, the residuary legatee, to whom she was indebted for medical attendance and services. It is therefore important to give quite fully the evidence upon which the learned ■counsel for the claimant rely to sustain the express contract, without which there could be no recovery. The provisions of both the wills of Mrs. Miller are wholly inconsistent with the theory that she understood that such •a contract existed. The conduct of the parties rebuts .any such presumption. Miss Lathrop kept no account of her services. There is no evidence that she ever uttered ■a word to Mrs. Miller' to show that there was such a contract, or that she was rendering services for which she expected payment, although others, who were witnesses, were evidently friends of both Miss Lathrop and Mrs. Miller, and were daily in their company at the house. ■The sole foundation for this claim rests in parol, and consists of statements which it is claimed Mrs. Miller made in conversation with, some of the witnesses. Not one of the witnesses gives the exact language. Miss Parker, a school teacher, and intimate friend of the claimant, boarded with Mrs. Miller while she kept boarders, and roomed with her afterwards, and her testimony is as strong as any. On her direct examination, after testifying to what she saw Miss Lathrop do, she was asked:

“ Did Mrs. Miller make any statement to you in regard to her illness, or the desire of that arrangement [referring to her playing backgammon, etc.] ?”

To this Miss Parker replied:

“I do not remember of hearing that particular matter discussed. Miss Lathrop occupied the room next to Mrs. Miller, and was therefore in call when needed for care or anything. * * * Mrs. Miller never discussed the matter of money, pertaining to Miss Lathrop, with me, except in a general way, — -that Miss Lathrop was to be well paid for all she did for her. It was usually expressed in some such way as that. Such expressions as that I have heard from Mrs. Miller on a good many occasions. On one occasion, I remember, Miss Lathrop had been called up in the night. She had been called up several times several nights previous to this, when Miss Lathrop was not feeling very well. Miss Lathrop was teaching, and was obliged to get up in the morning, and go to school, after having been called up repeatedly; and on this occasion I felt that it was almost selfish of myself not to take, — bear,—more of that kind of burden; and I offered, — suggested,—to Mrs. Miller that she could call me, in case she needed care, that night, and said that Miss Lathrop was pretty tired; that she had been up the night before; ‘and now,’ I said, ‘Mrs. Miller, if you need care, call on me tonight, instead.’, Mrs. Miller’s answer was something like this: No, she wanted Miss Lathrop; that Miss Lathrop could do better than anyone else for her; that Miss Lathrop understood what she wanted better than anyone else, and, when she wanted some one, she wanted her; and followed this with the remark that Miss Lathrop was doing a good deal for her, but that Miss Lathrop would be well paid for whatever she did, -— would be well paid for her services. There was one other instance that I remember of something of that kind being said. It was one afternoon I came in from school, and the matter came up of who was doing for Mrs. Miller, — rendering her services. She was speaking of those who had been kind to her, and who were -doing a good deal for her, and she said then that she was requiring a good deal of Miss Lathrop, but then that Miss Lathrop understood that she was to be repaid for what she did; that there was an understanding; that she and Miss Lathrop understood one another in the matter; and that she was to be repaid for whatever she did. I do not recollect that she ever made any definite statement as to just what the recompense was to be,— just exactly what form; that is, the amount-. I have heard her say: ‘When I am done with what I have, those who have done for me shall be well rewarded for what they have done; when I am done with what I have.’ I have heard her express it in those words. I was present at the conversation between Mrs.* Miller and Mrs. Ferguson regarding Miss Lathrop. I have heard Mrs. Ferguson broach the matter to Mrs. Miller, and have heard those two persons discuss the matter of Miss Lathrop’s services to her, and the probability of her receiving proper recompense for the services- she was giving her. As nearly as I can recollect, I have heard Mrs. Ferguson express herself to the effect that people did not generally get their pay when they waited until after the person was done with it; that it had been her experience that people did not generally receive a recompense when they waited, but she thought the proper way to recompense was to give it during the person’s lifetime. They were then discussing this compensation for Miss Lathrop. * * * I cannot, perhaps, recall Mrs. Miller’s exact words, but it was: ‘I intend to recompense those who do service to me. I am not accepting service, — gratuitous service. I am accepting those services with the determination to pay for all such services. They are not gratuitous services.’ I do not think she mentioned at thát time anything about Miss Lathrop understanding that she was to have compensation.”

On cross-examination she at first testified that the conversation with Mrs. Ferguson was about a year or two before Mrs. Miller’s death, but afterwards said she thought it was four or five years; and, when asked to state the substance of what was said, she replied, “Mrs. Miller responded [to Mrs. Ferguson] in the spirit of acquiescing, considerably.” Being interrupted, and told that she was asked for the language, she replied:

“Mrs. Miller replied, in substance, that she was receiving a great deal at Miss Lathrop’s hands, and she realized it, but she was not receiving without the intention of repaying; that it was not gratuitous service; that she would be amply and fully repaid. She spoke, in a general way, that all those — that she was not accepting favors of people without intending to remunerate such persons. * * * From what she said, I took her mind to be that payment was to be made after she was through with her property. That was the meaning that I gained from what she said. She did not mention her will, but she said, in substance, ‘ When .1 am through with what I have, I intend that it shall be put where it shall repay those who have done favors for me.’”

Miss Ferguson testified to the conversation referred to by Miss Parker between Mrs. Miller and her mother. She stated that her mother said to Mrs. Miller that Miss Lathrop was doing a great deal for her, and that she thought Mrs. Miller did not appreciate it, and that—

“Mrs. Miller replied, in substance, that she did, and that, what Miss Lathrop did, she was to remember her for it, and that she was not accepting it and not intending to do something for Miss Lathrop for the work.”

On cross-examination she stated it as follows :

“Mrs. Miller replied, in substance, that she was not intending — that she intended to remember Miss Lathrop for it; that she was not taking it as a gift.”

Miss Green, a school-teacher, who roomed with Mrs. Miller during all the time covered by these services, testified:

“ Mrs. Miller has stated to me that she felt she had a right to expect attention and services from Miss Lathrop, because she expected to compensate her for them.”

On cross-examination she gave the following testimony:

‘ ‘ Q. Didn’t Mrs. Miller say anything about leaving her anything in her will ?
“A. Yes, sir.
Q. What did she say about the manner and form ■of compensation ?
A. She said, ‘ I have provided for Miss Lathrop.’
“ Q. ‘I have provided for Miss Lathrop?’
“A. ‘I have, provided for her.’ These are not her words, of course, but that was the meaning of it ?
Q. Provided for her in her will?
“A. Yes, sir.”

A Mrs. Holden testified that she knew that Miss Lathrop was one of the family after Mr. Miller’s death, and that Mrs. Miller frequently spoke “of Miss Lathrop as giving her attention and care.” She then gave the following testimony:

Q. I will ask you if she has at anytime told you what her relations were with Miss Lathrop, and what she had in mind regarding them.
“A. I was there at one time when Miss Lathrop was away, and we had considerable conversation in regard do the state of her health, and the care that she had, and how much she missed Miss Lathrop when she was gone. She said that Miss Lathrop was always very kind to her in all of her sicknesses, and had done a great deal for her; that when she was away she missed her. And I remarked that I thought it was very — she was very fortunate in having so good a friend to be with her; and why if impressed itself upon my mind at that time was the reply she made. It was something a little unexpected, and hence it impressed itself upon my mind. Her reply was that she did not consider it an act of goodness on the part of Miss Lathrop, for, when pebple were paid for what they did, it could not be called goodness; and she said that Miss Lathrop would be fully paid for what she did for her. That was the extent of the conversation in that respect.”

One Smith G. Ketcham testified that he had a conversation with Mrs. Miller in the winter of 1891-92, in which she said, in substance,—

“She expected Miss Lathrop would be recompensed for all the kindnesses that she had shown her; and before she got through she said that, when she was through with her property, she expected to divide it between Miss Lathrop and Dr. Sinclair.”

Mrs. Pearsall, after testifying that the relations between Miss Lathrop and Mrs. Miller were apparently those of mother and daughter, testified that she heard Mrs. Miller say, in 1890, that—

“She was to provide for Miss Lathrop; that she was going to divide her property between Miss Lathrop and Dr. Sinclair, — equally divide it. She did not state that she had made her will, but that she would make it so, or was going to make it that way.”

This same witness also testified to another conversation, in February, 1892, in which Mrs. Miller referred to the former conversation, and stated that she had then the same mind as before.

“I do not know as it was exactly in these words, but it is the meaning of it.”

Another witness (Mary Marshal) testified that Mrs. Miller once said to her:

“‘I expect to pay Miss Lathrop well for what she is doing for me, when I die; ’ that she once said she would remember Dr. Sinclair and Miss Lathrop alike.”

This testimony falls far short of establishing a contract on the part of Miss Lathrop to render services, and on the part of Mrs. Miller to pay for them. As characterized by claimant’s own witnesses, they were favors and kindnesses performed by one friend for another voluntarily, but undoubtedly with the hope and expectation that the other would remember her by a substantial bequest in her will, and which were recognized and appreciated by Mrs. Miller, and for which she expected to and did make provision. Mrs. Miller had no children, and she recognized her moral obligation to compensate those who had shown her kindnesses. Dr. Sinclair and Miss Lathrop had shown her more kindnesses than others. Miss Parker had also rendered favors similar to those rendered by Miss Lathrop, and she was remembered by a bequest of $100. She might with equal propriety claim a contract, and that she was not fully compensated. The witnesses give the inferences which they drew from the conversations, rather than the conversations themselves. Some of the conversations occurred after Mrs. Miller had made her will of ^1890'. Death has sealed her mouth, and prevented her from appearing in court to answer these vague and indefinite statements; but the acts of these parties, and her wills and .codicils, are a complete refutation of the inference which is now sought to be drawn from them. These conclusively show that this honest and honorable woman understood the relation which existed between them, and what she meant by her statements to these witnesses. She had no thought of any contract relation, nor is there a sentence or act on the part of Miss Lathrop that she so understood it. Mrs. Miller was kind to her, and made her gifts, customary between members of the same family. Miss Lathrop, shortly after her death, said that her home was broken up. Upon these casual conversations, resting entirely in the memory of witnesses who had no interest in remembering them, Miss Lathrop presented a claim amounting to nearly one-half the actual value of the estate, after payment of debts, legacies, and expenses. But, if we give them the most liberal construction possible, they amount to no more than this, viz., the rendition of favors, kindnesses, and companionship in the expectation of a pecuniary reward by the will of Mrs. Miller, and that, as to the amount of such reward, she relied entirely upon the discretion, fairness, and judgment of Mrs. Miller. Is it not absurd to hold,.under this testimony, that these parties understood that Miss Lathrop might appeal to a court and jury, in case she thought that the bequest which she expected was not sufficient, or as much as she thought it ought to have been ? The answer to the second special question states all that can be claimed for this testimony, viz., that Miss Lathrop expected that she would be recompensed by a provision in her will. But this does not make a contract. The law does not permit the estates of deceased persons to be disposed of upon such vague statements, or upon expectations of reward. If there was any expectation of reward by will, — and no other can be claimed, — the record shows that the reward was substantial and liberal. The court should have directed a verdict for the estate.

If, however, it can be held that there was any testimony authoi’izing the submission of the case to the jury upon the theory of the contract, I think errors were committed upon the trial for which it should be reversed. In these cases where an attempt is made to sustain a claim against the estate of a deceased person, whose •mouth is closed, and the claim rests in the uncertain memory of witnesses, scarcely one of whom claims to remember the exact language, but who gives rather his own inference as to the meaning, strict rules governing the admission of testimony and the arguments of counsel should be applied.

(1) Miss Parker and Miss Green were permitted to give their opinions as to the value of Miss Lathrop’s services. They saw but little of them. They had not shown themselves to be qualified to give an opinion. The jury were fully as competent to form a judgment as were the witnesses. The testimony should have been excluded.

(2) Mrs. Pearsall was permitted to testify to statements which she claims were made to her by the deceased, as to how she intended to divide her property at her death, and as to what the deceased regarded the value of her property. These were permitted to go to the jury, under the charge of the court, as competent evidence of the value of the services. This was clearly incompetent, and the testimony should have been excluded.

(3) Complaint is made that the learned counsel for the claimant, in his argument to the jury, traveled outside the record, and made statements and arguments not justified by it. In view of the result reached, we do not deem it necessary to set forth and discuss these statements complained of. We have repeatedly held that counsel, in their arguments, must be limited to the testimony in the case, and that it is the duty of the trial judge to see that counsel are kept within the legitimate bounds of argument.

I think it evident that the claimant cannot make any different case on a new trial, and that, therefore, none should be granted. The estate should recover the costs of both courts.