author: Moore, J.

text:
    ROOT v. SNYDER.
    1. Deeds — Contracts—Consideration.
    Conveyances of property so as to create a joint tenancy with survivorship, executed to the defendants in consideration that they should move from Washington, D. C., to Bay City, Michigan, and make their home with complainant, care for him and manage his property, are supported by a sufficient consideration, where the defendants had undertaken performance in good faith, materially changing their manner of life and circumstances, and had been prevented from further carrying out the contract by the acts of the complainant.
    2. Same — Perpetuities—Statutes.
    A deed of real property to four persons as joint tenants with right of survivorship is not repugnant to the statutes against perpetuities, notwithstanding the employment of the words ‘ ‘ to their heirs and assigns and to the survivors or survivor of them, and to the heirs and assigns of the survivors or survivor of them foreverthe words ‘ ‘ heirs ” not being intended as words of purchase, and operating only to indicate that the estate conveyed is in fee simple.
    3. Same — Conditions—Support.
    Where it is apparent that the feelings between the parties have so changed that the contract to live together in complainant’s home cannot be performed with harmony as they intended, the court of equity, while it cannot create a new contract for the parties, may enter a decree by which the equities of all are adjusted.

      Cross-appeals from Bay; Collins, J.
    Submitted April 7, 1910.
    (Docket No. 13.)
    Decided May 7, 1910.
    Bill by Melvin A. Root against Jared M. Snyder and others to set aside certain deeds and for an accounting. Defendants filed an answer in the nature of a cross-bill praying affirmative relief. From the decree rendered, all parties appeal.
    Modified.

      Weadock & Duffy (De Vere Hall, of counsel), for complainant.

      Stoddard & McMillan, for defendants.
   Moore, J.

The bill of complaint was filed in July, 1907. The complainant was 69 years old the following September. His wife died in April, 1904. The complainant and his wife were the owners by the entireties of their home in Bay City, worth about $5,000, and a business block and dwelling house in that city worth about $80,000. Mrs. Root had been something of an invalid for many years, but was able to be about, and she and her husband were considerable travelers. They were spiritualists. Mrs. Root was one of the leading spiritualists of the State, and her services were in demand as a lecturer.

The defendant Jared Snyder was the brother of Mrs. Root; the other defendants are the wife and daughter of Jared Snyder. A considerable correspondence and a voluminous record of more than 1,100 printed pages show a very cordial and affectionate feeling between Mr. and Mrs. Root and these defendants, running through a series of years. They had made long visits to each other in each other’s homes. At the time of the last illness of Mrs. Root, and for more than 10 years prior thereto, the defendants had lived in the city of Washington, where Jared M. Snyder, then about 63 or 64 years old, was in the employ of the Federal government, at a salary of $70 a month, and the evidence is that he had recently passed a civil-service examination, and was in the line of preferment.

In the testimony of Mrs. Snyder the following occurs:

“ Q. In Washington what were your associations and society ?
“A. Well, I was connected with the Congregational Church choir. I was not a solo singer, but I had a very important position as chorus singer. I was assistant to the regular music committee. I was secretary of the choir; I also was a member of the inaugural chorus, I think, three times. My name was on the list, which would call me whenever there was any chorus work to be done. It brought me in connection and association with music lovers and musical people of Washington. Our choir gives concerts frequently during the winter, and our evenings with the choir were considered quite an interesting time. Dr. Bischoff was a splendid organist, and considered one of the very finest. I have heard Dr. Bischoff stop the singing of 60 or 75 and ask why Mrs. Snyder was not singing. I thought that was a great compliment. He was blind.
“Q. What was your daughter doing in Washington ?
“A. Flora was employed in several places. I believe she was in the Equitable. The last place I believe was in Woodworth & Lothrup’s, a large store.
“Q. What, if any part, did she take in entertainments?
“A. Flora did a great deal of reading. I think she, perhaps, had recited or read in most every church of note in Washington. She did a great deal of charity work in the churches.
Q. Tell us how you liked living in Washington ?
“A. It is one of the most charming cities in the United States to live in. I think most every one who has ever visited there would feel the same.
Q. Was there any particular reason why you thought Washington agreeable that you have not stated ?
“A. I have always felt attached to it because I was born there. I had quite a circle of friends there that knew me as a girl. I remembered some of the old official families, more old school friends, old-time friends, which brought me in touch with very many people that were interesting.”

Flora B. Snyder had qualified herself as a bookkeeper, and was an actress, and expected to enter upon a career as an actress. It is impossible to read this record without reaching the conclusion that Mr. and Mrs. Root and all the defendants were people of more than usual intelligence and refinement, and were very fond of each other.

On June 22, 1903, Mrs. Root wrote defendants a letter, in which she said:

“ I have wanted you to have this home if you survived us, as you are likely to — some one is to have it. * * * If you were here so we could work together for a time, Melvin says he thinks all might be adjusted, and you have an easy time and be comfortable.”

This letter, after discussing family matters, closes, “Your own sister and brother, Mattie and Melvin.” There is evidence in the record that indicates Mr. Root approved of the writing and sending of this letter. Mr. and Mrs. Snyder visited in Bay City during the last illness of Mrs. Root, when a conversation was had with Mrs. Root about her approaching death, and her desire that defendants should come on and take care of Mr. Root during the remainder of his life, and have the property. Later Mrs. Root died.

In April, 1905, the complainant entered into a correspondence with defendants, with a view of having them give up their home and come and live at Bay City. We quote from some of this correspondence:

“April 16, 1905.
“ Jeddie’s considerate letter of the 13th came yesterday. I am glad of the careful thought you are giving to the arrangement I proposed, for indeed it is ‘momentous.’ Libbie gave her best thought to it and so have I. * * * The time is now ripe. Hence I wish you could communicate with dear Mora submitting to her my last letter on the matter with what you choose to write her, so if it is thought best for me to journey to Washington, I may have notice of when Flora will be there, and a little time to arrange for my leaving here. * * * Keep me advised of the drift in the matter of your coming to live in Bay City. I want it to be of your own pleasure if you come, for I can arrange differently if desired, but my first thought is of you. I think if you come, of putting the property affairs all in such shape that if I join Mattie (while you are here) no matter where I may happen to be, you two, Susie and Jeddie will be put on record as survivors and owners of the property Mattie and I had so deeded. * * * So please promptly notify me, and I wish Susie’s expression as well as Jared’s, also Flora’s if convenient, just how this all shapes in your minds.”
“1209 Fifth Avenue,
“Bay City, Mich., April 8, 1905.
“ Dear Washington Ones : * * * Lately I have been wondering if your experiences have prepared your minds to consider favorably living in Bay City with assured living expenses and care only of looking after the two houses and the block. What X mean is I desire to travel even so far as the Hawaiian Islands and may be the Philippines. My absence, if all goes well, will be quite indefinite and may be X will be kept by vicissitudes of travel from returning. It was Libbie’s clear idea to be helpful to you in which X heartily joined. Together we hoped to travel and we thought of your living at 1209 Fifth avenue and the rentals of the block and house behind •would provide income for your support and afford us enough for expenses while journeying. This is an epitome of my thought. If you see the way clear to encourage this plan, will visit you after the renovating work is so I can leave it, and we will talk details in full. X want you both, and include Flora, if it is convenient, to consider this idea carefully and let me know what you think of it as early as you can. * * *
“ Now dear ones bear in mind I have your welfare profoundly in my purpose, and give this matter your best thought soon.
“ Love to Flora and yourselves,
“Melvin.”
“ 1209 Fifth Avenue,
“Bay City, Mich., April 24, 1905.
“Dear Washington Ones: — Yours.of the 22nd awaited my homecoming at noon. I am gratified that you had a calm consideration of the matter. As I understand Flora will be home to remain from about the first of May, I will endeavor to leave home soon after so as to reach you probably during the second week of May. Then if all is agreeable, and you can arrange to soon come to Bay City so I can show Jared how I take care of business, I will prepare to start West when you feel settled. If I should do anything more definite before I see you, to enable you to conclude your plans and at least Jared be with me in Bay City a while to practice details here, in case you take up a home permanently in Bay City, please promptly let me know.
“My work at the block is drawing to a finish, and I am thinking of leaving house finishing to your own care.
“This much hastily so you may know my program.
* ‘ Affectionately,
“Melvin.”

Mr. Root then went to Washington and made an arrangement with the defendants. The substance of the agreement concluded in Washington was that the defendants would break up their housekeeping in Washington as quickly as possible, and come to Bay City. The property should be conveyed so that it should be held in joint tenancy ; all of the parties were to have their living out of the property; the principal care and management of the property should be with the defendant Jared; the three defendants should maintain the home of the four of them; and matters should be so arranged that the complainant should have time and means to travel in accordance with his desires, which were known to all the parties. He wrote the following letter on his return home:

“Alleghany Hotel,
“Bay City, Mich., May 28, 1905.
“ Dear Brother George: — I reached home last Monday from a visit with Jared, Susie and Flora. The result is that they appoint tomorrow, Monday, to start with their things to Bay City, to make their home in our house, arriving about Wednesday. When they have become sufficiently familiar with matters here to take full care of them without my presence, I propose starting on my leisurely trip through Michigan, Illinois, Minnesota, Iowa and your State. How long it will take me to reach you, I have no definite idea, but I will keep you informed of my progress. * * * Women and men thoroughly cleaned inside of our house last week, and in a couple of days’ work the painters will be done outside. All is sweet now after Libbie’s plan, and the ' children ’ as she called them, will find a grateful home. I am quite well, and I am happy in the prospect.
“ Affectionately,
“ Melvin.”

And in paragraph 5 of the bill, in describing the estate which it was intended to convey, it is said:

“ He suggested to the said Jared M. Snyder that if he and his wife, Susan W. Snyder, and his daughter, Flora B. Snyder, would move to Bay City, Mich., and make their home with him, and make a home for him with them, * * * he would put the title of his property in such shape that whoever of the four should survive him they would own all of the property as joint tenants.”

The statements in the testimony and of the bill quoted are in harmony with all of the testimony of the complainant upon this subject. He never at any time, up to and including the filing of the bill in this case and the giving of the said testimony, had in mind that the deeds to be made, or that were made, were void, and that the estate created thereby was void, but he did distinctly and specifically have in mind and intend to cause to be conveyed, and supposed the property had been conveyed, to the four, to be held by them as joint tenants. Mr. Root had no children or descendants.

In the latter part of May, 1905, the defendants gave up their home in Washington in pursuance of the agreement, and entered upon their part of the undertaking. For the purpose of carrying out his part of the agreement Mr. Snyder was introduced by Mr. Root to the tenants occupying his various properties, who were authorized to pay rent to Mr. Snyder; a bank account was opened, against which all the parties to this litigation were authorized to check. Mrs. Snyder and her daughter took charge of the household, and administered the household affairs. Mr. Root prepared two deeds for the purpose of carrying out his agreement with defendants, as he states in his bill of complaint, supposing that said agreement, though oral, was binding and legal, and desiring to carry it into effect. The deeds are as follows:

“This indenture, made this twentieth day of June, in the year of our Lord one thousand nine hundred and five, between Melvin A. Root, of Bay City, Michigan, survivor of his wife, Martha E. Root, deceased (who were joint tenants), party of the first part, and Charles H. Frantz, of the same place, party of the second part.
“Witnesseth that the said party of the first part for and in consideration of the sum of one dollar to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents give, grant, alien and confirm unto the said party of the second part, all those certain pieces or parcels of land situate and being in the city of Bay City, county of Bay and State of Michigan and described as follows: * * * Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining: To have and to hold the said premises, as herein described, in trust only, to convey the same by a sufficient deed of conveyance to Melvin A. Root, Susan W. Snyder, Jared M. Snyder and Flora B. Snyder, as joint tenants and to their heirs and assigns, and to the survivors or survivor of them, and the heirs and assigns of the survivors or survivor of them, forever.
“In witness whereof, the said party of the first part has hereunto set his hand and seal the day and year first above written.
“Melvin A. Root. [L. S.],”etc.

This deed was properly witnessed and acknowledged.

‘ ‘ This indenture, made this twentieth day of June, in the year of our Lord one thousand nine hundred and five, between Charles H. Frantz and his wife, Edith F., of Bay City, Michigan, parties of the first part, and Melvin A. Root, Susan W. Snyder, Jared M. Snyder and Flora B. Snyder, parties of the second part.
“ Witnesseth that the said parties of the first part for and in consideration of the sum of one dollar to them in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, and in pursuance of the terms of a deed of conveyance this day executed by Melvin A. Root to Charles H. Frantz, do by these presents give, grant, alien and confirm unto the said parties of the second part, as joint tenants, and to their heirs and assigns, and to the survivors or survivor of them, and to the heirs and assigns of the survivors or survivor of them, forever, all those certain pieces or parcels of land situate and being in the city of Bay City, county of Bay, and State of Michigan, and described as follows, to wit: * * * Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining: To have and to hold the said premises, as herein described, with the appurtenances unto the said parties of the second part, and to them as joint tenants and not as tenants in common, and to their heirs and assigns forever.”

This deed was also properly witnessed and acknowledged.

After these deeds were delivered, they were placed on record by Mr. Root, and all parties seemed greatly pleased at the situation. The evidence is overwhelming, including statements in many letters written and sent by Mr. Root, that he was pleased with what followed. As late as March 9, 1907, in writing to a friend he said:

“ The prospects for building and improvements in the city never were greater than the present. Everybody feels hope and cheer. Our business is prosperous and Jeddie has it well in hand so I have little care. I am thinking of leaving home next month for a visit to my old home in Lockport, N. Y., and to friends in the vicinity. Then if all seems right to do so I think of going southeast in time to witness the naval opening of the Jamestown, Va., Exposition the 26th of April. For years I have wished to study the people of our southern States, and I think that will afford a fine opportunity. If the exposition proves as interesting as did the Chicago fair, I may spend much of the summer near Jamestown. Libbie and Í spent five months in the Chicago event and enjoyed every day. We made it a school of instructions and that’s what I wish to do next summer. * * *
“ In fact a lecture we attended last night given by J. Adam Bede, a congressman, declared the most happiness is to be gotten in the home where love is. So I nestle close in my loves and get the best.
“While we rejoice in all the good you have in your Happy Land we trust you will keep Flora and Susie and Jared and me among all those you share its goodies with. They are all well and busy — the girls with spring sewing, running two machines, and Jared busy with providing us the comforts of the season.”

The feeling of satisfaction continued until about the first or middle of April, 1907, when for reasons not satisfactorily explained by this record, Mr. Root demanded that the property be redeeded to him. Then trouble of a serious nature arose between the parties. The complainant made it very clear by his conduct, not only that he did not want defendants to continue to perform their agreement, but that he intended to make it impossible for them to do so, and, as before stated, a little later the filing of this bill of complaint followed.

In the bill of complaint the following appears:

Eighth. That there was no consideration whatever moving from the said Jared M. Snyder, Susan W. Snyder and Flora B. Snyder, or either of them, to your orator for the deeds so made, executed, and recorded as hereinbefore mentioned. * * *
Eleventh. Your orator further represents that he is advised and believes that the agreement made between him and the said defendants, by reason of its not being reduced to writing, is not enforceable, and that there was no legal or valid consideration for the making of said deed.”

There is an averment that defendants have not carried out their part of the agreement.

The prayer is as follows:

Fifteenth. Your orator further prays that a preliminary injunction be issued out of and under the seal of this court, restraining the defendants from conveying or incumbering the property herein described, or undertaking to convey or incumber the same by deed, mortgage, consent judgment, or otherwise, until the further order of this court, and your orator further prays for the decree of this honorable court, wholly setting aside the said deeds and conveyances herein set forth as having been made to Charles H. Frantz, and by the said Charles H. Frantz to your orator and the defendants herein named, as being wholly without consideration and void, and requiring the defendants herein named to reconvey such property to your orator, and surrender and deliver up possession of the premises described herein.
“ Sixteenth. Your orator further prays that an accounting may be had of the moneys received by the defendants from the rents and income of the property herein described, and that a fair and equitable allowance may be made to the defendants for any loss or expense to which they may have been put by reason of coming to Bay City, if they are entitled to any such allowance in the judgment and opinion of the court, and that a true balance between the parties be ascertained and determined, and this complainant again offers, in case the said balance is found against him, to pay the same forthwith.”

There is no general prayer for relief, and there is no suggestion in the bill of complaint that the deeds are void because of the perpetuities created therein.

Defendants put in an answer in the nature of a cross-bill, in which occurs the following:

Seventh. Defendants deny the matters alleged in the seventh paragraph of said bill of complaint, except that they admit that it was the understanding of all parties that the deeds in the sixth paragraph of said bill of complaint mentioned were intended to place the title to the property jointly in complainant and defendants as joint tenants, with the right of survivorship. They aver that it was understood and agreed that said property should be held, used, and enjoyed by all said parties as joint tenants, with the right of survivorship, and that the income therefrom should be used for the joint benefit of all, and the expense of maintaining the joint family would be paid therefrom.
Eighth. These defendants deny that there was no consideration for the making of said deeds, and aver that there was a good, sufficient, and valuable consideration for the making, executing, and delivery of said deeds.”

In this cross-bill they aver they have performed or are .ready to perform their part of the agreement, and pray for an injunction, and the appointment of a receiver, for an accounting, and ending with a prayer for general relief.

The case was heard in open court. The judge filed a long written opinion and made a decree from which all parties have appealed. In the written opinion occurs the following language:

“ The complainant himself prepared and executed the Frantz deed, from himself to Frantz and wife, and also prepared and caused to be executed and delivered to himself the deed from Frantz to the grantees. The entire preparation of the deeds and the form of the expression set forth in them were the acts of the complainant.
“Prior to the execution of the deeds all of the parties expected the deeds to be deeds creating a joint tenancy in the property to the grantees, and all of them took possession of the property, and have held the joint possession thereof under the belief that the deeds created a joint tenancy. This previous and subsequent understanding has been that held at all times by the defendants, and by the plaintiff up to and including the time of filing of the bill and the giving of his testimony, and no other theory has been announced until set forth in the arguments of the case. * * *
“Another specific consideration affects this claim of the complainant. In this case all of the parties are of legal age and before the court, and if the intention of the complainant is clear, and it was his intention to convey an estate of a different quality from that conveyed by the deeds, they may be reformed to carry out his clear intention. To state the claim made on behalf of the complainant in its fullness, if sustained, the complainant is put in the position of doing wrong in promising a good title and estate, giving void deeds and having them acted upon, and now asking to have his solemn deeds declared void. This position puts the complainant in the position of attempting to take advantage of his own wrong, and if he is successful, then such would be the result. * * *
“It is a contention of the complainant that the consideration for the deeds has failed, and that this failure arises from the fact that the agreement under which the deeds were made has not been carried out; that the property has not been properly attended to by Jared M. Snyder; that the tenants of the property have been dissatisfied with his management; and that the defendants have failed to make the kind of a home for him, and to furnish him the table comforts, and other home comforts, that they agreed to furnish, and that he had a right to have by virtue of the promises that were made before the conveyances were made. * * *
“The conclusion, however, which I have reached upon this point in substance is as follows: That the requirements of plaintiff, so far as making the home and furnishing the home with the home comforts, in the way of food and care of rooms, and everything of that kind, were concerned, were such as were easily capable of being performed by the defendants, and were in fact performed substantially as agreed and understood at the time of the commencement of the arrangement prior to the execution of the deeds and contemporaneously therewith. The preponderance of proof shows that the complainant’s charges upon this subject are not sustained. * * *
“ The logical result of the conclusions above indicated might be a dismissal of the bill of complaint, but a careful consideration of all of th’e circumstances impels me to a different action. Notwithstanding the conclusion reached that the complainant was in fault, this situation remains. A friendly relation between the parties for the future is impossible. The joint home in the homestead, to be maintained-as it was understood and agreed between the parties at the time, cannot be hoped for. A home for the complainant, which was a part of the consideration for the conveyance in the manner agreed upon, he will not have. It is not in the power of the complainant to restore the defendants to their positions and their home in Washington as it was when he entered it in May, 1905.
“I have come to the conclusion that the case should be disposed of by a decree which will in effect be a rescission of the original agreement between the parties, giving to them as nearly as may be what they should have as a result of the rescission and their changed conditions, having regard, as far as possible, to the rights and equities of, and attempting to be just and fair to, all the parties. And accordingly I direct that a decree be entered in this, case, providing substantially as follows:
“1. That the defendants release all claim of every name and nature to the complainant of the homestead, and the personal property therein, including the piano, and deliver possession thereof to the complainant within a reasonable time after the entry of this decree.
“2. That the block stand and be held by the complainant and the defendants as joint tenants.
“3. That on account of the defendants’ extra expense in breaking up their home in Washington and removing to Bay City, in addition to the amount paid on that aecount by the complainant, and on account of amounts earned by the defendant Flora, and the amounts paid in joint account as proceeds of life insurance of the defendant Jared, and other considerations, the complainant pay to the defendants out of the joint fund the sum of $600.”

A decree was entered embodying the above and many other details, from which decree, as before stated, both parties have appealed.

As to the claim of complainant that the deed was without consideration, we agree with the conclusion of the lower court that there is an abundance of testimony showing a consideration. The arrangement was brought about by complainant. The defendants changed their situation very much to their disadvantage; all in good faith entered upon the performance of their part of the agreement. They have substantially completed their agreement, and any failure to complete it on their part is due to the acts of complainant. See Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488), and the many cases cited in that opinion; Greenwood v. School District, 126 Mich. 81 (85 N. W. 241); Ruch v. Ruch, 159 Mich. 231 (124 N. W. 52); Goff v. Thompson, Har. Ch. (Mich.) 60; Leonardson v. Hulin, 64 Mich. 1 (31 N. W. 26); Bird v. Pope, 73 Mich. 483 (41 N. W. 514); Schuffert v. Grote, 88 Mich. 650 (50 N. W. 657, 26 Am. St. Rep. 316); Ayris v. Ayris, 116 Mich. 484 (74 N. W. 704); Cornell v. Whitney, 132 Mich. 300 (93 N. W. 614); Woolcott v. Woolcott, 133 Mich. 643 (95 N. W. 740), 138 Mich. 176 (101 N. W. 218).

Though that theory does not seem to have been in the mind of complainant or of counsel when the pleadings were drawn, it is now insisted that the estates created by the conveyances are void as an encroachment upon the statutory prohibition against perpetuities. The question is argued at great length in-the brief of counsel. There can be no reasonable doubt as to what the parties understood the agreement to be, and that they both acted upon it, and that the complainant himself undertook to make such conveyances as would make the agreement effective. It would be a strange use to make of a court of equity if an appeal to it could be successfully made which would accomplish what is sought to be accomplished here by the complainant. If the deeds prepared by the complainant are not effective to carry out the purpose the parties had in mind, and which they supposed they were making effective, they should be corrected, instead of being- declared void. See the cases already cited in this opinion, and also see Truesdail v. Ward, 34 Mich. 117; White v. Smith, 37 Mich. 291; Waldron v. Railway Co., 55 Mich. 420 (21 N. W. 870); Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (45 N. W. 994, 8 L. R. A. 851); Board of Sup’rs of Cheboygan County v. Township of Mentor, 94 Mich. 386 (54 N. W. 169); 16 Cyc. pp. 144, 686. We think, however, the deeds should not be construed as counsel contend. Section 8836, 3 Comp. Laws, reads:

All grants and devises of lands, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy.”

The words “ heirs ” in the deeds are not used as indicating purchasers, but for the purpose of showing the estate in the grantees to be one in fee, and that is the effect of the deeds.

The complainant has no occasion to complain of the decree. Have the defendants ? The court below recognized the difficulties of the situation when it stated in its opinion:

The logical result of the conclusions above indicated might be a dismissal of the bill of complaint, but a careful consideration of all of the circumstances impels me to a different action.”

The defendants also recognize the difficulty of working out a result that shall do exact justice and equity, in view of the impossibility of making for the parties such a home as was contemplated, even though that impossibility was brought about by the act of complainant. The defendants contend that, as a matter of law and equity, the bill of complaint should be dismissed, but, after quoting from the opinion of the circuit judge that he had concluded to enter a decree intended as an equitable division of the property, say they are not averse to a decree of this nature, but that they think the decree entered is not equitable. They object to complainant having one-half of the net rents and income and the full charge and control of the business block. They object to being required to relinquish their title to the homestead, though they do not object to its occupancy during his lifetime by the complainant, if he will in fact occupy it. They insist that too large a portion of the income already collected is given to complainant; that the lien provided them by the sixth paragraph does not provide them adequate security. They also make other minor claims, which need not be stated. It is difficult to work out what will be certainly equitable and just, but the trial judge seems to have made a careful effort to accomplish this result. The decree he has made practically makes a new contract for the parties, and this the court is not authorized to do. As before stated, we think the deeds that were made are good deeds, and convey the title which was intended to be conveyed. It is apparent, however, that conditions have so changed that the harmonious home which it was expected would result cannot be had. It is equally apparent that the needs of the complainant should be met, and that the litigation should be ended. The complainant should be allowed the use of the homestead if he will use it; if h8 will not do so, he should have its net rental value. The buildings should be insured.

We can see no good reason why Jared Snyder should not be put in charge of the real estate, as was contemplated by the parties, subject to an accounting to the court from time to time. We think also that the proportion of the net rents and income given to the complainant from the Root block as provided in paragraph 1 of the decree is too large, and that complainant should take but one-third thereof. We also think he should take but one-third of the net amount of moneys found by the fifth paragraph of the decree to be in Mr. Root’s hands.

The decree may be modified in these respects. The defendants will recover costs of this court.

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


source: Caselaw Access Project

author: Ostrander, J. McAlvay, J. Moore, J.

license: Public Domain

text:
    WIGHT v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Equipment—Negligence—Statutes.
    Freight cars equipped with coupling devices upon each end, with levers at two diagonal corners, to permit coupling without entering between cars, conform with the requirements of 2 Comp. Laws, § 5511, although each of the levers extends to only one side.

      2. Evidence — Judicial Notice — Action by State Officials .
    The court may take judicial notice that no actions have been begun by the commissioner of railroads to recover penalties because cars so made are not lawfully equipped.
    3. Railroads — Negligence—Defective Appliances.
    Testimony that a coupling device failed to work when plaintiff tried to work it, and immediately thereafter when the conductor attempted to operate it, tends to show that the device was defective at the time of plaintiff’s injury.
    4. Same — Statutes.
    The test of conformity to the statutory requirements is not. whether the device is provided, but whether the cars can be coupled and uncoupled by it: the duty to equip being absolute, as well as the duty to start no car without an operative equipment.
    5. Master and Servant — Contributory Negligence — Railroads.
    Negligence contributing to his injury is chargeable to a brakeman who attempts to uncouple cars by using his hand to reach the coupling pin, knowing the liability to have it crushed, where a coupling device on one car failed to operate, and he could have safely and effectively used the device on the other car.
    6. Same — Exposure to Danger — Choice of Means.
    One who voluntarily and unnecessarily exposes himself to an imminent known danger, and so contributes to his injury, cannot escape the consequences because the negligence of another concurred in producing the injury.
    7. Same.
    "Where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligence to select the more dangerous.
    Error to Cass; Des Voignes, J.
    Submitted June 18, 1909.
    (Docket No. 34.)
    Reargued January 4, 1910.
    Decided May 7, 1910.
    Case by George E. Wight against the Michigan Central Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Victor M. Gore (Henry Russell, O. H. Butterñeld, and Frank F. Robson, of counsel), for appellant.

      M. L. Howell and D. D. Bates, for appellee.

       As to duty and liability under Federal and State railway safety appliance acts, see note to Chicago, etc., R. Co. v. United States (Fed.), 20 L. R. A. (N. S.) 473.

   Ostrander, J.

The declaration of the plaintiff alleges the duty of the defendant and the breach thereof, in the following language:

“And it was then and there the duty of the defendant to have the cars in said train so equipped with some form of coupling device that said cars could be uncoupled from either side of said train without the necessity of going^ between the cars, and to have upon such cars such sufficient coupling device as to have enabled the plaintiff to uncouple any two of said cars from either side of the train without going between them. Yet the defendant wholly disregarded its said duty, had in said train two certain cars * * * which could not be uncoupled except by going between said cars, of which the defendant had notice, but of which the plaintiff was wholly ignorant. And the plaintiff avers that on said day * * * it became the duty of the plaintiff to uncouple said two cars, and to do so, because of said neglect of duty by defendant, he was wrongfully and illegally compelled to go between them to pull the coupling pin by hand and so uncouple said cars, * * * ” in doing which and without negligence on his part he was injured.

No reference is made to any statute. Assuming the declaration to be sufficient to sustain a judgment based upon testimony of an initial equipment of the cars with a coupling device designed to meet the duty imposed by 2 Comp. Laws, § 5511, and of a failure of the device, upon the particular occasion, to operate as it was designed to operate, the important questions presented are whether it can be said as matter of law (1) that defendant was not negligent; (2) whether plaintiff was guilty of negligence contributing to his injury.

The cars in question were foreign freight cars, received and inspected by defendant on the day plaintiff was injured, and placed in and made part of a regular freight train of some 20 cars which left Jackson, Mich., at about 2 o’clock in the morning. The undisputed testimony is that both cars were equipped with coupling devices designed to permit them to be coupled and uncoupled without the necessity of going between the cars. These devices were upon each end of each car; the extended levers by which they were designed to be operated being at corners of the car diagonal to each other. When two cars were coupled together, they could be uncoupled from either side, but not by the use of the same lever. Unless we are to hold, as it is intimated in the opinion of Mr. Justice Moore we should do, that the device for uncoupling upon each end of each freight car must, in order to conform to the statute, be capable of operation from each side of the car, then it is conclusively established by the testimony that these cars were equipped as the statute requires, that from either side by use of an apparatus upon one car or the other the cars could be uncoupled provided the device was in working order, and, if one was defective, or for any reason did not perform as designed to perform, the release of the same cars could be effected by the use of the lever upon the other car from a position upon the other side of the train. I find nothing in the record justifying the conclusion that the device itself did not conform with the statute requirement. That it is in common use on cars within and without this State is undoubted. We may take notice that no actions have been begun by the commissioner of railroads to recover penalties because cars equipped with such a device are not lawfully equipped.

Considering the testimony most favorable to the plaintiff, it appears that he tried to pull the coupling pin on one of the cars by the use of the device attached to the end of that car, and was unable to do so. The plaintiff signaled to the engine for “slack,” and, when the engine and the cars came back, he used the lever, and was unable to pull the pin. The conductor of the train testified also, that after plaintiff was injured he tried, without success, to operate the lever. Why it would not operate is wholly unexplained. How long it had been in the condition in which plaintiff found it is not shown. When it had last been used with success, or whether it had ever been operated, is not shown. It cannot be said, as matter of law, there was no testimony tending to prove that the device was defective at the time plaintiff attempted to use it. In view of the character of the inspection which was made of this car at Jackson, it cannot be said, either, that the defendant was not guilty of a violation of the statute in running this car. The inspection proven was one which did not extend to actual operation of the device. The statute says that no freight car shall be run unless furnished with safety couplers as provided in the act. The test is not whether a device is provided, but it is whether the cars can be coupled and uncoupled by its use. The duty to equip is an absolute one, and so, I think, is the duty to start no car upon a journey without an operative equipment. We are not, however, called upon to decide, and therefore should not decide, whether the fact that such a device does not upon a particular occasion perform is of itself under all circumstances conclusive proof of a violation of the statute.

Assuming that a breach of defendant’s duty is made out, there is an insuperable difficulty to sustaining the judgment for the plaintiff, arising from the undisputed evidence of his own want of ordinary care. It is the undisputed testimony that, after plaintiff had been injured, the conductor of the train, without going to the other side of the train, but by mounting and standing upon the dead ends or dead woods of the car, and, without signaling for “slack,” pulled the pin plaintiff tried to reach with his hand by using the device, or a portion of it, upon that car. He then signaled that the cars were uncoupled, and the engine, with the cars attached to it, went up the hill. When it returned for the other cars, it was coupled to the ear where the uncoupling had been accomplished. The train of cars in question was stalled. The testimony, undisputed, is that the rear of the train was held by brakes and a man sent to the rear to protect the train. It was stationary, except as the slack permitted movement, until a portion of it could be cut off, when the forward cars would be taken over the hill. Plaintiff knew that the car next the one having the defective or nonworkable device was also equipped with a similar device. He knew the purpose of such devices. He testified:

“Q. And you knew if you stuck your hand in between those deadwoods you were liable to have it mashed, didn’t you ?
“A. Why, certainly.”

He made no effort to use the device upon the other car. Clearly there was a comparatively safe way and a very dangerous way known to him, and he selected the more, and the most, dangerous method. It was a way so dangerous that the legislature of the State and the congress of the United States have made it the duty of railroads to provide an equipment by which cars can be uncoupled * without the necessity ” of going between the cars. He is relying, in this action, upon the duty imposed upon the master without regarding the correlative duty resting on himself to use the equipment provided for his safety. More than this, he was experimenting. His testimony clearly shows that he did not know that with his hand upon the pin he could give a signal which could be seen by the engineer. He bases his claim of necessity for his action upon the fact that, as the train was on a curve, he could not have made signals if using the lever on the opposite side of the train. But he did not try to do what the conductor later did, uncouple and then signal. He did not call the conductor to signal for him, if it was found to be necessary to signal.

In the opinion of Mr. Justice Moore, it is said that from the testimony of the plaintiff it is clear—

“That the only way the car could be uncoupled from the side of the train upon which he stood was to do just what he attempted to do. It should not be forgotten that this train was not stalled in a yard, but it was stalled between stations and blocked the only track between stations, and no train could pass until this train continued its journey, and its continuing on was important. The whole situation was before the plaintiff. He was in a difficult situation.”

In my opinion these considerations are wholly insufficient to justify or excuse the conduct of the plaintiff. On the contrary, if they are permitted to excuse him and others like him who follow convenience into places of greatest danger, who with almost incredible temerity choose to risk limb and life without necessity, courts will have done little to effect what the legislatures have made possible, will have done little to make simple such situations as the one in which plaintiff was placed. In view of the argument referred to, I call attention to what, in fact, happened. The locomotive was used to convey plaintiff to a place where he could be cared for, the train meantime occupying the track. These were inevitable consequences if he was injured. The rule that one who voluntarily and unnecessarily exposes himself to an imminent, known danger, and so contributes to his injury, cannot escape the consequences because the negligence of another concurred in producing the injury, and the rule that, where there is a comparatively safe and a more dangerous way of discharging a duty, it is negligence to select the more dangerous, are salutary, and have long been applied by the courts. They have been applied in cases almost precisely like this one. Morris v. Railway Co., 108 Fed. 747, 47 C. C. A. 661; Gilbert v. Railway Co., 63 C. C. A. 27, 128 Fed. 529. They should be applied here. Applying them, we are required to say as matter of law that plaintiff has not shown himself free from negligence which contributed to his injury. If by any possibility it can be said that the question of his negligence was for the jury, it was error to instruct the jury that—

“ The plaintiff was not required to go on the other side of the train to avoid going between the cars, if he could not from such other side signal the person on the engine.”

The judgment is reversed, and a new trial is granted.

Hooker, Brooke, and Stone, JJ., concurred with Ostrander, J.

McAlvay, J.

I concur on the ground of contributory negligence of plaintiff.

Blair, J., concurred with McAlvay, J.

Moore, J.

(dissenting). The plaintiff was injured in an attempt to uncouple cars having double deadwoods. Upon a trial before a jury he recovered a substantial verdict. The case is brought here by writ of error. The declaration charges that the defendant failed in its duty to provide an uncoupling device as required by the statute, and that because of such omission the plaintiff, while in the exercise of due care, was injured. The plaintiff had served as brakeman four years. The train was made up of about 20 cars. The train stalled on a heavy grade. The plaintiff, as head brakeman, went back to cut the train so the engine could move it in sections up the grade.

The plaintiff testified that he tried to uncouple the cars by the use of the uncoupling device; that he tried the lever two or three times, and could not lift the pin. His version of the transaction is as follows:

“ Did you try, then, after cutting the train in two, did you undertake to cut off another car ?
“A. Yes; I was going to cut off another car, and the engineer didn’t think he could make it with that one off, so he motioned me to cut two off, and I cut the other two off and couldn’t do it.
Q. You say you couldn’t do it. Why couldn’t you do it ?
“A. The lever that should work wouldn’t work, and, while reaching over to get hold of the pin on the other one, the slack run back on me and caught my arm between the dead irons.
“Q. What kind of dead irons were on these cars ?
“A. Square dead irons.
“Q. Describe to the jury about those dead irons, what they are, and how they are, and why you had to reach with reference to them to get your car uncoupled.
‘A. They are irons about, I should judge, a foot square, ten inches, anyway, between ten inches and a foot square, and they come up close together on each side. There is one on each side of the coupler. And, when they come together, they come together tight enough to pretty near cut a newspaper in two. And, when I couldn’t work this pin, I was forced to reach over to get hold of the other pin in order to cut them cars where I did cut them.
“Q. Was there any way to lift the pin except by your hand ?
“A. That is the only way I could raise it, by reaching over there with my hand.
Q. Could you get your hands to the pin without getting between the cars ?
“M. Oh, no, no.
‘‘ Q. Could you get your hand to the pin without getting your arm between the double deadwoods ?
“A. No.
“Q. When you had your arm in there to get off one of those pins, which pin were you trying to get ? The one that should have had the lever on, or the one on which the lever was and would not work ?
“A. I was trying to get the one that the lever didn’t come across to me.
“Q. The one that had the lever on would not pull with the lever ?
“A. Wouldn’t pull.
“Q. You may state whether or not they sometimes get in that fix so they won’t pull.
“A. Several times.
”Q. Now, these cars slacked back on you and smashed your arm. * * * In what condition was your arm in then?
“A. It was all crushed at the elbow. * * * It was not an extraordinary thing for me to couple cars that had deadwoods. I understand how to couple them and uncouple them, and did while I was working on the line between Battle Creek and Goshen. I had uncoupled a great number of them I presume that year. * * *
“Q. But your business called on you to couple cars and uncouple cars ?
“A. Yes, sir; I had been doing that service during these years, and I had continued to couple and uncouple cars having deadwoods.
“Q. So, you were familiar with the deadwood coupling?
“A. Well, they aint so plenty. You don’t see them every day.
“Q. I know, but you were familiar with them ?
“A. Oh, yes; I have had them on the trains I have been on. I have coupled them and uncoupled them, so that it was not an unusual proposition to me to uncouple them or couple them. * * *
Q. What did you do when you got there ?
“A. Well, the first thing I done I cut the air, and then I took hold of this—
“Q. (interrupting). You cut the air ?
“A. I cut the air.
“Q. Then what did you do ?
“A. Took hold of the lever, and got the slack, and I couldn’t pull the pin.
“Q. How did you get the slack ?
“A. I motioned for him to give me the slack.
“Q. Motioned the engineer to give you the slack ?
“A. Yes, sir.
“Q. And then you tried this lever?
“A. Tried this lever, and couldn’t make it.
“Q. You tried them with both hands ?
“A. Yes, sir.
“Q. Did you try them thoroughly ?
“A. Yes, sir.
“Q. How many times would you say you tried to lift it?
“A. Oh, I should judge three times.
“Q. You were satisfied that you could not lift that pin with that lever ?
“A. Yes, sir.
“Q. And you had the slack as you wanted it ?
“A. Yes, sir.
“Q. You fully understood at that time that you were unable by the use of the lever to lift that pin ?
“A. Yes, sir. * * *
Q. You knew you could step to the side of the car as easily there as from any point ?
“A. I couldn’t step to the car and give him a signal, and hang on to the pin at the same time.
“Q. How did you expect to do that by reaching your arm in between the deadwoods and getting hold of the pin ? Answer fully.
“A. I expected to reach over the deadwoods. I hadn’t got hold of the pin when the slack came back and caught me. The slack came back, and caught me without any signal at all.
“Q. You know slack is likely to come back on a freight train ?
“A. No; I don’t, when the engine is pulling on it.
"Q. You have frequently known slack to comeback?
“A. Yes, sir.
“Q. You know it is liable to do that on a grade ?
“A. It is liable to, but the engine was holding it.
“Q. Even though the engine is holding it the slack is liable to come back, and you know that ?
“A. No; not when the engine is pulling.
"Q. But, if there was slack between your position and the engine, you knew it was liable to come back ?
“A. Why, it is liable; yes.
“Q. And you knew, if you stuck your hand in between those deadwoods, you were liable to have it mashed, didn’t you?
“A. Why, certainly. * * * The train was on the curve at the time this occurred. I was on the inside, so that both ends of the train could be seen by looking out, and both ends could see me. That is why I went to the inside of the curve, so I would be in sight and give the signal from there.
“Q. I will ask you the further question: Can the engineer or had the engineer any authority or right to slack back until you told him to by your signal ?
“A. No. The engineer and the uncoupling were under my orders.
“Q. And, when you went in to uncouple, you had a right to believe that he would not slack back except on your signal ?
“A. On my signal. * * *
“Q. So you say the engineer caused the cars to come back and crush your arm ?
“A. I say he must have caused it because they came back with such main force.
“Q. Well, that is your claim?
"A. Yes, sir.
"Q. You want this record to show that to be your claim ?
“A. That he must have let the slack back on me. He let it come back with such force.
“Q. That is right is it ?
“A. Yes, sir. * * *
“Q, So that under your rules and regulations the engineer would not move until you signaled him to move ?
“A. No.
“Q. That is right, is it ?
“A. Yes, sir. * * * I was on the fireman’s side of the train and the curve was on that side. I could see the way car and the engine. It was our purpose to get that train up the grade. The engine was headed up the grade. I had tried to raise the lever. That I couldn’t, do.
“Q. Now, in order to pull that pin with your hand, you had to have slack, didn’t you ?
“A. Yes, sir.
“Q. And, before you went in to pull that pin, you signaled for slack to the fireman ?
‘A. What, the first time ?
“ Q. No, the last time.
“A. No, sir.
“Q. When you went in to pull the pin ?
“A. No, sir.
“Q. How did you expect to pull that pin without slack ?
‘A. I was going to wait until I got hold of the pin and got squared away before I give the signal for the slack.
“Q. You knew the engine was holding that train on the grade ?
“A. Yes, sir.
“Q. How did you expect to pull that pin with your hand without slack ?
“A. I didn’t expect to pull it without slack.
“Q. Then you signaled for slack before you went in, didn’t you ?
“A. No, sir.
“Q. But if you did not expect to pull that pin without slacking, as you say, what did you go in there for F
“A. I went in to see if I could get hold of that pin, and, if so, I could raise it up, and then give the slack.
“Q. I thought you said you could not raise it without getting the slack ?
“A. I could get hold of it, then reach out, and give a signal for slack.
"Q. What do you mean ?
“A. I mean, to get in there and get hold of that pin and get all ready for the slack before I give the signal for it.
“Q. Do you mean to say you could reach down over those deadwoods and get hold of that pin, and from that position signal the engineer ?
“A. That was what I was going to try to do.
"Q. You say you were going to try to do that ?
“A. Yes, sir.
“Q. And you were going to hold on to that pin and hold it up with one hand while you signaled the fireman with the other ?
“A. I was going to hold it up with one hand and signal back with the other.
“Q. And that was what you were trying to do F
“A. Yes. sir.
“ Q. There is no mistake about that ? (
“A. No, sir.
“Q. Well, that would — it would be about as far as you could reach possibly, wouldn’t it ? From your hand on that pin to the outside of the car ?
“A. Yes, sir.
“Q. But you were going to try it ?
“A. I was going to see if I could make it.
“Q. You did not know certain whether you could make it or not, but you were going to try it ?
“A. I was going to see if I could get there and get hold of that pin and give the fireman a signal to come back and give me the slack.
“Q. And, as you say, before you got your hand to the pin, the slack same back ?
“A. Slack came back.
“Q. You were then reaching for the pin ?
“A. I was just reaching over to get the pin.
“Q. And the slack came back?
“A. Yes, sir.
“Q. And you say you were trying to keep your arm above the deadwoods ?
“A. Why, yes; reaching and just made an effort to get hold of the pin when the slack come back and caught my arm.
“Q. Your arm, of course, was not higher up than the deadwoods ?
“A. It couldn’t have been.
“Q. So you did not keep your arm above the dead-woods, but you reached in through the deadwoods ?
“A. Why, that is the way it must have been. * * * The only danger it would be was for me reaching over there was for the engineer to let the slack back on me. Otherwise, it was perfectly safe. From the other side of the train as it stood on the curve I couldn’t see the engine from the car. The curve there is quite a sharp curve there; extraordinary sharp curve. * * * Where I first tried to raise the lever, there was another lever on the opposite side of the car. The levers of the same car are not on the same side of the car. For example, if a car was headed north and on the north end there was a lever on the left side of that car, on the rear of that car there would be a lever at the right hand. That is the way they are made, and that is the way these cars are equipped. The train was headed north. I was on the left-hand side of the train.
“Q. So you were unable to advise the court as to whether or not there was anything defective with this lever, or either of those levers ?
“A. Well, I can advise them that one lever that I tried to work wouldn’t work, but I couldn’t say what was the matter with it that it didn’t work, and the other lever on the other side I didn’t get across there because there was no chance to give a signal neither to the way car or the engine, so I would be practically no good at all there.
“Q. You saw nothing defective about it ?
“A. No more than the lever didn’t come way across on the side I was on.”

Counsel for the defendant argue nine groups of errors. They have all been examined, but we think the following the important ones calling for discussion:

(1) Did the testimony for plaintiff so clearly establish negligence upon his part as to preclude a recovery ?

(2) Should the court have directed a verdict because the cars which were foreign cars were inspected by an inspector who was a fellow-servant of plaintiff ?

(3) It is claimed no negligence was shown on the part of defendant, and for that reason a verdict should have been directed.

(4) Should the case be reversed because of the improper argument made to the jury by counsel for plaintiff ?

We will take up these questions in the order mentioned:

Was plaintiff guilty of contributory negligence as a matter of law ? The statute, so far as relates to the couplings in use upon this occasion, required—

“ Some form of safety coupler or safety coupling device by which the cars can be coupled and uncoupled from either side of the train without the necessity of going between the cars: * * * Provided, further, That no freight car shall be run upon any of the railroads within this State after the first of January, eighteen hundred and ninety-one, unless furnished with safety couplers as provided by this act.” 2 Comp. Laws, § 5511.

In Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110), it was held that, as the doctrine of the assumption of risk by the employé rests upon the contract of employment, as the master cannot legally contract to violate a statute, the servant does not assume a risk growing out of an omission to perform a statutory duty. In the same case there is an elaborate discussion of the difference between the doctrines of assumed risk and contributory negligence, and in the opinion it is said that the latter defense may be open when the former may not be made. We have quoted very fully from the testimony of plaintiff to show how the accident occurred, and what knowledge he had of the situation.

There is testimony in the case that many automatic couplers have a bar, to which the chain is attached that lifts the pin, which extends clear across the end of the car with a lever at each end. The cars upon this train were so equipped that, when plaintiff failed to lift the pin with the lever, which he says he repeatedly tried to do, he was compelled either to try to lift the pin the way he did try or else to go around the car and lift the lever. If he did this, he could not be seen by the engineer, and he would be in a position where he could not control the movements of the train. The statute does not contemplate that the equipment may be such that the brakemen can uncouple the car from one side or the other of the train without the need of going between the cars, but the provision is that the equipment shall be such that the car can be coupled or uncoupled from either side of the train without the necessity of going between the cars. The brakeman has the right to expect a device which will allow him to uncouple the car from either side of the train. It is clear from the testimony of the plaintiff that he tried and failed to separate the train without the necessity of going between the cars, and that the only way the car could be uncoupled from the side of the train upon which he stood was to do just what he attempted to do. It should not be forgotten that this train was not stalled in a yard, but it was stalled between stations and blocked the only track between stations, and no train could pass until the train continued its journey, and its continuing on was important. The whole situation was before the plaintiff. He was in a difficult situation. We think it cannot be said, in the light of the testimony and the situation, as a matter of law, that plaintiff was guilty of contributory negligence, but the testimony presents a question for the jury. See DeCair v. Railroad Co., 133 Mich. 578 (95 N. W. 726); Gillespie v. Railway Co., 150 Mich. 304 (113 N. W. 1116); Smith v. Railway, 155 Mich. 466 (119 N. W. 640).

The record discloses that the foreign cars were inspected the morning of the day when the accident happened, and it is insisted the inspector is a fellow-servant of the plaintiff, and because of this inspection defendant is relieved of liability; counsel citing Lellis v. Railroad Co., 124 Mich. 37 (82 N. W. 828, 70 L. R. A. 598), and some of the cases cited therein. An examination of these cases will show that in none of them was the question of neglect of a statutory duty involved.

Was no negligence shown on the part of defendant? The statute requires the use of a coupling device “by which the cars can be coupled and uncoupled from either side of the train without the necessity of going between the cars; ” and forbids the use of cars without such a device. In Toledo, etc., R. Co. v. Kountz, 168 Fed. 832, 94 C. C. A. 344, Judge Knappen, speaking for the court, said:

“Request No. 16 asked an instruction that if the jury—
“‘Should find that Miller, before he attempted to cross the tracks, knew that defendant’s train was approaching at a rapid rate of speed, and with such knowledge attempted to cross the track ahead of said train, and that this was the proximate cause of his death, as said term has been defined to you above, then you are instructed that the plaintiff is not entitled to recover.’
“This requested instruction, it will be seen, proceeded upon the theory that, if Miller’s act in crossing the tracks ahead of the train was the proximate cause of his death, there could be no recovery, even though such crossing was in the regular discharge of his duty, and although he had no other way to go to his station except by crossing the tracks, and notwithstanding his conduct was entirely free from negligence. The jury was permitted under the charge of the court to find for the plaintiff only upon the theory that Miller’s death was caused by the catching of his foot in the unblocked frog. The failure of defendant to comply with the statutory requirement of blocking the frog was negligence as matter of law. Cincinnati, etc., R. Co. v. Van Horne, 69 Fed. 139, 140, 16 C. C. A. 182; Lake Erie, etc., R. Co. v. Craig, 73 Fed. 642, 19 C. C. A. 631; Narramore v. Railway Co., 96 Fed. 298, 300, 37 C. C. A. 499 (48 L. R. A. 68). The statute is designed for the protection, not only of employés who may step into them, but of those dragged or pushed into them by an engine. Cooper v. Railroad Co., 159 Fed. 82, 86 C. C. A. 272 (16 L. R. A. [N. S.] 715).’’

In the case of St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281 (28 Sup. Ct. 616), involving the construction of a statute which provided (27 U. S. Stat. p. 531 [U. S. Comp. Stat. p. 3175]): “And after July first, eighteen hundred and ninety-five, no cars either loaded or unloaded shall be used in interstate traffic which do not comply with the standard above provided for,” Justice Moody, speaking for the court, said:

“The evidence showed that drawbars, which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called shims, which are metallic wedges of different thickness, are employed to raise the lowered drawbar to the legal standard; and that in the caboose of this train the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that if the defendant furnished cars which were constructed with drawbars of a standard height, and furnished shims to competent inspectors and trainmen and used reasonable care to keep the drawbars at a reasonable height, it had complied with its statutory duty, and, if the lowering of the drawbar resulted from the failure to use the shims, that was the negligence of a fellow-servant, for which the defendant was not responsible. In deciding the questions thus raised upon which the courts have differed (St. Louis, etc., R. Co. v. Delk, 158 Fed. 931, 86 C. C. A. 95), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employé reasonably safe tools, machinery, and 'appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us, the liability of the defendant does not grow out of the common-law duty of master to servant. The congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that:
‘“No cars, either loaded or -unloaded, shall be used in interstate traffic which do not comply with the standard.’
“There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does in point of fact use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the law making body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation leading to hardship and injustice, if any other interpretation is reasonably possible. But this argument Í3 a dangerous one, and never should be heeded where the hardship would be occassional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law. But, when applied to the case at bar, the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employé and of the public. Where an injury happens through the absence of a safe drawbar, there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting' from them, should deem it wise to impose their burdens upon those who could measurably control their causes, intsead of upon those who are in the main helpless in that regard.”

The business of brakeman at the best is an exceedingly hazardous one. The legislature has attempted to diminish its hazards by the enactment of this statute. The language used is plain and unequivocal, and should be given its ordinary meaning.

In Layzell v. Coal Co., 156 Mich. 268 (117 N. W. 179, 120 N. W. 996), the opinion quotes at length, and with approval, from the opinion in St. Louis, etc., R. Co. v. Taylor, supra. See, also, Philadelphia, etc., R. Co. v. Winkler, 4 Pen. (Del.) 387 (56 Atl. 112). In the case at bar the testimony of the plaintiff is that he attempted to uncouple the cars without going between them and was unable to do so. We think the jury was authorized to draw the inference from his testimony that defendant had neglected to use a coupling device upon the cars that were required to be uncoupled by which they could be uncoupled from either side of the train without the necessity of going between the cars.

Should the case be reversed because of the argument of counsel for plaintiff ? Some of the argument was improper, and ought not to have been made. As to some of it, the trial judge in the presence of the jury chided the counsel. Some of the argument was a reply to the improper argument of counsel for the defendant. While some portions of the arguments made should be censured, we do not think the case should be reversed because of them. See Beauerle v. Railroad Co., 152 Mich. 345 (116 N. W. 424).

Judgment should be affirmed.


author: McAlvay, J.

text:
    WELLING v. STRICKLAND.
    1. Vendor and Purchaser — Contracts.
    In an exchange of complainants’ house and lot for defendants’ farm, the complainants executed a contract to pay $4,700 for the farm, part in cash and part in an installment of $1,500 at a specified date, with interest on $1,300 thereof, payable at the Mutual Home & Savings Association, with whom the parties were dealing, at $6.70 per month, together with interest on the remainder of the whole sum that should be from time to time unpaid, at the rate of six per cent, per annum. Complainants executed a deed of the house and lot to defendants, subject to certain incumbrances. Complainants defaulted in paying the interest. Held, that the amount of $6.70 was payable monthly as interest on the thirteen hundred dollar item, at the place named.
    2. Same — Forfeiture—Subletting.
    Under a clause in such contract against subletting the farm, the complainants were not entitled to put a third person in possession of a portion of the land, giving him entire control of the crops and the division of them, and receiving pay for the house: the relation being that of landlord and tenant.
    3. Same — Insurance and Taxes — Default.
    Failure to pay taxes and keep the buildings insured in defendants’ name, as provided by further clauses in the contract, operated as a default.

      4. Same-Waste.
    Permitting waste, contrary to a prohibition in the contract against committing or permitting waste, was a default, where complainants’ tenant allowed his stock to wander at will and the sheep girdled young fruit trees.
    5. Same — Forfeiture—Effect of Notice — Waiver.
    The provisions of the land contract waiving notice to quit and of forfeiture warranted the defendants in forfeiting the contract and taking possession of the farm without any written notice, and although an insufficient written notice was served, it did not operate as a waiver, nor were the defendants restricted to the grounds of forfeiture set up in such notice.
    6. Same — Evidence.
    The fact that a prior contract containing different provisions existed between the parties at the time of the execution of that in controversy is competent evidence to explain the situation and intent of the complainants and defendants in executing a new agreement.
    Appeal from Shiawassee; Miner, J.
    Submitted January 13, 1910.
    (Docket No. 41.)
    Decided May 7, 1910.
    Bill by Leonard A. Welling and Nellie M. Welling against Sarah A. Strickland and Washburn B. Strickland for the specific performance of a land contract. From a decree for complainants, defendants appeal.
    Reversed, and decree entered for defendants.

      O’Dell Chapman, for complainants.

      A. A. & H. A. Ellis, for defendants.
   McAlvay, J.

Complainants, who were husband and wife, owned certain real estate in the city of Grand Rapids, upon which was being erected a double house. It was incumbered by a mortgage of $3,600 to the Mutual Home & Savings Association, which had been put upon the property to obtain money to pay for building the house. There was also considerable indebtedness owing for material and labor which went into the erection of the house. Defendants, who were also husband and wife, owned a farm in Shiawassee county, the title to which was in the name of the wife, upon which there was a mortgage of $1,400. Negotiations were opened in February, 1907, by a real estate agent of Grand Rapids with Mrs. Strickland for the exchange of this farm for complainants’ property in Grand Rapids. Her son acted as agent for defendants in these negotiations. The result of these negotiations was an agreement in writing, made March 9, 1907, whereby Mrs. Strickland agreed to purchase complainants’ Grand Rapids property at a price of $5,300, subject to the mortgage for $3,600, the house to be completed according to plans and specifications, and fully paid for by Welling within 30 days; she to give in exchange therefor her farm at a price of $4,700, subject to a mortgage of $1,400. Of the money realized from this $3,600 mortgage to the Home & Savings Association, there remained $148 not disbursed, and claims against complainants for material, etc., used in constructing the double house, unpaid to the amount of about $1,000. After entering into the foregoing agreement of March 9th, and before it had been fully carried out, these parties met at the office of Mr. Shepard, secretary of the Home & Savings Association, on March 33,1907, in connection with the exchange of these properties, and a contract was drawn by him for them, and duly executed between Mrs. Strickland and complainants, in substance, as follows: She agreed to sell her farm of 136 acres to complainants for a consideration of $4,700, which complainants agreed to purchase and pay for, as follows:

Seventeen hundred and fifty dollars down, the receipt whereof is acknowledged; $1,550 on November 1, 1907, with interest on thirteen hundred dollars thereof, payable at Mutual Home & Savings Association, at $6.70 per month, together with interest on the remainder of the whole sum that shall be from time to time unpaid, at the rate of six per cent, per annum, to be computed from April 1, 1907, and to be paid November 1, 1907. Principal or interest not paid when due shall bear interest until paid at six per cent, per annum.”

The contract contained agreements on the part of complainants to keep the buildings insured for the benefit of defendant Mrs. Strickland; to pay all taxes and assessments; to commit or permit no waste or damage to the premises. Upon the full performance of all of the covenants and agreements and the full payment of the purchase price in the time and manner specified, said defendant agreed to convey the premises to them by warranty deed, except as to taxes, claims, and liens due to their acts or neglect. In case of any default or forfeiture all payments should be forfeited as stipulated damages. Complainants agreed not to assign the contract or sublet the farm or any part thereof without the written consent of said defendant. It was further agreed that complainants were to take possession April 1, 1907, and remain in possession as long as they performed the covenants and agreements of the contract, and no longer, and if at any time they violated or neglected to fulfill any of said covenants and agreements, they would forfeit all rights or claims under the contract and be liable to be removed from the premises, and notice to quit and of forfeiture were duly waived, and that at any time after such default it would be lawful for the first party to sell and convey the premises, or any part thereof, to any other person without becoming liable to complainants to refund the moneys received on the contract, or for damage on account of such sale; that time was expressly agreed as of the essence of the contract, and unless complied with in all its terms complainants should lose and be debarred of all rights, remedies, and actions both at law and in equity under said contract. It was further agreed by complainants as follows:

“Second parties assume a mortgage of $1,400, and consent that one of $1,000 to Mutual Home & Savings Association shall also cover this property, it being agreed that out of said payment of $1,550 one thousand shall be used to pay off said association mortgage.”

Complainants had no means to provide for the payment of these claims against their Grand Eapids property, and by agreement, in order to make such provision, defendant Sarah A. Strickland executed two mortgages of $1,000 each, on April 13, 1907; one covering this farm, and another covering the Grand Eapids property, both mortgages to the Home & Savings Association. The record does not show a deed of the Grand Eapids property from complainants to her, but it is evident that in order to carry out the above agreement one was given. The $1,000 realized from these mortgages, and $148 above mentioned, was left in the hands of Mr. Shepard to be paid by him on claims against the building on the Grand Eapids property as he had been authorized. The entire amount was paid out as directed. This security for $1,000 was evidently given in reliance by this defendant upon the last paragraph of the contract of March 23d, above set forth, wherein complainants consented thereto, and agreed to pay this amount to the association in discharge of this mortgage out of the first payment of $1,550.

Possession was given to complainants under this contract. They at once, as defendants claim, without their consent, sublet this farm, or a portion of it, to a man named Doyle, who brought some farm stock upon the place, among which were some sheep, which were turned into the orchard and did damage by girdling the trees. Learning of these facts, and claiming forfeiture on account of other defaults in this contract, defendants went into possession of the farm early in July, 1907. Complainants had knowledge of this on July 10th, and, on July 12th, Mr. Welling was found and served with the following written notice of forfeiture:

“ Grand Eapids, July 5, 1907.
“Leonard A. Welling and Nellie M. Welling,
“Grand Eapids, Michigan.
“You are hereby notified that a certain contract made the 23d day of March, 1907, between myself as first party and yourselves as second party, by which you purchased on contract [here follows a description of the farm], is hereby declared forfeited and by me will be held for naught, you having neglected and refused to pay the interest on said contract as therein provided, and you have sublet a portion of said premises without any written consent from me and otherwise violated said contract.
“Sabah A. Strickland.”

Defendants retained this possession without interference by complainants until service of process of subpoena and injunction in this case on August 30, 190?. Doyle recognized their possession, and remained there occupying part of the house until in the fall of the year after defendants went in.

Before the commencement of this suit complainant Leonard A. Welling had seen the farm but twice, and had never been there over night. About 10 days after service of process on defendants, Mr. Welling, by advice of his attorney, went to the farm to move in. He was refused possession by Mr. Strickland. He then took hold of the old man, threw him down, and dragged him out into the road, and then moved his household goods into the house. A writ of forcible entry and detainer was issued on application of defendants, and pending that proceeding these parties met at the commissioner’s office, where if was agreed, as complainant testifies,

“ To let the matter stand, and Strickland would go on and run the farm, and I was to let him alone, and he would keep an exact account of what he paid and got off the farm. I did not understand that I was to have possession of the farm at all in any shape or manner until the case was over.”

Under this agreement defendants continued in possession of the farm to abide the event of this litigation, and the proceedings were discontinued. A hearing was had, and a decree was granted in favor of complainants, adjudging:

(1) That defendant Sarah A. Strickland was not entitled to have the contract forfeited.

(2) Both parties are ordered to perform the contract.

(3) That defendants pay complainants $768.04 damages.

(4) That the $1,550, due defendants November 1, 1907, is a subsisting claim against the premises, from which complainant is entitled to deduct $768.04 as of July 18, 1908, and the balance to be a lien on the premises to be paid within 60 days from December 81, 1908, the date of decree.

(5) That in case complainants pay said sum to defendants on or before 60 days from the filing of the decree, then defendants shall forthwith deliver up possession of the premises to complainants.

Costs were also decreed. Defendants have appealed, claiming that this decree should be reversed upon several grounds. These contentions will be considered in the order presented.

As to forfeiture:

Default for Nonpayment of Interest. Complainants by the contract of March 23, 1907, agreed to purchase this farm, and to make payments as follows:

“ * * * $1,550 on Nov. 1, 1907, with interest on $1,800 thereof payable at Mutual Home & Savings Association at $6.70 per month, together with interest on the remainder of the whole sum that shall be from time to time unpaid, at the rate of six per cent, per annum, to be computed from April 1, 1907, and to be paid November 1, 1907. * * * ”

Defendants contend that the interest on $1,300 of this $1,550 payment due November 1, was by this agreement payable $6.70 monthly at the place named. We agree with this construction as given to that clause of the above quotation. The reason for this provision clearly appears in the record. Both parties were dealing with this savings association, which makes loans upon monthly payments of interest. The $1,000 procured from it was used to pay complainants’ indebtedness, and to complete the house on their property, and by agreement was secured by mortgage on this farm. The $300 was another item. Out of the November payment, $1,000 was to be paid to the association by complainants to wipe out this mortgage. The secretary testified:

“The $6.70 monthly interest was the $5.20 per month on the $1,000 mortgage to which was added the interest on 300 at 6 per cent., which would be $1.50.”

In no other connection in the record is this amount of interest mentioned. The cross-examination of complainant Welling indicates that he so understood it by repeatedly saying he had instructed Mr. Shepard to pay $6.70 for the April interest. Complainants did not pay this interest as agreed, and were in default in that respect. The foregoing construction of the clause relative to the payment of interest monthly is the only construction which will make the entire paragraph quoted intelligible.

Subletting. The question of subletting in this case is to be determined from the evidence. That the man Doyle was at once put into possession of these premises by complainants is not disputed. He was the only person in actual possession of the house, and all of the land (except a few acres sowed with oats, and put into beets by others), from the time the transfer was made until defendants took possession early in July. There is considerable testimony as to the relation between Doyle and complainants. From the testimony of complainant Welling it appears that Doyle was in such complete possession, and had such entire control of the crops he was raising there, and the division and separation of a share of the same to the complainants, and was acknowledged by them as paying for the use of the house by looking after the place, that the relation is only consistent with that of landlord and tenant. Such relation amounted to a subletting by complainants, for which no consent was obtained, as required by the contract.

Nonpayment of Insurance and Taxes. The contract required complainants to keep all buildings on the place insured in the name of defendants, and in case of loss, if not mutually agreed between them to use insurance recovered to repair and rebuild, it was to be paid to defendants and indorsed as payment on the contract, and balance over, if any, to belong to complainants. Complainants agreed also to pay all taxes levied against the premises. In both respects they defaulted. Defendants were obliged to pay insurance and taxes.

As to Committing Waste. The man Doyle was of dissolute and careless habits. He allowed his stock which he brought and kept upon the premises to wander at will. The record shows that the young trees in the orchard were girdled and destroyed by its sheep. The destruction of fruit trees is waste. Stevens v. Rose, 69 Mich., at page 270 (37 N. W. 205). Complainants were prohibited by the terms of the contract from committing or permitting waste on these premises.

As to Forfeiture Resulting from these Defaults. The contract contained a forfeiture clause, in case of any violation of its agreements or neglect to perform its obligations by complainants, and both notice to quit and of forfeiture were expressly waived. It is claimed that defendants must rely upon the defaults specified in the notice of forfeiture which was given, and that defaults on other grounds cannot be considered. In the case at bar defendants had gone into possession on or about the 1st of July. The tenant Doyle made no objection, and recognized their possession. Complainants had actual notice of this entry and possession on July 10th, and made no objection nor disputed defendants’ rights until August 30th following, when process in this suit was served. This possession was notice to the complainants of forfeiture of the contract on their part. The service of a written notice was unnecessary by the terms of the contract, and giving such notice, if construed as insufficient, which we find unnecessary to decide, would not under these circumstances operate as a waiver. We cannot agree with complainants that the only grounds of forfeiture upon which defendants may rely are those specifically set up in the notice. We find from the record all of the grounds for forfeiture claimed by defendants, including those specified in the notice, were established, by the proofs, and that defendants, at the time the bill of complaint was filed, had been in possession of the premises, with the knowledge of complainants, for a period of 60 days, and this possession was a lawful one. Therefore, by reason of their defaults and the forfeiture of this contract, complainants were not entitled to a decree for the relief sought. Complainants insist that the first contract is not material to the issue in this case, and should not be considered. To understand the relations of these parties at the time the second contract was made, and also that they were at that time acting under the first contract, and used the money ($1,000) procured from the mortgage on the farm, it was necessary to know the terms of the first contract. Complainants’ entire case depended upon their contention that they were not in default on the second contract, and that it should not be forfeited.

Having failed in establishing their case, and the condition of the pleadings not being such that the court may consider any other questions, nothing remains but to reverse and set aside the decree of the circuit court, and enter a decree in this court in favor of defendants, declaring the contract forfeited, with costs of both courts.

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


text:
      In re PARR’S ESTATE.
    1. New Trial — Appeal and Error — Weight oe Evidence.
    The jury are the sole judges of the weight to be given to competent evidence on conflicting claims.
    2. Continuance — Grounds.
    An appellant who is interested in but one issue is not entitled to a continuance on the ground that the adverse party, on an appeal from probate court, appeared for the first time in circuit court, and was prepared to contest the question.
    3. Executors and Administrators — Powers and Duties.
    The right of the appellee as executor of the estate of decedent’s wife, who was killed in the same accident as decedent, to appear in a proceeding involving the rights of survivorship of the two decedents, is concluded by the decision in Clifton v. Keeler, 158 Mich. 615 (123 N. W. 22).
    Error to Jackson; North, J., presiding.
    Submitted January 14, 1910.
    (Docket No. 51.)
    Decided May 7, 1910.
    Rehearing denied July 15, 1910.
    George L. Keeler, administrator, with the will annexed, of the estate of John Parr, deceased, presented his final account asking for its allowance and an order of distribution. The account was allowed in the probate court, and Elizabeth Clifton and others appealed to the circuit court. A judgment sustaining the order of the probate court is reviewed by contestant Clifton on writ of error.
    Affirmed.

      R. 8. Woodliff and James J. Noon, for appellant.

      Richard Price and Benjamin Williams, for appellees.
   McAlvay, J.

The administrator with the will annexed of the estate of John Parr, deceased, filed his final account in the probate court of Jackson county, asking for an allowance of the same, and for an order of distribution. From an order granting the petition of the administrator, Elizabeth Clifton appealed, upon several grounds, to the circuit court. Another appeal from the same order was made by two others who claimed to be entitled to share in such distribution. These appeals appear to have been consolidated and heard together in the circuit court. The case was tried before the court with a jury, and a verdict returned against appellants, upon which a judgment in the usual form was entered. Elizabeth Clifton, upon a writ of error, seeks a reversal of this judgment for claimed errors assigned by her.

John Parr and his wife were childless. He died leaving an estate of about $16,000. During his lifetime he made a will devising and bequeathing all of his estate, after payment of debts and expenses of administration, except $1,500 in specific legacies, to his wife, and appointed her executrix. All of these facts are not printed in the record, but nearly all are mentioned in the record and briefs, and the court has knowledge of them from the record and briefs in a recent case before it, which arose out of the present litigation. (Clifton v. Keeler, 158 Mich. 615 [123 N. W. 22].)

The appellant in this controversy claims as trustee and assignee of the heirs of John Parr. The appellee represents his estate as administrator with the will annexed. The sole question submitted to the jury, under oral stipulation in open court, was that of survivorship of these parties. If Mr. Parr died first, his wife would take under the will, and the estate would descend to her heirs. If she died first, appellant and others claiming through him, upon a proper showing to that effect, would inherit his estate. The jury found that Mrs. Parr survived her husband. A motion was made by appellant to set aside this verdict, because not supported by evidence, and against the weight of the evidence in the case. This was denied, and error assigned upon such denial is the basis of the principal argument of appellant. All of the evidence in the record upon this question has been read and carefully considered. It will be unnecessary and without profit to digest the testimony, and give the details of this fatal accident which crushed out the lives of these two individuals. The record contains competent evidence to be considered by the jury in determining the question of survivorship, and the verdict is supported by evidence. The jury were the sole judges of the weight which should be given to it, and in our opinion the verdict was not against the weight of the evidence.

We do not find any errors committed in the charge of the court or refusals to charge, nor in the argument of counsel for appellee to which exception was taken.

Another question requires attention. At the opening of the trial counsel for appellant stated to the court that he was ready for trial as the issue then stood; but if the administrator of the estate of John Parr was to be represented and take part in the case, appellant was not ready, for the reason that the administrator of Mary Parr’s estate had entered no appearance in either court, and had made no contest in probate court; that appellant was ready to meet any question which the administrator was properly and legally entitled to contest; and that if put to trial upon the question of survivorship a continuance must be asked. The court denied the motion for a continuance, and allowed the administrator to be represented by counsel and take part in the trial. Error is assigned upon such ruling. It is urged by appellant that the administrator of Mr. Parr’s estate had no right to take any part in this contest, or to litigate the question of survivorship, which is to determine who are entitled to that estate.

It appears from the record that this administrator with the will annexed was the appellee in the circuit court, and was recognized by the appellants as the adverse party in serving notices required in the proceedings. The only question appellant was interested in was that of survivor-ship. It cannot be claimed to be a surprise to her because the adverse party was present in court to try that issue. It was within the discretion of the court to permit an attorney to represent appellee upon the trial of the probate appeal.

The objection of appellant goes further, and rests upon the claim that this administrator had no right to take part in the determination of her appeal. This court has already expressed its opinion upon that question in a case already mentioned, where this appellant filed her bill of complaint against this administrator, seeking to restrain him from doing the identical thing he was undertaking to do in the case at bar. The relief was denied and the bill dismissed. Clifton v. Keeler, 158 Mich. 615 (123 N. W. 22). No error was committed in overruling this objection of appellant.

The judgment of the circuit court is affirmed, and the case will be remanded, to be certified to the probate court for such further proceedings as may be required by law.

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