text:
    GITTINGS v. GITTINGS.
    1. Divorce — Alimony—Agreements for Custody and Support of Children — Statutes—Construction—Equity.
    Section 8641, 3 Comp. Laws (3 Comp. Laws 1915, § 11417), relating to the revision of decrees for alimony on petition by either party, was enacted for the benefit of the children as well as the parents, and where the conscience of the court, upon a proper hearing, is moved, and the court is satisfied as to what will subserve the best interests of the children, a contract in conflict with such provision must be set aside, and such provision for the care, custody, and maintenance of such children made as the 'interest and welfare of the children require.

    2. Same.
    Where the children of divorced parents were 8 and 11 years old, respectively, and their support and maintenance depended upon the earnings of the wife in doing laundry . work, and the husband, was a tenant farmer in good health, it was for the best interests of the children, that the father pay the sum of $2 per week as provided by the original decree for their support regardless of an agreement made after divorce as to the custody and support of the children.
    3. Same.
    The question of the support and maintenance of the children was sufficiently presented under 3 Comp. Laws, § 8641 (3 Comp. Laws 1915, § 11417), so as to not necessitate an independent suit where, on a petition by a divorced husband to compel his divorced wife to comply with the provisions of a divorce decree as to visitation to the children by the husband, the wife by her answer set up the circumstances under which she signed an agreement whereby one of the children was left with her brother to remain until she reached the age of 14 years and plaintiff should be relieved from thereafter paying the sum of $2 per week' for the support of his two children, as was required by the decree, stated that she had no means except her earnings with which to support the children and prayed that plaintiff be required to comply with the terms of the decree with reference to alimony.

    4. Same — Ahmohy—Statutes—Ex Post Facto Efeect.
    Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), an act to facilitate collection of alimony ordered paid in divorce suits, is not given ex post facto effect so as to impair vested rights of defendant in a divorce suit where the court renders a modified order for payment of alimony- to the register of court after the law goes into effect, although the law was not in effect at the time the original decree was rendered.
    Appeal from Hillsdale; Chester, J.
    Submitted June 8, 1917.
    (Docket No. 18.)
    Decided July 26, 1917.
    Bill by Lena M. Gittings against Joel C. Gittings for a divorce. Plaintiff was granted a divorce and given the custody of the children and defendant required to contribute towards their support. On petition of defendant for a modification of the decree: From the order made, defendant appeals.
    Affirmed.

      For authorities discussing the question of liability of father for support of children as affected by decree awarding custody to mother, see note in 2 L. R. A. (N. S.) 851.

      On modification of decree of divorce on account of changed conditions, see note in 44 L. R. A. (N. S.) 1026.

   Fellows, J.

The parties to this proceeding were married February 11, 1903, and were divorced July 17, 1909. The decree, which was granted upon plaintiff’s bill, gave the custody of their three children, Laura, Stella, and Fred, to plaintiff, required defendant to pay $2 per week for their support, and in general terms gave defendant opportunity to see and have the children with him at reasonable times. Fred was but a babe at this time, and died when 11 months old. December 20th, following, on petition of defendant, the decree was modified by making more definite defendant’s right to see and have the children with him. March 24,1910, the parties entered into an agreement, both parties being represented by counsel, whereby it was agreed that plaintiff’s brother might have the custody of the daughter Stella, until she reached the age of 14, and defendant be relieved from thereafter paying the $2 per week. It would appear that on July 27, 1910, the defendant instituted proceedings to punish plaintiff for contempt in failing to comply with the decree with reference to defendant’s right to see the children. The record contains none of the proceedings on this application, but we infer from what is disclosed that it was adjusted by the parties with the aid of counsel. There is also in the answer an allegation that a proceeding was instituted for a further modification of the decree on March 12, 1910; but we find no copy of it, or any further definite reference to it.

On August 14, 1915, this proceeding was instituted by petition of defendant, setting up briefly the proceedings, the fact of the contract of March 24, 1910, and alleging plaintiff’s failure to comply with the provisions of the decree as to visitation to and by the children. Plaintiff answered this petition, among other things setting up that Stella, the daughter who had for a time lived with her brother, had returned to her and had been with her about a year. She set up her financial condition, and asked that defendant be required to comply with the provisions for alimony as provided in the decree as last modified. A hearing was had in open court, and an order was made requiring defendant to pay to the register of the court $2 per week for the support of the two children, absolving defendant from payment of anything for the support of the children from the date of the contract to August 31, 1915, required defendant to give a week’s notice when he desired the custody of the children, and, with other slight modifications, confirmed the decree. From this order, defendant appeals.

It is urged on behalf of defendant that the agreement between the parties is binding, that it was made by them with the assistance and advice of counsel, and should not, under the facts proven, be set aside. It is also urged that the pleadings are not sufficient to warrant the court in granting relief in disregard of its provisions. It must be borne in mind that this contract does not deal with the property rights of the parties, but relates solely to the custody, care, and support of the minor children. Section 8641, 3 Comp. Laws (3 Comp. Laws 1915, § 11417), provides:

“After a decree for alimony or other allowance, for the wife and children, or either of them, and also after a decree for the appointment of trustees, to receive and hold any property for the use of the wife or children' as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree, respecting the amount of such alimony or allowance and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.”

The language of Mr. Justice Bird, speaking for the court in Aldrich v. Aldrich, 166 Mich. 248 (181 N. W. 542), having reference to this statute, is quite pertinent. He there said:

“This statute was enacted for the benefit of the children, as well as the parents, and any agreement which the parents may make in the settlement of alimony ought not to and does not bind the conscience of the court as to what is for the welfare of the children.”

Where the welfare of the child is involved as it is in divorce cases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires. Where the conscience of the court, upon a proper hearing, is moved, and the court is satisfied as to what will best subserve the interest of the child, contracts in conflict with such interest must be put aside, and such provision for the proper care, custody, • and maintenance of such child must be made as the interest and welfare of the child requires. At the time of the hearing, Stella was 8 years old and Laura nearly 11. They were being sent to school and were given music lessons. Their support and maintenance depended upon the earnings of plaintiff in doing washing and ironing for her neighbors. The trial court found that the best interest of these children and their proper support and maintenance required that there should be added to this meager provision a contribution by the father of $2 per week.

We are not inclined to disagree with him. The defendant is a tenant farmer, and so far as the record discloses in good health. For over five years he has not contributed to the support of these children. The trial court saw these parties and heard their testimony. He was in a better position to judge their credibility than we are. We are impressed that he dealt as leniently with defendant as the facts warrant.

The question of the support and maintenance of these children was properly presented by the pleadings. Plaintiff by her answer set up the circumstances under which she signed the contract, stated that she had no means except her earnings with which to support said children, and prayed that defendant be required to comply with the terms of the modified decree, with reference to the payment of alimony. This was sufficient, under the statute above quoted. It did not require an independent suit to set aside the contract before the court had the power under this statute to make suitable provision for these children.

The order appealed from requires the payment of the money to the register of the court. It is urged that this was done pursuant to Act No. 379, Pub. Acts 1913 (3 Comp. Laws 1915, § 11443 et seq.), that this act was passed subsequent to the date of the decree entered in this cause, and that to allow the use of this act is. to give it an ex post faeto effect. The act is entitled “An act to facilitate the collection of temporary and permanent alimony ordered to be paid in suits for divorce.” It is not a penal statute, but regulates the procedure on failure of the husband to pay temporary or permanent alimony. In the instant case the court filed a modified order; the statute was in force when such modified order was filed, although not in force when the original decree was filed. It was within the power of the court and highly proper that the modified order should provide for the payment of the money pursuant to the provisions of the law in force when such modified order was filed, and that the procedure provided by such law be used, if necessary, for the enforcement of the order. Defendant had no vested rights which were infringed.

The order should be, and it is, affirmed, with costs to plaintiff.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Fellows, J. Per Curiam.

license: Public Domain

text:
    CRARY v. MARQUETTE CIRCUIT JUDGE.
    1. Appeal and Error — Common-Law Rights.
    The right of appeal from the judgment of a justice of the peace to the circuit court of a county in a prosecution for violation of a city ordinance did not exist at common law.
    2. Municipal Corporations — Home-Rule Act — Marquette Charter — Ordinances—Justices op the Peace — Judgments—Right op Appeal.
    The home-rule act (Act No. 279, Pub. Acts 1909), § 30 (1 Comp. Laws 1915, § 3333) providing that in all suits and prosecutions arising under the ordinances and charter of the city for which such justice is elected the right of appeal from such justice’s court to the circuit court of the county shall be allowed as in case of appeal from justices’ courts in analogous cases clearly confers the right of appeal from a judgment of a justice of the peace of a city in a prosecution for violation of an ordinance to the circuit court.
    3. Statutes — Construction.
    Where the language of a statute makes its meaning obscure, it is the duty of the courts to construe it, giving it a reasonable and sensible interpretation; but where the language is clear and unambiguous it is only for the courts to obey and enforce it.
    4. Municipal Corporations — Home-Rule Act — Marquette Chaeter — Construction op Statutes.
    The home-rule act is one of the general laws of the State and, under section 36 (1 Comp. Laws 1915, § 3339), no city charter adopted pursuant to its provisions may contravene the provisions of such act.
    Mandamus by Sarah Crary to compel Richard C. Flannigan, circuit judge of Marquette county, to vacate an order dismissing an appeal.
    Submitted April 25, 1917.
    (Calendar No. 27,712.)
    Writ granted July 26, 1917.
    Rehearing denied March 28, 1918.

      C. F. Button, for plaintiff.

      George P. Brown, for defendant.
   Fellows, J.

The plaintiff was convicted in justice’s court of the city of Marquette of a violation of an ordinance of that city entitled “An ordinance relative to nuisances.” She appealed therefrom to the circuit court for the county of Marquette, where her appeal was dismissed on motion of the city attorney, on the ground that no right of appeal was or is provided by law, and that no right of appeal exists. • To set aside such order she here applies for mandamus.

The city of Marquette is governed by a charter prepared, submitted, and adopted pursuant to the provisions of the “home rule act,” so called, being Act No. 279, Public Acts 1909, as amended (1 Comp. Laws 1915, § 3304 et seq.). The right of appeal did not exist at common law. While it may be true, as contended by plaintiff, that it has been the public policy of the legislative branch of the State government to grant the right of appeal in ordinance cases, as evidenced by the general act for the incorporation of cities of the fourth class (Act No. 215, Pub. Acts 1895, chap. 10, § 12, being section 5622, 2 How. Stat. [2d Ed.] § 3014, 1 Comp. Laws 1915) and the general act for the incorporation of villages (Act No. 3, Pub. Acts 1895, chap. 6, § 10, being section 5983, 3 Howl Stat. [2d Ed.] § 2635, 1 Comp. Laws 1915) and the many special acts conferring such right, still we are of opinion that such right must find' more substantial foundation than a former expressly declared legislative policy. Such legislative policy may be of aid, however, in case of doubtful construction; but we do not feel that such is this case.

We do not find it necessary to consider the provisions of the former charters of the city of Marquette, as sections 30 and 36 of the “home rule act” (1 Comp. Laws 1915, §§ 3383, 3339) .are controlling of the question. ■ Section 30 of the “home rule act” provides:

“The proceedings in all suits and actions before said justice and. in the exercise of the powers and duties conferred upon and required of him shall be according to and be governed by the general laws applicable to justices’ courts and to the proceedings before such courts; and in all suits the prosecutions arising under the charter and ordinances of such city the right of appeal or certiorari from said courts to the circuit court of the county, or to any court having jurisdiction, shall be allowed to the parties, or any or either of them, and the same recognizance or bond shall be given as is or may be required by law in case of appeal or certiorari from justices’ courts in analogous cases.”

The language of this section gives the right of appeal in clear and unambiguous language. In fact, the language is so clear and unambiguous as not to require or permit of construction. Where the language of a statute makes its meaning obscure, it is the duty of the courts to construe, giving it a reasonable and sensible interpretation; but where the language is clear and unambiguous, it is only for the courts to obey and enforce it.

Section 36 of the “home rule act” provides:

“No provision of any city charter shall conflict with or contravene the provisions of any general law of the State.”

The “home rule act” is one of the general laws of the State, and charters adopted pursuant to its provisions must square with it. It is not necessary to consider the provisions of the present charter of the city of Marquette. The “home rule act” establishes the right of appeal in ordinance cases for all cities adopting charters pursuant to its provisions; and we find no provisions of the Marquette charter in conflict with or contravening the section above referred to.

It follows that the writ should issue as prayed. The question being a public one, no costs will be allowed.

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

on motion for' rehearing.

Per Curiam.

We determined this case upon what was considered the controlling question and for that reason did not discuss each and all of the questions argued'in the briefs of counsel. Defendant now moves for a rehearing and urges the same questions presented before. It will suffice to say that whether we consider the provisions of the old charter of the city of Marquette alone, the provisions of section 30 of the home rule act (Act No. 279, Pub. Acts 1909, 1 Comp. .Laws 1915, § 3333) alone, or the provisions of said section of the home rule act in connection with the present charter of the city of Marquette, the right of appeal in ordinance cases exists.

The application for a rehearing is denied, but without costs.


author: Fellows, J.

text:
      In re BLODGETT’S ESTATE.
    1. Wins — Construction—Intent oe Testator.
    It is a cardinal canon, a predominating rule in the construction of wills, that the intent of the testator must govern, unless it contravenes fixed rules of law.

      2. Same.
    Where the intent of the testator is expressed in clear and unambiguous language there is no occasion for the application of technical rules of construction.
    3. Same.
    Technical rules of construction should be applied only to aid in arriving at the intent of the testator. .
    4. Same — Ambiguity.
    If the intention of the testator is obscure, and the language ambiguous, resort must be had to the well understood rules applicable to the construction of wills for the purpose of arriving at the ultimate object of the inquiry, viz., the intention of the testator and the solution of the question of what was his will.
    5. Same — Construction—Vested Estates.
    While the law favors vested estates it does not preclude the creation of a vested estate subject to be divested upon the happening of a future event.
    6. Same — Beneficiaries—Right of Testator.
    While the law provides a manner of distribution and descent of property, this does not preclude, except as to the wife, the willing of the entire property to strangers.
    7. Joint Tenancies — Wins.
    While the law does not favor joint tenancies it nevertheless permits their creation.
    8. Wills — Remainders—-Time of Vesting.
    Where a testator by will gives his wife a life estate in land and then provides that after her death it shall go to his children, naming them, “or the survivors of them living at that time,” the remainder, not the enjoyment of it, goes to the survivors of his children living at the time of the death of his wife, as otherwise the words “at that time” would be meaningless.
    9. Same — Construction—Giving Effect to Instrument as a Whole.
    Where there are two constructions to be given a clause in a will, one giving the words force as modifying the preceding words, and the other construction rendering them meaningless and without effect, the construction must be indulged in which gives force and vitality to all parts and expressions in the will.

      10. Same.
    Will construed as a whole as meaning that testator intended that pecuniary legacies should he paid at all events, and that the children surviving his wife’s death should take the residue.

    Error ,to Kent; Perkins, J.
    Submitted June 14, 1917.
    (Docket No. 44.)
    Decided July 26, 1917.
    Birt E. Blodgett, administrator de bonis non of the estate of Chauncey Blodgett, deceased, presented his final account and asked for an order of distribution. The order was granted and Roy Blodgett and others appealed to the circuit court. Judgment reversing the order of the probate court. Birt E. Blodgett and another bring error.
    Reversed, and remanded with instructions.

      Maynard, Freeland & Mwnshaw, for appellants.

      Taggart & Kingston and Corwin & Norcross, for appellees.

      Generally on the question of law governing construction of wills, see note in 2 L. R. A. (N. S.) 443.

   Fellows, J.

Chauncey Blodgett, a resident of the township of Paris, in Kent county, died August 27, 1889. His will was duly admitted to probate. Omitting signature and attestation, it was as follows;

“Know all men by these presents, that I, Chancy Blodgett of the town of Paris, county of Kent and State of Michigan, being of sound and deposing mind and memory and considering the uncertainty of this life, do make, declare and publish this as my last will and testament, as follows:
“First. I direct that all my just debts including funeral expences and expences of administration be paid.
“Second. I give and bequeath to my wife Cornelia E. Blodgett, to have and to hold and the use of all my personal property, rights, and credits of which I shal die possessed or to which I may be entitled at the time of my death, and I do hereby give and grant unto her full right, power and authority to use and controlle the same and to sell and dispose of the same as fully as if the same were her property absolutely, and to employ and make use of the procedes thereof in any way that in her judgment may seam proper, and after her decease I give and bequeath the residue Of all my personial property to my five children, viz. To Eugene William, Birt, Fred, and Jennie, or to such of them as shal be living at the time of my death in case I shal survive my wife, or at the time of my wife’s death,, in case she should survive me, to be divided between said five children or the survivors of them eaqually, after giying Birt one hundred dollars, Fred five hundred dollars, and Jennie two hundred and fifty dollars, and Jennie is to have all.of the goods and Furniture and every thing in the house, after that they are to share and share alike.
“Third. I give and devise to my wife Cornelia E. Blodgett, the use of all my real estate to manage the same as in her judgment seams proper, and to receive the rents, issues and profits of the same for her own use and benifit, and after her death I give and devise all my real property which shal not have been disposed of for the payment of debts and subject to the dower rights of my said wife to my said five children, viz. Eugene William, Birt, Fred and Jennie or the survivors of them living at that time to be divided between them eaquely after giving Birt one hunderd dollars Fred five hunderd and Jennie two hunderd and fifty dollars, and all of the goods and furniture that is in the house as above specifide in the second clause of this will then eaquely share and share alike.
“Fourth. I do hereby authorize and empower my said wife to sell and convey any portion or all of my real estate if it shal be necessary to do so to pay debts that may exist against my estate.
“Fifth. In case my said wife shall not be living at the time of my death then in that event I give devise and bequeath all my property both and personal to my said five children, viz. Eugene William Birt Fred and Jennie or to such of said five children as shal be living at the time of my death, to be divided among them. eaquely after giving Birt one hunderd dollars and Fred five hunderd dollars Jennie two hunderd and fifty dollars and all of the goods and Furniture in the house as above speeifide in the second and third clause in the will, then share and share alike to have and to hold the same unto them and to their heirs forever.
“Sixth. I do hereby appoint my wife, Cornelia E. Blodgett to be executrix of this my last Will and Testament. ■
“Lastly. I do hereby revoke all former wills, declaring this writing alone to be my last will and the whole of it.”

Mr. Blodgett was survived by his widow, Cornelia E., and his five children, Eugene, William, Birt, Fred, and Jennie. He left no debts. September 3, 1915, the widow, Cornelia E., died. She had during her .lifetime used and disposed of the personal property, except a small amount of household goods, leaving the real estate consisting of an 80-acre farm worth $5,800. The only children living at the time of her death were William and Birt, Eugene had died leaving four children, but during his lifetime, by way of mortgage, had assigned any interest he might have in his father’s estate to George W. Roberts. Fred had died leaving no children, and not having been married. Jennie had married, leaving at her death a daughter, Ora Buxton, who is still living.

This case involves, the construction of the third clause of the will, and brings up for review a judgment of the circuit court for the county of Kent reversing an order of distribution entered by the probate court for that county. By the order of the probate court the farm was equally divided between William and Birt, and no interest or claim of any other parties was allowed. The circuit court awarded the special legacy of $100 to Birt, the one to Jennie of $250, and household goods to Ora Buxton her daughter, and, subject to the payment of these special legacies, awarded the farm one-fourth to each Birt and William Blodgett and Ora Buxton and one fourth to the.children of Eugene. Birt and William bring the case here.

It is insisted by the appellees in support of the judgment that the will speaks as of the death of the testator ; that property then vests unless there is a clear and unambiguous direction to the contrary; that the law favors vested estates; that the law favors that construction conformable to the rules of inheritance; that construction disinheriting direct descendants is not favored; that the law does not favor joint estates or survivorship; that meaning must be given to all parts of the will; that construction working intestacy should be avoided; and that the adverbs of time should be construed to relate to the time of enjoyment, rather than the time of vesting.

On the part of the appellants it is insisted that the language of the clause in controversy is clear and unambiguous; that joint tenancies with their right of survivorship are permitted; that if the estate vested at the death of the testator it was subject to be divested by the happening of a future contingency, viz. the death of the devisee; that, taking the will in its entirety, it shows that the testator contemplated and provided for two periods depending on different contingencies when the estate would vest, one upon the. contingency of the death of his wife prior to his death, when the children surviving his death should take the property, the other upon the contingency of his death preceding that of his wife, in which event the children surviving at her death should take the property; that, whether we consider clause 3 alone, or in connection with the context, it shows a clear intent on the part of the testator to give this property to the children surviving a't the death of his wife, and that such intent should govern and control.

It is a cardinal canon, a predominating rule in the construction of wills, that the intent of the testator must govern, unless it contravenes fixed rules of law. If the intent of the testator is expressed in clear'and unambiguous language, there is no occasion for the application of technical rules of construction. Such rules should be applied, and applied only, to aid in arriving at that intent. The intent of the testator was fittingly styled by Lord Coke “the polar star to guide judges in their determination.” Chancellor Kent said:

“The intention of the testator is the first and great object of inquiry; and to this object technical rules are, to a certain extent, made subservient.” 4 Kent’s Commentaries (14th Ed.), p. 534.

Chief Justice Marshall, in the case of Smith v. Bell, 6 Pet. (U. S.) 68, said:

“The first and great rule in the exposition of wills, to which all other rules must bend, is, that the intention of the testator expressed in his will shall prevail, provided it is consistent with the rules of law.”

If the intent of the testator is obscure, the language ambiguous, resort must be had to the well-understood rules applicable to the construction of wills for the purpose of arriving at the ultimate object of the inquiry, viz., the intention, of the testator, the solution of the question: What was his will?

It is true, as contended by appellee, that the law favors vested estates, but it does not preclude the creation of vested estates subject to be divested upon the happening of a future event. It is true that the law provides a manner of distribution and descent of property, but this does not preclude, except as to the wife, the willing of the entire property to strangers. It is true that the law does not favor joint tenancies, but it nevertheless permits their creation. 4 How. Stat. (2d Ed.) § 10666 (3 Comp. Laws 1915, § 11562).

To restate what we have already said, rules of construction of wills are to be used to aid in determining the intent of the testator, but not to obscure it, and must yield where by clear and unambiguous language that intent appears and has been expressed beyond question and beyond cavil.

Let us examine the will here involved, first taking up the clause in controversy, and then considering the context, the will as a whole, from its four corners. By the third clause the testator gave to his wife a life estate of the land in question. He then provided that “after her death” it should go to his children, naming them, “or the survivors of them living ut that .time” Is the intent of the testator clear from this language? If so, our inquiry, so far as this clause standing alone is concerned, is at an end. We think it is. Clearly the remainder, not the enjoyment of it, went to the survivors of his children living at that time. The words “at that time” referred to, and only to, the time of the wife’s death. Any other construction would do violence to the language employed; any other construction would require us to read out of this clause the words “or the survivors of them living at that time.” This we cannot do. The will as written is the will before us. We cannot subtract from or add to its language; all parts must be considered by us and given effect. Otherwise we substitute our will for that of the testator. We cannot, within the compass of this opinion, undertake to discuss the cases cited by counsel on both sides. The authorities are numerous, and not in harmony. The briefs are exhaustive and able. One case, however, the one upon which counsel for the appellees place great stress, and which it is insisted is controlling, should be noted in this connection. We refer to the case of Rood v. Hovey, 50 Mich. 395 (15 N. W. 525). In this case the wife was given the life estate and the remainder “to my children now living, or who may be at the time of her decease or marriage.” It was held that the language “or who may be at the time of her decease” might very well apply to posthumous children, but did not indicate an intent to qualify the former language as to living children. There the language was held to have a meaning, a definite purpose, not a qualifying of the former language, but a provision for children born after testator’s death. Here the words used, unless qualifying the former language, are meaningless, serve no purpose, and might as well have been omitted.

If there are two constructions to be given, one giving them force as modifying and limiting the preceding words, and the other construction rendering them meaningless and without effect, the construction must be indulged in which gives force and vitality to all parts and all expressions in the will. Giving force and effect to all of the language found in this clause, Does the language used import that the survivorship mentioned in this clause refers to the death of the testator, or that of the wife? Clearly it had reference to those children who survived the wife, not to those children who survived the testator.

Let us now consider the will in its entirety, because to arrive at the intent of the testator we must have regard for all provisions of the will and all language used. In clauses 2, 3, and 5 we find the same provisions for pecuniary legacies to three of his children Birt, Fred, and Jennie. There is no contingency attached with reference to any of these children. The language used is unequivocal, and the legacies are absolute and depend upon no condition. In clause 2 of his will testator disposed of his personal property. He gave to his wife full right, power, and authority to use and control it. He provided for the disposal of the residue, however, to his children, naming them, or to such of them as should be living at his death, if he survived his wife, or at his wife’s death, if she survived him. In clause 5 he provides for the contingency of his wife’s death before his, and in that event gives his property to the children who survived him. Taking into consideration the entire instrument, it is clear that testator had in his mind when he executed this, will two contingencies, either of which was liable to happen, and one of which would surely occur, and made provision therefor. These contingencies were: First, that his wife should die first, in which event the property should go to those children who should survive him; second, that his wife should outlive him in which event the property should go to those children who survived her. The testator having in mind two contingencies, either of which might happen, provided two periods at which survivorship should be determined, one of these periods was at his death, contingent upon his outliving his wife, the other at her death, contingent upon her outliving him. When the contingencies happened and one of these periods arrived, the children surviving at that time, and only .those surviving at that time, becamé entitled to the residue of the estate.

Whether we consider the third clause of the will alone, or in connection with the remaining provisions of the will, we are irresistibly driven to the conclusion that it was clearly the intent of the testator that the pecuniary legacies should be paid in any and all events, and that the children surviving his wife’s death should take the residue.

It follows that the judgment of the circuit court must be, and the same hereby is, reversed. The case will be remanded, with instructions to enter a judgment or order awarding the real estate of which the testator died seised to Birt Blodgett, and William Blodgett equally, share and share alike, subject to the pecuniary legacies, which shall be made a lien upon the land. The appellant will recover costs of this court. The appellees, having succeeded in modifying the order of the probate court, will recover costs of the circuit court.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Bird, J., took no part in the decision.


text:
    LUCE v. LUCE.
    1. Witnesses — Mattees Equally within Knowledge of Deceased —Statutes.
    Under 3 Comp. Laws, § 10212 (3 Comp. Laws 1915, § 12553), providing that when a suit is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if called as a witness in his own behalf, shall not be permitted to testify at all as to matters, which, if true, must have been equally within the knowledge of deceased, in a suit by heirs at law of a • deceased person against another heir at law to set aside a deed by deceased to defendant, plaintiffs and defendants are incompetent witnesses to facts equally within the knowledge of deceased.
    2. Deeds — Cancellation of Instruments — Mental Competency —Evidence—Sufficiency.
    On a bill by heirs at law of a deceased person to cancel a deed by deceased to defendant, her brother, evidence held, insufficient to show that deceased, who died from hypersesthetic pneumonia, had passed into a coma or was otherwise mentally unbalanced at the time of execution of the deed.

      3. Same — Deuvery—Escrows—Evidence—Sufficiency.
    Evidence held, sufficient to show an unconditional delivery in escrow of the deed and certificates of deposit to the scrivener who prepared the deed, to take effect upon the death of deceased.
    Appeal from Ionia; Davis, J.
    Submitted June 18, 1917.
    (Docket No. 74.)
    Decided July 26, 1917.
    Bill by James B. Luce and others against Charles Wright Luce and others to set aside a deed and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Fred L. Warner, for plaintiffs.

      Hawley- & Eldred, for defendants.
   Fellows, J.

Plaintiffs James B. Luce, James H. Green, and Orley B. Green are nephews of Emeline Weaver, deceased. Minnie Luce Cook is a niece. They, with defendant Charles Wright Luce, a brother of deceased, are all the heirs at law of Mrs. Weaver. She died on the morning of January 15, 1914, of hypereesthetic pneumonia, a disease commonly called “old age pneumonia.” This bill is filed to set aside a deed to defendant Charles Wright Luce of certain premises in the city of Belding, Ionia county, consisting of a house and lot, worth from $1,000 to $1,200, and a vacant lot worth less than $50, to require an accounting for certificates of deposit aggregating $166, and to restrain disposal of the household goods. The bill was dismissed in the court below, and plaintiffs appeal. The questions presented are those of fact.

The transaction assailed occurred the evening before Mrs. Weaver’s' death, and two grounds are advanced as a basis of relief: First, mental incompetency of deceased; second, want of delivery.

The mental incompetency is claimed to be due to the advanced state of the disease of which she died, as we do not understand it to be claimed that prior to her fatal illness she was mentally incapacitated to transact business. From the medical testimony given upon the hearing it appears to be established that one afflicted with hypereesthetic pneumonia has periods of consciousness and clearness of mentality, alternating with periods of delirium; that when the patients finally lapse into a state of coma they do not recover consciousness, but death results. The plaintiffs claim by the testimony produced by them of several who saw her during the day that Mrs. Weaver was unconscious and irrational most of the time, and we infer that it is their claim that the disease had so far progressed at the time the transaction took place in the evening that she had practically lapsed into a state of coma, or at least was mentally incapacitated to transact the business in hand. The testimony supporting this theory comes quite largely from interested witnesses, several of whom were incompetent under the statute, and practically all of whom had returned to their homes, and were not present when the transaction took place. On the other hand, it is insisted by the defendant, and he produces witnesses who were then present, some of whom are interested, but others of whom are not, who testify, that Mrs. Weaver, at the time of the transaction, was mentally competent to transact the business in hand; that she sent for her papers which were over at a neighbor’s home, directed the procuring of a scrivener, and when he came instructed him as to what she wanted done and when the papers were prepared knowingly and intelligently executed them. ,

The case was heard in the court below before the judicature act took effect, and all testimony offered was received and is made a part of the record. It therefore becomes necessary for us to first determine what testimony is competent under the statute (section 12856, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 12553). The plaintiffs, by this proceeding, are attempting to set aside a deed from the deceased to defendant Charles Wright Luce. He is the grantee of the deceased and her assignee. Plaintiffs were therefore not competent witnesses to facts equally within the knowledge of the deceased. Schuffert v. Grote, 88 Mich. 650 (50 N. W. 657, 26 Am. St. Rep. 316); Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143); Lloyd v. Hollenback, 98 Mich. 203 (57 N. W. 110); Bailey v. Holden, 113 Mich. 402 (71 N. W. 841); Shepard v. Shepard, 164 Mich. 183 (129 N. W. 201). Counsel for defendants concede that defendant Charles Wright Luce is prohibited by the statute from testifying to facts equally within the knowledge of deceased, and only examined him as to other matters. They claim, however, that plaintiffs, by their cross-examination, waived the statute, and some testimony was then given by him which would be prohibited by the statute. We do not find that plaintiffs went far enough in their examination of this witness to waive their objection. We accept counsel’s concession, but do not follow their claim; we eliminate from our consideration the testimony of defendant Charles Wright Luce and that of the plaintiffs as to facts within the knowledge of deceased.

With the incompetent testimony eliminated, the case strongly preponderates in favor of defendants. It appears clearly, we think, that Mrs. Weaver had long entertained an intention to leave her property to defendant. She was under many obligations to him. He was the one who had looked after her wants for many years. She had lived in his family at times, paying a nominal sum for board. The property came to her from their mother. The relations between her and the nephews and their families were friendly, but not close. Some of them did not attend her funeral. On the afternoon in question she asked that her deeds and papers be brought from a neighbor’s where they were; the neighbor was away from home at the time, but they were later procured. When they were procured she sent for the scrivener, and upon his arrival instructed him what she wanted done. The deed was prepared and executed, and the certificates of deposit indorsed. The testimony of the scrivener is somewhat unsatisfactory, and his recollection does not appear to be very distinct. This is not surprising when we learn that he has been drawing papers for many people for 30 years, and his testimony was given some considerable time after the transaction. The recollection of others present at the time, however, is definite and convincing, and satisfies us that the deceased had not lapsed into a state of coma, nor was she in any way mentally unbalanced or delirious. Her acts and conduct as proven were in- every way rational. She knew where her papers were, what she wanted to do, and did it. We are satisfied that the transaction represents her intelligent act. We cannot, in the face of the testimony as to what she actually did, speculate and indulge in conjectures as to the exact stage of her fatal malady, or assume that it had progressed sufficiently to render her incapacitated to do the things the evidence shows she did do.

The deed and certificates of deposit were delivered to the scrivener. It is claimed by the plaintiffs that it was understood that they should be returned to Mrs. Weaver in case she recovered; that the delivery did not constitute an unconditional delivery in escrow. It is claimed by the defendant that the scrivener’s instructions were absolute to deliver to defendant Charles Wright Luce at the death of the grantor, and that there was nothing said about the papers being returned to Mrs. Weaver in case she recovered. Upon this question the testimony of the scrivener is also unsatisfactory and uncertain. It is apparent that his recollection is- not definite, and there is some force in counsel’s contention that his testimony is open to either construction. The other witnesses present at the time of the transaction say nothing was said about the papers being returned in case Mrs. Weaver recovered, and that the delivery in escrow was unconditional. The trial court who saw the witnesses found with the defendants upon' this as well as the other question. We are not inclined to disagree with his conclusions. While we are- considering the case de novo, we cannot overlook the fact that the advantage of seeing the witnesses, noting their appearance, their manner, frankness, or want of frankness, was with the trial judge. The testimony in this record satisfies' us that he correctly disposed of the case, and that the decree should be affirmed.

Defendants will recover costs.

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


text:
    PEOPLE v. LANKTON.
    Intoxicating Liquors — Local Option Law — Validity—Constitutionality.
    The local option law, Act No. 207, Pub. Acts 1889, as amended by Act No. 183, Pub. Acts 1899, and Act No. 170, Pub. Acts 1903 (2 Comp. Laws 1915, § 7093 et seq.), in so. far as it provides that the sale of wine or eider from home-grown fruit in quantities of not less than five gab Ions, and the sale at wholesale of wine or cider manufactured in a county to parties residing outside of the county may be made, is invalid under Art. iv, § 2, of the Federal Constitution, providing that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States, but the rest of the act is valid.
    Exceptions before judgment from Eaton;
    Smith, J. Submitted June 15, 1917.
    (Docket No. 136.)
    Decided July 26, 1917.
    C. M. Lankton was convicted of violating the local option law.
    Affirmed.

      Rosslyn L. Sowers (L. H. McCall, of counsel), for appellant.

      Harry H. Partlow, Prosecuting Attorney, for the people.
   Fellows, J.

The local option law was in force in Eaton county at the time respondent there sold to one Flory 10 gallons of hard cider manufactured by him. The sale is not disputed, but it is insisted that this court did not in the case of People v. Eberle, 167 Mich. 477 (133 N. W. 519), hold the entire provisions of the exceptions found in the acts of 1899 and 1903 invalid, and that respondent, notwithstanding the holding in that case, might sell fermented cider in quantities of not less than 5 gallons without being guilty of a violation of the local option law.

The local option law was passed in 1889 (Act No. 207, Pub. Acts 1889; 2 Comp. Laws 1915, § 7080 et seq.). It continued in force without amendment until 1899 when by Act No. 183 certain amendments were adopted; section 15 having added to its proviso the following words:

“Nor prohibit the sale of wine or cider from homegrown fruit in quantities of not less than five gallons.”

By Act No. 170 of the Public Acts of 1903 (2 Comp. Laws 1915, § 7093), there was added to the proviso of section 15, after the words just quoted, the following:

. “Nor shall the provisions of this act be construed to prohibit the manufacture of wine or cider; nor shall the provisions of this act be construed to prohibit the sale at wholesale of wine or cider manufactured in said county to parties who reside outside of said county.”

In the Eberle Case these provisions, and all of them, were assailed as offending section 2, art. 4, of the Federal Constitution, which provides:

“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”

We there construed these provisions, these exemptions, and it was very clearly pointed out that they applied and applied only to the products of homegrown fruit, and, as so construed, this court held they were discriminatory, in conflict with the Federal Constitution, and void. But it was further held, that eliminating these invalid exemptions, the balance of the law was valid, workable, and capable of being administered independently of them. The case was taken to the Federal Supreme Court and there affirmed; Eberle v. Michigan, 232 U. S. 700 (34 Sup. Ct. 464). Mr. Justice Lamar, who delivered the opinion of that court, said:

“On the other hand, in the case at bar the original local option law of 1889 had been held to be constitional as a whole, and its validity could not be impaired by the subsequent adoption of what were in form amendments but, in legal effect, were mere nullities.”

A perusal of the opinion of this court and that of the United States Supreme Court clearly demonstrate that in the Eberle Case the exemptions mentioned and here invoked were held to be void, nullities, and of no more force than as though they had never been passed, and the balance of the act valid. Unless we overrule the Eberle Case this conviction must be affirmed. We are not inclined so to do; it was correctly decided.

The conviction is affirmed, and the case remanded for sentence.

Kuhn, C. J., and Stone, Ostrander, Bn®, Moore, Steere, and Brooke, JJ., concurred.


author: FELLOWS, J.

text:
      In re CURTIS’ ESTATE. SOULE v. HENRY.
    1. Appear and Error — Scope oe Review — Objections not Raised in Trial Court.
    Where in some instances no objections are made as to cross-examination of defendant’s witness in a will contest in the trial court and in others none is made until after the testimony is received, such objections are unavailable on appeal.
    2. Same — Scope oe Review — Instructions—Failure to Request —Harmless Error.
    In a will contest, in which the issues are undue influence and mental incapacity, improper remarks by proponent’s attorney and improper cross-examination of a witness are not reversible error where the court would have been warranted in withdrawing the question of undue influence from the consideration of the jury, and the evidence tending to show mental incapacity was meager, and that tending to show capacity abundant,' and contestant fails to request an instruction -with reference to such remarks and questions.
    3. Wills — Undue Influence — Instructions.
    In a will contest an instruction that the influence to vitiate the will must have been such as to amount to force and coercion, destroying testator’s free agency, and that there must be proof that the will was obtained by such coercion, was proper.
    4. Same.
    An instruction that the undue influence which will defeat a will need not be by physical force, constraint, or coercion, but it must be an influence, either of fraud, artifice, or .some other act of human ingenuity and cunning with an overmastering will, such as subordinates the will of the testator to the will of another so that the alleged will does not show the free will of the testator, but the will and purpose of another, was proper.

    5. Same.
    An instruction that if the will was obtained by kindness amounting in itself to such persuasion as to overcome the will and natural inclinations of the testator the same would be void and no subsequent act or parol ratification could again make it a valid will, was proper.
    6. Same — Mental Competency — Instructions—Burden of Proof.
    An instruction that the burden of proof was upon the contestant to show that testator, at the time he executed the instrument, was mentally incompetent to make same, was proper.
    7. Same — Mental Competency — Presumptions—Statutes.
    Under Act No. 314, Pub. Acts 1915, chap. 17, § 58 (3 Comp. Laws 1915, § 12546), providing that in proceedings for the probate of wills it shall not be necessary for the proponent in the first instance to introduce any proof to show the competency of the decedent to make a will, but the like presumption of mental competency shall obtain as in other cases, the presumption as to mental capacity continues throughout the trial and a contestant assailing such mental capacity has and must assume the burden of proof.
    Error to Allegan; Cross, J.
    Submitted January 2, 1917.
    (Docket No. 7.)
    Decided July 27, 1917.

      Holland L. Soule presented for probate the last will and testament of Frank W. Curtis, deceased. The will was allowed in the probate, court, and Nellie F.' Curtis Henry appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      W. J. Barna/rd, for appellant.

      Clare E. Hoffman and Edward J. Anderson, for appellee.

      On burden of proof of testamentary capacity, see notes in 17’ L. R. A. 494; 36 L. R. A. 733.

   FELLOWS, J.

Frank W. Curtis at the time of his death was 64 years old. He was by occupation a painter, paperhanger, and engaged in other manual labor. He had lived for many years in Plainwell, Allegan county, and was the owner of two houses in that village, each worth about $1,800 or $1,900; one, the older of the two, being free from incumbrances, the other somewhat incumbered. His personal property was limited in amount, and consisted of a few household goods and some paint worth, all told, about $200. He. and his wife separated in 1900, she obtaining a divorce. Their only daughter, contestant here, was then about 20 years old, and went with her mother. She, however, visited him and brought and sent him presents and did some housework about his home. In April of 4910, Harry Shaw and Grace, his wife, made arrangements with Mr. Curtis that they should occupy one of his houses, the older one, board him, do his washing and mending, he to have his own room and was to pay them $1 per week, in- addition to the use of the house. This sum was later, increased to $5 per month. He frequently expressed entire satisfaction with the home and care given him by the Shaws, and later told his friends of his intention to leave them the home. On November 21, 1914, Mr. Curtis sent for Mr. Holland L. Soule, whom he had known for a great many years, and who had been engaged in the banking and insurance business in Plainwell, and requested him to make his will. He told him he wanted to give the house they were living in and his personal property to Mr. and Mrs. Shaw and his other house to his daughter, Nellie. Mr. Soule prepared the will accordingly, and the same was duly executed. Mr. Curtis also informed Mr. Soule that he was fearful that his daughter might attempt to break the will, and thought it would be a good plan to have a deed to the Shaws of the house and lot executed, and left in a third party’s hands to be delivered at his death. The deed was also prepared by Mr. Soule and was executed by Mr. Curtis and was taken away by Mr. Soule, with instructions from Mr. Curtis to deliver to the Shaws at his death. On the 17th of December following, Mr. Soule was again called to the Curtis home and informed by Mr. Curtis that he was not satisfied with the deed not being on record, and that he wanted the deed recorded, and wanted a life lease and agreement for his support and care from the Shaws. The life lease and agreement were accordingly prepared and executed, and the deed to the Shaws was then recorded. Mr. Curtis lived until June 11th following, and was cared for by the Shaws. He frequently expressed his entire satisfaction with the care given. After his death the will was offered for probate and contested by the daughter, Nellie, on the grounds of undue influence and mental incapacity. It was admitted to probate in the probate court and its validity sustained on appeal to the circuit court. Contestant brings the case here, and her counsel groups the assignments of error under three heads, viz.: First, errors committed in prejudicial cross-examination and prejudicial remarks made by proponent’s counsel; second, errors in charge of the court given sua sponte; third, error in refusing contestant’s request to charge as to the burden of proof.

We shall follow the plan outlined by contestant’s counsel in his brief and consider the errors assigned in the order named:

First. All of the errors assigned on this branch of the case are not available to the contestant; in some instances no objection at all was made, in others none was made until after the testimony was received; in other instances the trial court sustained the contestant. In some instances thé conduct of proponent’s attorney was subject to criticism, but this Case is by no means a close one. A careful examination of the record satisfied us that the trial court would have been justified in withdrawing the question of undue influence from the jury. Severance v. Severance, 90 Mich. 417 (52 N. W. 292); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); Peninsular Trust Co. v. Barker, 116 Mich. 333 (74 N. W. 508); Blackman v. Andrews, 150 Mich. 322 (114 N. W. 218); In re Williams’ Estate, 185 Mich. 97 (151 N. W. 731); In re Ganun’s Estate, 174 Mich. 286 (140 N. W. 561). The evidence tending to show mental incapacity was meager; the evidence tending to show mental capacity was abundant. Contestant made no suggestion to the court that the jury be instructed with reference to counsel’s remarks or questions. Under the circumstances of this case we are convinced no prejudicial error was committed in this regard.

Second. Error is assigned upon the instruction of the court upon the question of undue influence; particular stress being laid upon the following excerpt:

“The influence to vitiate this will must have been such as to amount to force and coercion, destroying his free agency and there must be proof that the will was obtained by this coercion.”

The court further instructed the jury upon this subject:

“You are further instructed that the undue influence which will defeat a will need not be by physical force, constraint, or coercion, but it must be an influence, either of fraud, artifice, or some other art of human ingenuity and cunning with an overmastering will, such as subordinated the will of the testator, Frank W. Curtis, to- the will of another, so that the alleged will does not show the free will of Frank W. Curtis, but the will and purpose of another. * * *
“You are instructed that, if the will in this case was obtained by kindness amounting in itself to such persuasion as to overcome the will and natural inclinations of the testator, the same would be void and no subsequent act or parol ratification could again make it a valid will.”

It is unnecessary to quote further from the charge upon the question of undue influence, as no error was committed in the instructions upon this subject. Maynard v. Vinton, 59 Mich. 140 (26 N. W. 401, 60 Am. Rep. 276) ; In re Gamin’s Estate, supra. The trial court would have been justified in withdrawing this branch of the case from the consideration of the jury; he did not do so, but fairly submitted it. We have examined the other errors assigned upon the charge, and find all of.them without merit; the charge was an extremely fair one to the contestant, and she has no cause for complaint.

Third. The contestant requested the court to instruct the jury that the burden of proof upon the question of mental capacity rested with the proponent. The court, however, charged:

“The burden of proof in this case is upon the contestant, Nellie F. Curtis Henry, to show that Frank W. Curtis at the time' he executed this instrument was mentally incompetent to make the same.”

Error is assigned both upon the refusal to instruct and upon the instruction as given. These assignments of error raise the important question in the case. The requests were in accordance with the holdings of this court in numerous cases; among them see Beaubien v. Cicotte, 8 Mich. 9; Taff v. Hosmer, 14 Mich. 309; Aikin v. Weckerly, 19 Mich. 482, 503; McGinnis v. Kempsey, 27 Mich. 363; Prentis v. Bates, 93 Mich. 234, 245 (53 N. W. 153, 17 L. R. A. 494); In re Mansbach’s Estate, 150 Mich. 348 (114 N. W. 65). Unless the rule long established and adhered to by this court as to the burden of proof upon the question of mental capacity in will cases has been changed by the recent judicature act, these assignments of error are well taken. In actions seeking to set aside deeds on the grounds of mental incapacity, the burden rests with the party assailing the instrument; in actions upon contracts, written instruments, and negotiable paper, the burden is upon him alleging mental incapacity. This jurisdiction had, however, adhered consistently to the rule announced in the earlier decisions requiring the proponent in will cases to establish mental competency by a fair preponderance of the evidence, and the usual presumption of sanity and competency which obtained in other cases was not sufficient to carry a will case to a jury. That this jurisdiction was not in accord with many other jurisdictiohs on this question is illustrated by the following cases cited by Mr. Justice Grant in his dissenting opinion in Prentis v. Bates, supra: McCulloch v. Campbell, 49 Ark. 367 (5 S. W. 590); Saxon v. Whitaker’s Executor, 30 Ala. 237; Pettes v. Bingham, 10 N. H. 514; Perkins v. Perkins, 39 N. H. 163; Rush v. Megee, 36 Ind. 69; Turner v. Cook, 36 Ind. 129; Chandler v. Barrett, 21 La. Ann. 58 (99 Am. Dec. 701); Mullins v. Cottrell, 41 Miss. 316; Fee v. Taylor, 83 Ky. 259; Harris v. Hays, 53 Mo., 96; Taylor v. Creswell, 45 Md. 430; Elkinton v. Brick, 44 N. J. Eq. 158 (15 Atl. 393); McCoon v. Allen, 45 N. J. Eq. 708 (17 Atl. 824); Trumbull v. Gibbons, 22 N. J. Law, 155; Meeker v. Boylan, 28 N. J. Law, 274; Blake v. Rourke, 74 Iowa, 519 (38 N. W. 394); Stephenson v. Stephenson, 62 Iowa, 163 (17 N. W. 456); Grubbs v. McDonald, 91 Pa. 236; Egbert v. Egbert, 78 Pa. 326; Thompson v. Kyner, 65 Pa. 368; Carpenter v. Calvert, 83 Ill. 62; Wilbur v. Wilbur, 129 Ill. 392 (21 N. E. 1076); Allen v. Griffin, 69 Wis. 537 (35 N. W. 21); Barnes v. Barnes, 66 Me. 300.

We may assume that the commission which framed the judicature act and the legislature which passed it had this situation in mind. In the chapter on Evidence (see Act No. 314, Pub. Acts 1915, chap. 17, § 58, 3 Comp. Laws 1915, § 12546) it is provided:

“In proceedings for the probate of wills, it shall not be necessary for the proponent in the first instance to introduce any proof to show the competency of the decedent to make a will, but the like presumption of mental competency shall obtain as in other cases.”

The power of the legislature to prescribe upon whom the burden of proof shall rest or to alter the rule announced by the court upon that subject is not denied, but it is vigorously contended that the section above quoted only changes the rule as to the amount of proof required in the first instance to make out a prima facie case, and does not prescribe a rule of presumption that continues throughout the trial. We cannot accede to so narrow a construction. To so hold would be to say that it was the legislative intent that a presumption of mental competency existed at the beginning of the trial, only to be dissipated upon the trial by attack; we cannot accede to the view that under the section above quoted a presumption of mental capacity exists at the beginning of the trial, but that at some stage of the proceedings that presumption vanishes, and the burden again shifts back upon the proponent. Such a construction would not only do violence to the purpose of the section, but would not give force to all the language thereof. The section provides, not only that proof of mental capacity shall not be required in the first instance, but also piovides, “But the like presumption of mental competency shall obtain as in other cases.” In other cases there is a presumption of mental capacity, not only in the first instance, at the beginning of the trial, but also at its close. Proceedings for probate of wills by this section now have the same presumption of mental capacity that other cases involving that question have; in other cases the party assailing such mental capacity has and must assume the burden of proof.

It follows that the court correctly refused contestant’s requests, and correctly instructed the jury as to the burden of proof. The judgment must be and is affirmed.

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


author: Moore, J. Kuhn, C. J.

text:
    C. H. LITTLE CO. v. CADWELL TRANSIT CO.
    1. Contracts — Assignments.
    A contract whereby a company engaged in navigation agrees to carry sand and gravel during a certain season at specified prices, the bills to be paid monthly and the contracts of sale to be assigned to the carrier as security, if demanded, is not personal and may be assigned where there have been no dealings between carrier and assignee, and there is no claim that the latter is less responsible than the assignor.
    2. Same — Assignments—Monopolies—Evidence—Admissibility.
    In an action by an assignee.on a contract, evidence that the assignment was procured for the purpose of doing 197 — Mich.—31. away with a competitor and is unlawful is inadmissible where there is nothing on the face of the contract or the assignment to indicate its unlawful purpose.
    Kuhn, C. J., and Bird, J., dissenting.
    Error to Wayne; Codd, J.
    Submitted April 6, 1916.
    (Docket No. 23.)
    Decided July 30, 1917.
    Rehearing denied September 28, 1917.
    Assumpsit by the C. H. Little Company against the Cadwell Transit Company for breach of a contract to deliver sand and gravel. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Campbell, Bulkley ■& Ledyard (Henry M. Campbell and Charles H. L’Hommedieu, of counsel), for appellant.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long, of counsel), for appellee.
   Moore, J.

This suit was brought to recover damages for the breach of a contract made between the B. & O. Sand & Gravel Company and the defendant, which contract was assigned by the B. & O. Sand & Gravel Company to the plaintiff. . It was agreed in open court that if plaintiff was entitled to recover anything it was the sum of $2,800.

The record bears out the following statement of facts which is taken from the brief of counsel :

“The contract was entered into April 3, 1912, between the defendant and C. S. Owen and J. T. Belanger, doing business as the B. & O. Sand & Gravel Company. It was to continue during the navigation season of 1912. The Cadwell Company was the owner of the vessel C. W. Cadwell. The Cadwell Company was to ‘carry sand and gravel in such quantities of approximately 500 cubic yards per week’ up to the capacity of the vessel, as might be required by the B. & O. Company. The deliveries were to be made ‘to the dock of the parties of the second part at Detroit or other points as are herein provided for, having in view the Solvay Process Company dock or such other dock as is. accessible and convenient to navigable waters, and for the delivery of sand and gravel on the Detroit river in the said city of Detroit, or in the River Rouge as hereinafter set out.’ The price for carrying was 37 cents per yard for sand and 48, 50, and 52 cents per yard, for gravel, depending upon the distance, whether within 40, 50, .or 60 miles from Detroit. Payments were to be made ‘for the quantities delivered during the previous month, on the twelfth day of the following month for all previous months’ deliveries.’ As. security for payment the B. & O. Company was, ‘on the request’ of the Cadwell Company, to assign any contract made by the B. & O. Company for the sale of the sand and gravel being carried by the Cadwell Company. Upon the opening of navigation in 1912 the parties entered upon the performance of this contract, and so continued until October 21, 1912, at which date the B. & O. Company assigned the contract to the C. H. Little Company, of which assignment the Cadwell Company was at once given notice in writing. While the parties were engaged in the performance of the contract, the B. & O. Company made a contract wth the Superior Sand & Gravel Company under date of May 8, 1912, whereby the Superior Company was to take from the B. & O. Company 1,400 yards of gravel and 2,100 yards of sand per week during the navigation seasons of 1912, 1913, and 1914. The price for the gravel was 65 cents per yard and for the sand 43 cents. This contract was made with express reference to the Cad-well contract. It was a sale by the B. & O. Company to the Superior Company of all the sand and gravel which the Cadwell Company was to deliver to the B. & O. Company. This contract was also assigned by the B. & O. Company to the Little Company on the same day as the contract with the Cadwell Company was assigned, and the Superior Company was at once given notice in writing of such assignment.
“The Cadwell Company replied to the notice of assignment October 25, 1912, sending its reply to both the assignor (the B. & O. Company) and the assignee (the Little Company). The reply was as follows:
“ ‘We hereby notify you that the said assignment is in breach of the said contract, as you have no right to assign the same. We hereby declare said contract forfeited. We have further notice that the contract made between the Superior Sand & Gravel Company and yourselves has been assigned to the C. H. Little Company. We therefore further notify you that the said assignment is in breach of clause 6 of our said contract, whereby you undertake to assign to us all such contracts, as security for the payment of the sums of money due us, from time to time. We now declare the said contract made between us forfeited and of no force and effect.’
“The Superior Company at the same time replied to the notice of assignment of its contract with the B. & O. Company, stating:
' “ ‘We hereby declare the same canceled and at an end, for the reasons: First, that said contract is not assignable, and second, because the action was taken in violation of the statutes of the State of Michigan respecting the creation of monopolies.’ * * *
“During the navigation season of 1912, after October 21st, the steamer Cadwell was seen unloading sand on the Superior Company’s dock. The Little Company, at the time of the taking over of these contracts, was ready to have them carried out according to their terms. If the Cadwell Company had gone on with the contract, instead of canceling it, it would have been required to deliver 3,500 yards per week for the remainder of that season in quantities of substantially 1,400 yards of gravel and 2,100 yards of sand.
“The plaintiff offered to show that if the defendant had notified the plaintiff that the defendant would not deal with the plaintiff on credit, the plaintiff Would have paid cash. This was excluded. The plaintiff also offered to show that it was its intention that the Cadwell Company should go on delivering sand to the Superior Company under the contract. This likewise was excluded. With reference to the taking over of the contracts by the Little Company it appeared that the B. & O. Company approached the general manager of the Little Company, and that after consultation with the board of directors it was decided to purchase the contracts. A number of leases for sand and gravel beds were taken over at the same time. If the Little Company could not have furnished the Solvay dock for the unloading of the gravel for any reason, the Little Company had other docks which would have answered the description in paragraph 1 of the Cad-well contract, and had railroad facilities and docks upon whch the sand and gravel could have been delivered just as conveniently as at the Solvay dock.
“The defendant, under the third paragraph of its plea, sought to introduce testimony _ which _ it was claimed would tend to show that the plaintiff did not in fact intend to carry out the contract with the Cadwell Company. This was excluded over the objection and exception of the defendant, on the ground that, it was not within the averments of the plea. The defendant likewise sought to show that the plaintiff had breached the contract of the Superior Company, in that the plaintiff had refused to deliver any more gravel under the terms of the contract, or to deliver any gravel except at a higher price than in the Superior contract. This was excluded because not stated as a reason for the rescission by the Superior Company at the time it received notice of the assignment and rescinded the contract.
“Defendant further sought to show that it would not have entered into such a contract as the contract in question with the plaintiff either at the time the contract was entered into with the B. & O. Company or at the time it was assigned, and would not have made a contract extending credit to the plaintiff.”

There are two questions presented for consideration: (1) The assignability of the contract; (2) The application of the laws relating to monopolies.

Is the contract assignable? Counsel say it is not consistent with the rights and interest of the contracting party to be compelled, by assignment against his will, to deal with another who, for any reason, was so objectionable that he would not originally have entered into contract relations with him. If, for example, the defendant had had business dealings with the plaintiff, and its experience had been such that, because of unfair dealings and disregard of contract obligations on the part of the plaintiff, the defendant would not again voluntarily have entered into contract relations with such company, it clearly would be grossly unjust to compel it, without its consent and at the instance of the obnoxious party to do so. The contracting party also has a right to decide to whom he will extend credit, without giving any reason therefor.

The question of the assignability of contracts had the attention of this court in the case of Northwestern, etc., Lumber Co. v. Byers, 188 Mich. 534 (95 N. W. 529). That case came to this court from the circuit court of which Justice Stone, now of this court, was then presiding judge. He filed a written opinion in the case which reviewed the authorities so fully and accurately that it was adopted by this court. The case is so recent and so accessible that it is unnecessary to do more than refer to it.

The same question arose again in the case of Voigt v. Heating Co., 164 Mich. 539 (129 N. W. 701). In this case the bills were payable monthly, and the heating company had the right to require security for the payment of the steam expected to be consumed. It was claimed, as in the instant case, that the contract was personal and could not be assigned. This court held otherwise, and cited the case of Northwestern, etc., Lumber Co. v. Byers, supra, and the last edition of the fifth volume of American and English Encyclopedia of Law and Practice, at pages 885, 886, and 906. It is difficult to see how the personal element entered into the contract involved here. What difference could it make to the defendant whether the sand and gravel were furnished by the B. &. O. Sand & Gravel Company or by the plaintiff.

As to the matter of payment defendant could insist upon being made secure if it thought C. H. Little & Co. was not responsible. In the instant case the plaintiff took the contract subject to the liabilities of its assignor. The defendant, if it desired, could require an assignment of the contracts for the sale of the sand and gravel carried by the Cadwell Company. If it required such an assignment from C. H. Little Company, it would be bound to make it just the same as the B. & O. Company would have been required to make it if the contract had not been assigned by it. There is no claim that the C. H. Little Company was less responsible than the B. & O. Company, and by assigning the contract the B. & O. Company was not released from its performance. See Northwestern, etc., Lumber Co. v. Byers, supra, and Voigt v. Heating Co., supra.

Counsel say:

“The plaintiff is not entitled to enforce the assignments, even if otherwise valid, because they were obtained for an unlawful purpose.”

It is urged that the assignment was procured for ths purpose cjf doing away with a competitor, and is therefore unlawful. It was proposed to show this by testimony outside of the written contract and the assignment.. Certainly there is nothing upon the face of the contract or the assignment that would indicate an unlawful purpose. If this litigation was between the original parties to the contract, for some failure to perform, the defense attempted here could not be made. We think this feature of the case is within the principles stated in International Harvester Co. v. Eaton Circuit Judge, 168 Mich. 55 (127 N. W. 695, 30 L. R. A. [N. S.] 580, Am. & Eng. Ann. Cas. 1912A, 1022).

The other questions have been considered, but do not call for discussion.

Judgment is affirmed, with costs to appellee.

Stone, Ostrander, and Steere, JJ., concurred with Moore, J.

Kuhn, C. J.

(dissenting). On the trial of this case an offer was made by the defendant to introduce testimony to show that at the time the contract was entered into, it would not have 'made such a contract with the C. H. Little Company, and that it would not have been willing to extend credit to that company. This testimony was excluded by the court. In my opinion this was clearly admissible under the rule announced in a case cited in the opinion of Mr. Justice MOORE, Northwestern, etc., Lumber Co. v. Byers, 138 Mich. 534 (95 N. W. 529), where Mr. Justice Stone, then circuit judge, stated the rule to be as follows:

• “I think that the true doctrine is that where an executory contract is not necessarily personal in its character, and can, consistent with the rights and interests of the adverse party, be fairly and sufficiently executed as well by the assignee as by the original contractor, and when" the latter has not disqualified himself from a performance of the contract, it . is assignable.” (Italics mine.)

Exclusion of this testimony was clearly reversible error, but I am also satisfied that the court should have directed a verdict for the defendant upon the record as made, for the rule should be and is that a contracting party has the right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In my opinion it could not be said to be “consistent with the rights and interests of the adverse party” to take away from him the right to decide to whom he will extend credit. It should be borne in mind that the Superior Sand & Gravel Company, whose contract with the B. & O. Company was likewise assigned to the C. H. Little Company, was the active competitor in business of the C. H. Little Company. The effect of the assignment of the contract between the B. & O. Company and the defendant in this case was to compel the Superior Sand & Gravel Company to accept deliveries from an active competitor. Arkansas Valley Smelting Co. v. Mining Co., 127 U. S. 379 (8 Sup. Ct. 1308); Hardy Implement Co. v. Iron Works, 129 Mo. 222 (31 S. W. 599); Boston Ice Co. v. Potter, 123 Mass. 29 (85 Am. Rep. 9); Detroit Postage Stamp Service Co. v. Schermack, 179 Mich. 266 (146 N. W. 144, Am. & Eng. Ann. Cas. 1915D, 287).

Because of this conclusion it will be unnecessary to determine whether because of the lack of novation it should be said that the situation between the plaintiff and defendant lacked mutuality of obligation or contract. The judgment should be reversed, and no new trial granted, with costs to appellant.

Bird, J., concurred with Kuhn, C. J. Brooke, J., did not sit. Person, J., took no part in the decision.