text:
    John Hurst, Prosecuting Attorney of Chippewa County, v. Frank R. Warner.

      Constitutional law — Delegation of legislative power — State Board of Health — Disinfection of baggage — Validity of rules.

    1. Act No. 230, Laws of 1885, as amended by Act No. 47, Laws of 1893, entitled “ An act to provide for the prevention of the introduction and spread of cholera and other dangerous, communicable diseases,” and the effect of the provisions of which is to declare it unlawful for any person to refuse to permit his baggage and personal effects to be disinfected in accordance with the rules and regulations of the State Board of Health, made and established pursuant to said act, is not unconstitutional for the reason that it delegates to the State Board of Health legislative power, in contravention of section 1 of article 4 of the Constitution, which vests the legislative power in a Senate and House of Representatives.

      2. By section 3 of the act, the State Board of Health is authorized to establish general rules, and, by an inspector acting by virtue thereof, to detain railroad cars or other public or private conveyances whenever it shall be shown to the satisfaction of the board, or to the inspector, as provided in such rules, that such cars or other conveyances contain any passenger, person, or property which has been exposed to cholera, diphtheria, or other dangerous, communicable disease, or when it shall be shown to the satisfaction of the board or inspector as aforesaid that any passenger, person, or property is being transported on such cars or other public or private conveyance from any locality within or without this State where any such dangerous, communicable disease exists, and where, under the circumstances shown to such board, such persons or property are likely to carry infection of such’ dangerous, communicable disease. And it is held that a rule which does not make it a prerequisite to the inspection authorized by section 3 that the baggage being transported come'from a locality where such dangerous, communicable disease exists, as ascertained either by the board or inspector, is broader than the statute, and cannot be sustained.
    :3. The Court are not to be understood as intimating that it would not be competent for the Legislature to provide for the disinfection of all baggage, where, in the opinion of the State Board of Health, from the prevalence of a contagious disease, such' precaution is necessary.

      Certiorari to Chippewa. (Steere, J..)
    Argued June 28, 1894.
    Decided September 27, 1894.
    Relator applied to the circuit court for a mandamus to ■compel respondent to issue a warrant for the arrest of a person charged with the violation of a rule adopted by the State Board of Health under Act No. 47, Laws of 1893, and brings certiorari to review an order denying the writ.
    Affirmed.
    The facts are stated in the opinion.

      A. A. Ellis, Attorney General, for relator.

      E. C. Chapin (John D. Conely, of counsel), for respondent.

       With this case in 26 L. R. A. 484, is an extensive . note on quarantine regulations by health authorities.

   Montgomery, J.

The relator, who is prosecuting attorney for the county of Chippewa, on the 24th of November, 1893, presented to the respondent, who is a justice of the peace of said county, a complaint alleging that one Robert B. Finch was a station agent of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company at Sault Ste. Marie, and on the 23d of November, 1893, was in charge of a train belonging to said railway company; that on said train there was baggage, consisting of clothing, wearing apparel, etc., belonging to one Edmund Watelet, an immigrant, late of Havre, France, who was traveling through Michigan to Minneapolis, and whose baggage was liable to be disinfected by one Thomas N. Rogers, an inspector authorized by the Michigan State Board.of Health to disinfect the baggage of all immigrants destined to pass into or through the State of Michigan; that said Finch was requested by said Rogers to detain said baggage for inspection and disinfection, and willfully refused so to do, and proceeded with said train and said baggage into and through Michigan, in violation of rule No. 2, framed and published by the Michigan State Board of Health under Act No. 230, Laws of 1885, as amended by Act No. 47, Laws of 1893, of this State. Upon the presentation of this complaint the respondent was requested by the relator to cause a warrant to be issued, based upon said complaint, but he declined to do so for the reason that Act No. 47, Laws of 1893, was unconstitutional and void, and for the further reason that, if said act was not void, rule No. 2, upon which the prosecution was based, was not. authorized by said act, and that the Board of Health exceeded its authority in passing said rule. The relator then applied to the circuit court for a mandamus, which was refused, and a writ of certiorari has been issued to review the decision of the circuit judge. The two questions presented here are those which determined the action of the justice.

1. It is contended, and the circuit judge held, that the statute in question is unconstitutional for the. reason that it delegates to the State Board of Health legislative power, in contravention of section 1 of article 4 of the Constitution, which provides that the "legislative power is vested in a Senate and House of Representatives.” To determine the question involved, it is necessary to refer at some length to the provisions of the statute. Section 1 provides that—

"Whenever it shall be shown to the satisfaction of the State Board of Health that cholera, diphtheria, or other dangerous, communicable disease exists in any foreign country, neighboring state, or locality within this State, whereby the public health is imperiled, and it shall' be further shown that immigrants, passengers, or other persons seeking to enter this State, or to travel from place to place within this State, are coming from any locality where such dangerous, communicable disease exists, and are likely to carry infection of such dangerous, communicable disease, the State Board of Health shall be authorized to establish a system of quarantine for the -State of Michigan, or for any portion thereof.”

Section 2 provides that—

" Such quarantine shall be for the purpose of preventing all ‘ immigrants, passengers, or other persons, under the circumstances mentioned in section one of this act, from entering the State, or from going from place to place within the State, who, in the opinion of the State Board of Health, or in the opinion of an inspector duly appointed by said board, are likely to carry infection of cholera, small-pox, diphtheria, or other dangerous, communicable disease; and for the detention of all such persons outside the borders of the State, or, if already within the State, at the places where they may be or at the place they have been exposed to or have contracted such dangerous, communicable disease, or at such suitable place as such board may provide, during the period of the incubation of such disease, or of its existence if already developed, and until, in the opinion of the State Board of Health, such persons are free from all danger of infection.”

Section 3 provides that—

“The State Board of Health is authorized to establish general rules, and, by an inspector acting by virtue thereof, to detain railroad cars or other public or private conveyances whenever it shall be shown to the satisfaction of such board, or to the inspector, as provided in such rules, that such cars or other conveyances contain any passenger, person, or property which has been exposed to cholera, diphtheria, or other dangerous, communicable disease, or when it shall be shown to the satisfaction of such board or inspector as aforesaid that any' passenger, person, or property is being transported on such railroad cars or other public or private conveyance from any locality within or without this State where any such dangerous, communicable disease exists, and where, under the circumstances shown to such board, such persons or property are likely to carry infection of such dangerous, communicable disease. In such case said board may, by its duly constituted inspectors, remove, isolate, place under the care of local boards of health, order to be returned to the places whence they came, or dispose of in any other manner it may consider proper, all railroad cars or other conveyances, all passengers in such railroad cars or other conveyances, when there is reason, as aforesaid, to believe such may have contracted or become infected with any dangerous, communicable disease, or have been exposed or infected by any such disease in a manner likely to render them bearers of infection. * * * ”

Section 4 provides:

“All such persons, their baggage and other personal effects, and all such conveyances shall be disinfected under such rules and regulations as the State Board of Health may establish for the purpose of carrying into effect the provisions of this act, before such persons or baggage or conveyances shall be permitted to enter the State, or to proceed to their or its destination if already in the State.”

Section 5 provides for the disinfection of goods, merchandise, conveyance, or other property which the State Board has reason to believe may carry the germs of cholera, or other dangerous, communicable disease, and authorizes the board, under the circumstances mentioned in sections 2 and 3 of the act, to prohibit the entry of such goods, merchandise, or other property into the State, or their being moved, if within the State, until such disinfection shall be accomplished. Section 6 provides:

“It shall be the duty of the State Board of Health to frame and publish rules for the inspection, isolation, detention, and disinfection contemplated in this act. Whoever shall willfully violate .the rules of the State Board of Health, made in pursuance of this act, or the order, by its duly appointed inspector, made in obedience to such rules, shall be deemed guilty of a misdemeanor, and oh conviction thereof shall be liable to payment of a fine of $100 and costs of prosecution, or imprisonment in the county jail for a period not to exceed 90 days,” etc.

As was said by Chief Justice Marshall in Wayman v. Southard„ 10 Wheat. 1:

“It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others powers which the legislature may rightfully exercise itself. * * * The difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law. But the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a snbjeot of delicate and difficult inquiry.”

'In Re Griner, 16 Wis. 423, 433, Mr. Justice Cole, speaking for the court, and referring to the rule that the powers of the different departments are not to be confounded, or delegated by the one department to the other, said:

“ Most of the propositions stated are recognized political maxims, under our form of government. It is only the conclusion or deduction from those propositions about which any doubt can exist. No one will seriously contend that Congress can delegate legislative power to the President. But a distinction must be made of f those important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provision to fill up the detail.3 It would seem that the power given to the President to make all rules and regulations to carry into effect the law for calling out the militia is of the latter character. Congress might have regulated by its legislation the whole details of the draft, if it had thought proper to do so. But having, in the most ample manner, clothed the President with power to call forth the militia, it further provided that he should make all proper rules and regulations for the enforcement of the draft, where state laws upon the subject were defective. * * * This no more partakes of legislative power than that discretionary authority intrusted to every department of the government in a variety of cases. This practice of giving discretionary power to other departments or agencies, who were intrusted with the duty of carrying into effect some ■general provisions of law, had its origin at the adoption of the Constitution, and in the action of the first Congress under it, as the federal legislation abundantly shows.33

See, also, as bearing upon this question, Field v. Clark, 143 U. S. 649; Locke’s Appeal, 72 Penn. St. 491; Railroad Co. v. Smith, 70 Ga. 694.

In the present case we think it can hardly be doubted, .under the authorities cited, that the Legislature might have provided for the disinfection of the baggage and personal effects of travelers coming from infected ports, under the direction of an inspector of the board. To have made such a law effective, it would have been essential that the inspector should be given authority to act, and to make it a misdemeanor to refuse to recognize his authority. The present act does nothing more, except that it provides that such disinfection shall take place under general rules to be adopted by the State Board of Health. The rules relate to matter of detail. It is well known that there are different methods of disinfection. It was properly left to the board, by the Legislature, to determine as to these methods; and, instead of intrusting it to the discretion of the individual inspector, it was prescribed that general rules should be adopted.

We are referred to the case of Senate of Happy Home Clubs v. Board of Supervisors, 99 Mich. 117, as authority for respondent’s contention. The statute considered in that case bears no analogy to the statute under consideration. The power was there delegated to a private corporation to make rules governing the conduct of the accused, the observance of which rules should operate to acquit and discharge the accused. This did not leave a discretion in public officials as to the mere details of the operation of the law, but was an attempt to delegate power to a private corporation, which it was clearly beyond the authority of the Legislature to do.

Eeliance seems to have been placed by the circuit judge upon the two cases of Ex parte Cox, 63 Cal. 21, and Board of Harbor Commissioners v. Excelsior Redwood Co., 88 Id. 491. In the latter casé an attempt was made to confer upon the board of harbor commissioners the power to prescribe rules and fix the penalty for their violation, which clearly distinguishes it from the present. In the ■case of Ex parte Cox the petitioner was convicted of a misdemeanor consisting of the violation of a rule and regulation of the board of state viticultural commissioners. The act of the legislature in question declared that the board should have power to declare and enforce rules and regulations in the nature of quarantine, to govern the manner of and restrain or prohibit the importation into the state of infected articles and empty fruit boxes, and declared that a willful violation of the quarantine regulations of the board should be a misdemeanor. The court ■say:

The act before us does not say it shall be unlawful to import, distribute, or dispose of infected articles, but it attempts to confer upon the board the power to so declare.”

We think onr statute is distinguishable in principle from the one here dealt with. The effect of the' provisions of our statute is to declare it unlawful for any person to refuse to permit his baggage and personal effects to be disinfected in accordance with the rules and regulations of the State Board of Health. The rules and regulations are limited to the purposes which are specifically described by the act.1 We think the statute is constitutional.

2. As above stated, by the act of 1893 it was not intended to confer upon the board any power beyond that of fixing the method to be adopted in carrying into effect the details of the isolation, inspection, disinfection, etc., provided for by the law itself. By the first section the board is authorized to establish a quarantine when it is shown to the satisfaction of the board that dangerous, communicable disease exists in any foreign country, neighboring state, or locality within this State, and when it is. further shown that immigrants, passengers, or other persons seeking to enter this State, or to travel from place to place within this State, are coming from any locality where such dangerous, communicable disease exists. By section 3 it is provided that—

“The State Board of Health is authorized to establish general rules, and, by an inspector acting by virtue thereof, to detain railroad cars or other public or private conveyances whenever it shall be shown to the satisfaction of such board, or to the inspector, as provided in such rules, that such cars or other conveyances contain any passenger, person, or property which has been exposed to cholera, diphtheria, or other dangerous, communicable disease, or when it shall be shown to the satisfaction of such board or inspector as aforesaid that any passenger, person, or property is being transported on such railroad cars or other public or private conveyance from any locality within or without this State where any such dangerous, communicable disease exists, and where, under the circumstances shown to such board, such persons or property are likely to carry infection of snch dangefous, communicable disease.”

A careful examination of tbe rules declared by tbe board, and particularly of tbe one alleged to have been violated, leads us to tbe'conclusion that tbe board exceeded the authority conferred by the statute, by the promulgation of the rale in question. The rules.recite the existence of communicable diseases in various foreign countries, from which immigrants are coming to the United States in large numbers, and then proceed, by rule 2:

“Except as hereinafter specifically excepted, all baggage of all immigrants, and all containers of all such baggage, destined to pass into or through Michigan, must be detained until disinfected.”

The exceptions mentioned are:

First. “Baggage bearing a certificate issued by an inspector authorized or accredited by the Michigan State Board of Health.”
Second. Baggage contained in sealed cars, such seals not to be broken or the cars, opened in the State of Michigan.
Third. “ Hand baggage of immigrants used en route, and known to have crossed the ocean in ships uninfected with any dangerous, communicable disease, or bearing a certificate of disinfection, issued by an inspector authorized or accredited by the Michigan State Board of Health.”

Under these rules the baggage of all immigrants was subject to disinfection, whether such immigrant came from a port or locality where any dangerous, communicable disease existed or not. Indeed, there was no allegation in the complaint that the baggage in question came from such locality. This is beyond the power of the board.

ffe do not intimate that it would not be competónt for the Legislature to provide for the disinfection of all baggage, where, in the opinion of the State Board of Health, from the prevalence of a contagious disease, such precaution is necessary. But, instead of doing so, it is .provided by section 3 that the board is authorized to establish general rules, and, by an inspector acting by virtue thereof, to detain railroad cars or other public or private conveyances whenever it shall be shown to the satisfaction of such board, or to the inspector, as provided in such rules, that such cars or other conveyances contain any passenger, person, or property which has been exposed, etc., or when it shall be shown to the satisfaction of such board or inspector as aforesaid that such passenger, person, or property is being transported from any locality wliere any such dangerous, communicable disease exists, and where such persons or property are likely to carry infection of such dangerous, communicable disease. The rule in question did not make it a prerequisite to the inspection that the baggage being transported come from a locality where such disease existed, as ascertained either by the board or inspector, and in this respect was broader than the statute, .and cannot be sustained.

It follows that the justice was right in refusing to issue The warrant. We have, however, gone at length into the ■consideration of the provisions of the statute to show to what extent authority is conferred upon the board, as the question involved is one of great public importance.

The judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J. McGrath, C. J.

license: Public Domain

text:
    Katherine K. C. Barnes v. Kathleen M. Marshall et al.

      Will — Construction—Vested estate — Remainder.
    The question involved in this case is whether the will, to construe which the bill. is filed, gives to the wife of the testator the property therein mentioned absolutely or for life. And it is held that the wife did not take an absolute vested estate, but that it was the intention of the testator to place the funds in the hands of his executors, to be paid over to his wife from time to time, and at her death, if anything remained, such remainder to be divided among the other legatees as mentioned in the will. ,
    - Appeal from Grand Traverse. (Eamsdell, J.)
    Argued April 26, 1894.
    Decided September '27, 1894.
    Bill to construe a will. Defendant Marshall appeals.
    Decree reversed, and one entered In this Court in accordance with the opinion.
    The facts are stated in the opinion.

      Hatch é Wilson, for complainant.

      Brennan, Donnelly & Van DeMarh, for appellant.
   Long, J.

The bill was filed in this cause to obtain a construction of the last will of Smith Barnes, deceased. The case was heard below upon bill and answer, and a decree entered there, finding that an absolute estate in all the legacies mentioned in the first paragraph of the will became immediately vested, on the death of the testator, in Katherine K. 0. Barnes, widow of the deceased; that by. the fifth paragraph an absolute estate in all the rest, residue, and remainder of the estate, except the legacy of $600, mentioned in the second paragraph, to Kathleen M. Marshall, and the legacies mentioned in the third paragraph, to the executors of said will, became vested immediately in Katherine K. C. Barnes, widow of said deceased; and that the widow is entitled to receive the estate so vested in her at once. From this decree Kathleen M. Marshall appeals. The following is a copy of the provisions of the will and codicil:

“First. I give and devise to my wife,«Katherine Kip Clarke Barnes, and her heirs and assigns, all of lots numbered seven (7) and eight (8), of block numbered thirteen (13), in the village of Traverse City, according to the recorded plat thereof, in the county and State aforesaid, being our home, known as ‘ Ingleside,’ together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining; to have and to hold the premises above described to my said wife and to her heirs and assigns forever. I give and bequeath to my said wife all my furniture, clothing, jewelry, musical instruments, “paintings, engravings, pictures, statuary, books, bedding, household goods, implements, and utensils of whatever name or kind, horses and carriages; also all life and accident insurance policies on my life, and all money which may be derived from the same. I also give and bequeath to my said wife the sum of $30,000, to be paid to her at the rate of $3,000 each year, reckoning from the time of my decease. I direct that all the above legacies and, bequests to my said wife shall be paid in priority to all other legacies or bequests herein given.
Second. After the foregoing legacies and bequests are paid, if there shall be anything left, I give and bequeath to Mrs. Sylvia Tapping, of Fowlerville, Michigan, the sum of $300, the same being for services rendered; to Kathleen M. Marshall, now of Traverse City, aforesaid, the sum of $600, as extra compensation for services rendered; and to Lucretia A. Gillett, of Saline, Washtenaw county, Michigan, the sum of $300. In case of the death of any of the legatees mentioned in this paragraph previous to the payment of the bequest or bequests herein given to such deceased legatee or legatees, then the said bequest or bequests to said legatee or legatees shall be inoperative and void, and shall revert to my estate.
Third. I give and bequeath to each of the following named persons, as my executors, viz., Perry Hannah, Charles A. Crawford, and Reuben Hatch, the sum of $800.
Fourth. It is my express desire that at my decease the affairs of my estate be so surrounded by bounds that my said wife shall receive the greatest possiblp benefit from my estate and the bequests herein given her. To that end I declare that she shall at once enter into possession of our home, ‘ Ingleside,’ and all the property, goods, and effects mentioned in the first paragraph of this will, and at once obtain, on payment of the same by the insurance companies, the amount of my life and accident policies, thinking that will furnish sufficient ready money for her immediate needs. I direct that if the insurance money, or any portion thereof, should not be paid, or if anything more than the usual delay in the payment of the same should occur, the deficiency be made up and immediately paid to my said wife from the legacies hereinbefore given to her. To provide for the continued comfort of my wife, I desire that she shall receive such amounts yearly as she shall require for her comfort and convenience, and would prefer that, after the fund first paid over shall have been exhausted, or nearly so, the remainder be paid to her in yearly installments of $1,500 or $2,000, and that the portion of her legacies remaining in the hands of my executors be invested in a perfectly safe manner, and át a fair rate of interest, keeping the same, so far as may be, intact against more pressing needs and increasing years.
“Fifth. All the rest, residue, and remainder of my estate, after the payment of the legacies hereinbefore mentioned, I give, devise, and bequeath to my said wife. -
“Sixth. But in case of the decease of my said wife prior to the payment to her of all or any of the legacies herein bequeathed to her, I direct that the remainder of said legacies unpaid shall immediately, on the death of my said wife, revert to my estate, and be expended by my executors in the payment of other legacies, if the same shall not have been already paid; and that such remainder shall, in such case, be first applied in payment of legacies hereinbefore mentioned, which legacies shall then be paid in priority to all others herein given, if there shall be sufficient of said remainder left unpaid to my said wife to pay the same. If there shall not be sufficient left, then whatever there shall be shall be applied pro rata in payment of the legacies hereinbefore mentioned. If in case of the death of my said wife, as aforesaid, before the payment to her of all or any of her said legacies, after the payment of the legacies hereinbefore mentioned, there shall still be a surplus of said remainder of the legacies to my said wife unpaid, I give and bequeath the same, not exceeding $16,000, to the following persons, and in the following manner, namely: Three-eighths of said surplus to Miss Kathleen Marshall, of Traverse City, Michigan; three-eighths to my brother-in-law, Henry K. Clarke, of Ocoee, Orange county; Florida; and s one-fourth to the Traverse City Ladies’ Library Association, or its successor, as a library fund, to be known and designated by my name.- If there shall be any of said surplus remaining over and above said $16,000, I give and bequeath one-eighth of the same to Allie Crawford, daughter of Charles A. Crawford, of Traverse City, one-fourth to said Kathleen M. Marshall, one-eighth to Mary E. Hooker, of Traverse City, aforesaid, one-fourth to said Dr. Henry K. Clarke, and one-fourth to the Traverse City Ladies’ Library Association; or its successor.
“Seventh. I appoint my said wife, Katherine Kip Clarke Barnes, Perry Hannah, and Charles A. Crawford, all of Traverse City, aforesaid, and Reuben Hatch, of the city of Grand Rapids, in the county of Kent, and State aforesaid, executors of this, my last will, and instruct and empower them, as my executors, to dispose of my estate as directed to in my said will, and also to make sale ■of and convey by deed or other sufficient conveyance my real estate as well as personal property, as they shall deem it for the best interests of my estate. Their attention is called to certain schedules of my property and life and accident insurance policies on my life, which will be found with this will, and which show a correct statement, as near as may be, of the value of my estate at the dates named in said schedule. In case of the death of one or more of my executors, I direct that the survivor or survivors have full authority to execute my said will, and do all things thereunder as though all my executors were living.”
Codicil: “Whereas, by my said will, in the second paragraph thereof, I bequeathed to Mrs. Sylvia Tapping, of Fowlerville, Michigan, the sum of $200, and to Lucretia A. Gillett, of Saline, Washtenaw county, Michigan, the sum of $200, in the event of there being anything left of my estate after the payment of certain other legacies in my said will provided for: I now declare that it is my will that the aforesaid legacies to the said Mrs. Sylvia Tapping and Lucretia A. Gillett be revoked, and I do hereby revoke the same, and I direct that the money bequeathed to them in my said will as aforesaid be distributed in accordance with the remaining provisions of my said will, the same as though no such legacies had been mentioned in my said will.”

The testator died on June 19, 1891, and thereafter the will was duly admitted to probate, and letters testamentary were issued to the complainant and Eeuben Hatch. An inventory of the estate was made, from which the value was found to be upwards of $100,000. The complainant has received the real estate, goods, chattels, and insurance money mentioned in the first paragraph of the will, and two installments of $3,000 each of the $30,000 mentioned in the first paragraph. The construction given to the will by the court below is in accordance with the claim of the complainant.

Counsel for Kathleen M. Marshall contend that the remainder of the testator’s estate over and above the absolute gifts to complainant was to be invested by the executors in good securities, and that a fund of $30,000 was to be created, from which complainant should be paid $3,000 each year, reckoning from the time of her husband’s death; that, if complainant should die at any time during the 10 years immediately following her husband’s death, the balance of the. $30,000 remaining in the hands of the executors should at once revert to the testator’s estate, and be expended in the payment, of other legacies; that, even if the entire gift of $30,000 became vested at the death of the testator, it is liable to become divested as to such portions as may remain in the hands of the executors at the time of complainant’s death. • Counsel for defendant further contend that as to the remainder of the estate it was the intent - of the testator that, if his wife should live to exhaust the fund'of $30,000, she should have out of the remainder such sums yearly as might be necessary for her support in the manner she had always lived, and no more; that nowhere in the will is the wife given unlimited power of disposition, which is usually attached to absolute gifts. The argument of counsel is that—

This power, by the seventh paragraph, is lodged in the executors, who are authorized to séll his real estate and personal property as they shall deem for the best interests of his estate; and, by the language of the fourth paragraph, she is expressly limited to such sums yearly out of the remainder as she shall require for her comfort and convenience. How much of the remainder would be required for this purpose was a matter of conjecture. She might not require any of it. There was, in his mind, a possibility that she might require all of it. She.might live many years, and the amount of this remainder, by depreciation in value, might decrease in the hands of his executors, so that the wife would, before her death, require all, or nearly all, of it. Having this in mind, he desired that the remainder should be held by the executors, and not divided among his other legatees until the possibility that his. wife might require it had been removed by her death; and, after directing the manner in which the remainder should be paid to her, in order that there might be no doubt about his wishes to keep it intact against the possibility of its being required for her use, he adds the, words of the gift of the fifth paragraph, but immediately qualifies the gift by the proviso at the beginning of the sixth paragraph, to the effect that if she shall die before she has received all or any of her legacies, which presupposes that they shall be paid to her as he had already directed, then such remainder shall immediately revert to his estate to, pay other legacies. He directs that from the remainder at the death of his wife, or the ‘surplus/ as it is called in the will, a sum not exceeding $16,000 shall be divided among certain persons, whom he names, — three-eighths of it to apjoellant, and three-eighths to his wife's brother, Henry K. Clarke. The will then continues: ‘If there shall be any of said surplus remaining over and above said $16,000, I give and bequeath one-eighth of the same to Allie Crawford, daughter of Charles A. Crawford, of Traverse City; one-fourth to said Kathleen M. Marshall/ etc. From this language the conclusion is irresistible that the testator anticipated that at the death of his wife there would be at least $16,000 of his estate unpaid to his wife by his executors, and he directs in positive terms how it shall be disposed of. This limitation in remainder shows that in the opinion of the testator he had not given an absolute estate, by the words of the fifth paragraph, to the wife, but that they were qualified by the direction immediately following in the sixth paragraph, that at her death the remainder unpaid to her should revert to his estate."

Counsel contend that by this construction only can all the clauses of the will be harmonized.

It is evident that by the construction contended for by counsel for complainant the later clauses of the will would have no force; and, indeed, it is claimed that, the gifts to complainant being absolute, the bequests over to the defendants are void for repugnancy. ' Many cases are cited by counsel for complainant to establish the proposition that these bequests are void for repugnancy to the prior absolute gift to the complainant. If the gifts to complainant are to be treated as absolute, there would be no escape from such conclusion; but we are not prepared so to hold, and we think the language used by the testator does not bring the case within' the rule laid down in the cases cited. If the claim of counsel be correct, we must hold that the latter part of paragraph 4 and all of para.graph 6 are meaningless words, and were used by the testator for no purpose whatever.

The general rule for the interpretation of wills is that it is the duty of courts to give full and complete effect to the testator’s intention, and carry out such intention, if it be lawful. Rock River Paper Mill Co. v. Fisk, 47 Mich. 212; Cummings v. Corey, 58 Id. 494; Eyer v. Beck, 70 Id. 179. Courts are bound to carry out the real design of the testator as derived from a.comparison of all the parts of the will, and the meaning of all words and phrases must, if possible, be harmonized. Bailey v. Bailey, 25 Mich. 185.

In Hamlin v. Express Co., 107 Ill. 443, the rule is stated that “the latter part of the will is to be considered no less than the former part; and, to the extent there is repugnance, the language of the former part is to be read us modified by that of the latter part.”

In Smith v. Bell, 6 Pet. 68, the will declared:

“I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind, and quality soever, after payment of my debts; legacies, and funeral expenses; which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely; the remainder of said estate after her decease to be for the use of the said Jesse Goodwin.”

The court held that this was a bequest to the testator’s wife for life, with remainder to Jesse Goodwin, the son. Chief Justice Marshall, in delivering the opinion, said:

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

See, also. Chase v. Ladd, 153 Mass. 126; Kent v. Morrison, 153 Id. 137.

In Cousino v. Cousino, 86 Mich. 323, a bill was filed for the construction of a will. It appeared that the testator, after providing for the payment of his debts, bequeathed the residue of his estate, real a.nd personal, to his wife; and the will recites: “After her death, or sooner if she chooses to, to be divided among my children or their heirs, share and share alike.” Complainant (the widow) insisted that the absolute title to the property, both real and personal, was by the will vested in her. It was said by this Court:

“We think there can be no ambiguity as to the intent of the testator. The will conveyed only a life-estate to complainant. If he intended to devise the absolute title to complainant, the last clause of the above provision would be meaningless.”

So it may be said of the will in the present case. If the testator intended to give to his wife the entire estate, except these small legacies, the entire sixth clause and the most of the ‘fourth clause of the will would be entirely meaningless. It is apparent that the testator had in mind the comfort of his wife, and intended to' make ample provision for her care and maintenance; but that he intended to give the estate to her absolutely cannot be gathered from reading the whole instrument. We are satisfied that the contention of counsel for defendant Kathleen M. Marshall is correct. By the first paragraph of the will the wife does take the property therein mentioned absolutely, except the fund of $30,000. This $30,000 was to be invested by the executors, and out of the fund she was to be paid $3,000 annually; but by the sixth clause it is evident that, should the wife die before the whole of this $30,000 was paid over, any balance remaining was to' revert to the testator’s estate; and also, by the sixth clause it is provided that the remainder of the property unused at her death should, at her death, revert to his estate, and be disposed of in accordance with the sixth clause of the will. We are led to the conclusion that the wife did not take an absolute vested estate, but that it was the intent of the testator to place these funds in the hands of his executors, to be paid over to the wife from time to time, and at her death, if anything remained, such remainder to be divided among the other legatees, as in the will mentioned. This trust the executors must carry out under the direction of the probate court of Grand Traverse county. The trust is to keep the estate invested in good securities, and to pay the widow from time to time the amounts set apart for her, and such other sums as she shall require for her comfort and convenience, as the probate court may from time to time determine,.

The decree of the court below must be overruled, and a decree entered here in accordance with this opinion. The defendant Kathleen M. Marshall will recover her costs of both courts. There seems to be no controversy but that she is entitled to the present payment of the legacy of $600.

Grant, Montgomery, and Hooker, JJ., concurred with Long, J.

McGrath, C. J.

(dissenting). While I concede that the testator did not intend that the title to the $30,000 mentioned in the first paragraph of the will should immediately vest in his widow, but instead designed that the unexpended balance of such sum should be disposed of as directed in the sixth paragraph, I do not concur in the conclusion that the remainder, after setting apart the $30,000 .and the payment of the legacies provided for in the second and third paragraphs, becomes, upon the death of complainant, subject to the provisions of paragraph 6. The instrument should receive such a construction as will give effect to each and all of its provisions. The fifth paragraph gives to the widow the residue remaining after the segregation of the $30,000 and the payment' of the other legacies, and, it seems to me, contemplates the assignment of that residue to the widow. The instrument nowhere provides that such residue shall remain in the hands of the executors. The sixth paragraph applies to the unexpended balance of the $30,000. The language of that clause refers to the remainder of unpaid legacies, or to such legacies as shall not have been paid over. The latter part of clause 4 simply expresses a preference. The instrument contemplates a fund set apart for the use of the widow, which, in the event of her death, may not be exhausted. Concerning this fund, the testator was solicitous. He prefers it to the legacies to strangers, and intended that it should be set apart, subject to investment and control by the executors, and not to any contingencies that might attend its payment over to the widow. A provision for the payment to the widow of a fixed annuity, and such further sums as were necessary, during her natural life, and for distribution at her death of the residue, would have been very simple; but the conclusion arrived at by the majority gives that effect to the instrument, treats.the setting apart of the 130,000 as without purpose, and eliminates from the instrument, and renders entirely superfluous, the fifth paragraph, which is clear and explicit.


author: Hooker/ J.

text:
    Alonzo B. Bragdon, Prosecuting Attorney, ex rel. Eli Loranger, v. Robert P. Navarre.

      Elections — Ballots.
    Voters finding a ticket upon tlie official ballot are not required to determine whether it is entitled to a place thereon, but may safely rely upon the .action of the officers of the law, who they have a right to suppose have performed their duty.
    Error to Monroe. (Kinne, J.)
    Submitted on briefs June 28, 1894.
    Decided September 27, 1894.

      Quo warranto to test the title of respondent to the office of township treasurer of the township of Berlin. Respondent brings error from judgment of ouster.
    Judgment affirmed.
    The facts are sufficiently stated in the opinion.

      Ira G. Humphrey and John 0. Zabel, for appellant.

      Charles A. Golden and Edward R. Gilday, for relator.
   Hooker/ J.

Upon, an information in the nature of quo warranto, a judgment of ouster from the office of township treasurer was rendered by the circuit court against .the defendant, who brings the case here for review.

Eelator received a majority of the votes, but it is contended that he was not the nominee of any party, that the ticket was not properly certified and not. entitled to a place upon the ballot, and that such tickets should not have .been counted for relator.

The voter finding the ticket upon the ballot cannot be required to determine its regularity at his peril. This might involve a necessary knowledge of facts difficult to ascertain. He may safely rely upon the action of the officers of the law, who he has a right to suppose have done their duty.

The judgment will be affirmed.

The other Justices concurred.


author: Montgomery, J. .Grant, J.

text:
    Henry P. Borgman et al. v. The City of Detroit and Charles K. Trombly, Receiver of Taxes.

      Eminent domain — Waiter of jury-~-Validity of assessment.

    1. It is competent for the owners of land sought to be condemned for street purposes under 3 How. Stat. § 3064a et seq., to waive their constitutional right to have the questions of necessity and compensation determined by a jury of freeholders.
    3. The purpose of the trial provided for by 3 How. Stat. §§ 3064gr— 30647c, is to determine the questions of the public necessity for the improvement and for taking the property sought to be condemned, and the amount of compensation to be awarded therefor. In that proceeding there are two safeguards for the protection of the tax-payer, namely, his representation by the public authorities, and the provision that the judgment is to be entered, upon the verdict of the jury, by the court; and it is not contemplated that these questions shall be open to review in a tax proceeding.
    3. One of the 13 jurors impaneled and sworn in a street-opening case failed to appear on the adjourned day, whereupon counsel representing the city and the owners of the property sought to be condemned stipulated to proceed with the 11 remaining jurors, who found that a public necessity existed for opening the' street, and fixed the amount of compensation to be paid to the property-owners. A bill was filed by several tax-payers, whose lands had been assessed to pay the compensation awarded, to restrain the collection of the tax, their contention being that the condemnation proceedings were void because less than 13 jurors sat in the case, and determined the questions of public necessity and the amount of damages to be awarded. And it is held that the complainants were not prejudiced by the action complained of, and that it did not invalidate the tax levy.

      Appeal from Wayne. (Hosmer, J.)
    Argued February 13, 1894
    Decided October 16, 1894
    Bill to restrain the collection of taxes. Defendants appeal.
    Decree reversed.
    The facts are 'stated in the opinions.

      Alfred Lucking, for complainants.

      John B. Corliss and Thomas T. Leete, Jr., for defendants.
   Montgomery, J.

This is a bill filed by complainants to restrain the collection of a tax imposed by the common council of the city of Detroit for the opening of Noble street between Seventh and Eighth. The chief ground of contention, and the only one which we think calls for discussion, is that the proceedings taken to condemn the lands are void because less than 12 jurors sat in the case, and determined the questions of public necessity and the amount of damages.

The proceedings were had under Act No. 124, Laws of 1883, as amended. This act provides for the impaneling of a jury which shall be composed of 12 freeholders of the city, who are authorized to determine the two questions mentioned. Reliance is also placed upon section 15 of article 15 of the Constitution, which provides that—

“ Private property shall not be taken for public improvements in cities and villages, without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders.”

Twelve jurors were impaneled in the condemnation proceedings, the property-owners being represented, and one of the jurors failed to appear. Thereupon counsel representing the property-owners and the city stipulated to proceed with 11 jurors, who found that a public necessity existed for opening the street, and fixed the amount of compensation to be paid the several owners.

We think the complainants were not prejudiced by this action, and that there has been a substantial compliance with the statute. The statute contemplates a determination by a jury under the direction of the court. There was undoubted jurisdiction in the court to proceed with the condemnation proceedings. That proceeding was for a determination of the questions of necessity and of compensation for the property; and these were simply questions between the city, on the one hand, and the owner of the property it was seeking to condemn, on the other. In that proceeding the city authorities stood, in a sense, as representatives of the tax-payer, and the tax-payer was in court by these representatives. There is no more reason to question the good faith of the authorities in waiving a. juror than there would be to charge collusion in refusing-to call all the witnesses accessible. The two parties who controlled the proceedings doubtless acted in perfect good faith; the city authorities in behalf of all the public interested, and the property-owners in their behalf. It was competent for the owners of the land to waive their constitutional right to a trial by jury. Cooley, Const. Lim. (6th ed.) 214. The judgment of the court followed the verdict of the jury, and was the final determination contemplated by the statute. Section 11 of the act provides:

Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment of confirmation, unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.”

It would be exceedingly dangerous to allow that any stipulation in the case of these proceedings, by the authorities, should avoid the whole subsequent tax levy. The rule is invoked that, to make a valid tax, every step provided by the statute must be strictly pursued. But the purpose of the trial is, as before pointed out, to determine the questions of necessity and of compensation to those interested, and in that proceeding there are two safeguards for the protection of the tax-payer: The one is the representation of the tax-payer by the public authorities, and another the provision that the judgment is to be entered, upon the verdict of the jury, by the court. It is not contemplated that this shall be open to future review in a tax proceeding. The subsequent proceedings are based upon the judgment of confirmation.

We think there was no jurisdictional infirmity in the proceedings to spread the tax, and the decree of the court below is reversed, with costs.

McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.

.Grant, J.

(dissenting). Proceedings were taken by the common council of the defendant city to open Noble street between Seventh and Eighth streets, which resulted in the impaneling of 12 jurors September 28, 1891. The proceedings were then adjourned to November 5, at which time only 11 of said jurors appeared. Thereupon the counsel for the city, and for the property-owners whose property was sought to be condemned, stipulated to pro. ceed with-.11 jurors, who found that a public necessity existed for opening the street, and fixed the amount of compensation to be paid the several owners. Subsequently the common council established an assessment district, upon which they assessed - the damages awarded by_ the jury.' The defendants took proceedings to collect the tax, whereupon the complainants, property-owners within said district, filed this bill to restrain the collection thereof. The principal ground upon which they seek relief, and the only one necessary to notice, is that the condemnation proceedings are void because less that 12 jurors sat in the case, and determined the questions of "public necessity and the amount of damages. Complainants had no notice of the condemnation proceedings, and no knowledge thereof until they were notified to pay the several taxes assessed against them.

The proceedings were had under Act No., 124, Laws of 1883, as amended. The law provides for the impaneling of a jury which shall be composed of 12 freeholders of the municipality, who are authorized to determine the two questions mentioned.

The city of Detroit can obtain land for public streets in but two ways, — by dedication "and by condemnation. The city must proceed in substantial compliance with the provisions of law, and, when want of jurisdiction appears upon the face of the proceedings, the tax assessed is void, and tax-payers may enjoin its collection, and thus prevent clouds upon their titles. If the city of Detroit, and those whose lands are sought to be taken, were the sole parties interested, they undoubtedly might waive a determination by 12 jurors. This power, however, might well be questioned, even if the tax were spread upon the city at large. If the power exists to waive one. juror, it exists to waive any number. It is said that the law department of the city represents the tax-payers who must pay for improvements. This is undoubtedly so, but it does not follow that this department may- use any other instruments than those provided by the law to impose taxation. The logical conclusion of this doctrine would be that a jury might be entirely dispensed with, and the question determined by the court. If the law provided for three commissioners, could the law department and the land-owners whose property is sought to be condemned stipulate to proceed with one or two commissioners? Which does the law contemplate shall bind the tax-payers, the judgment of 12 men, or any less number which the immediate parties to the suit may agree upon? If they should stipulate for 24 jurors instead of 12, would this be binding? Any substantial departure from the methods provided by law for the imposition of taxes is, in my judgment, dangerous, and unsupported by authority. The power to take private property for public improvements in cities and villages without the consent of the owner is dependent upon the prior determination of the compensation therefor by a jury of freeholders. Const, art. 15, § 15. It is also provided in the Constitution that, when private property is taken for the use or benefit of the public, the necessity and compensation must be determined by a jury of 12 freeholders, or by a commission. Article 18, § 2. These two provisions must be construed together. The jury, therefore, must be the constitutional one, of 12. Paul v. City of Detroit, 32 Mich. 108. It has been held by this Court that the power to make local assessments must be strictly construed and followed, and that the mode described constitutes the measure of power. Whitney v. Village of Hudson, 69 Mich. 189; 2 Dill. Mun. Corp. (4th ed.), §§ 763, 811; Cooley, Tax'n (2d ed.), 609, 656, 659. The proceedings to condemn are the foundation for the tax. The reason for the adoption of these constitutional provisions is forcibly stated by Mr. Justice Campbell in Paul v. City of Detroit, supra, at pages 113 and 114, where the authorities will be found cited.

The proceedings are void for the reason stated, and the decree of the court below should be affirmed, with costs.


author: McGrath, O. J.

text:
    Essey May Martin v. Frances V. D. Cook.

      Deed — Construction—Reservations and exceptions.

    1. A father conveyed certain mortgaged lands, and inserted in the deed a clause reserving unto himself and a daughter, naming her, a life lease of the land “ for and during the life of each of them.” After the death of the father, the mortgage was foreclosed by advertisement, and the daughter filed a claim under How. Stat. § 8510, to the surplus arising on the sale, or to the use of such surplus during her natural life. And it is held that the language used excepted from the grant the use and enjoyment of the land during the lives of both father and daughter, as effectually as though that reservation had been for a fixed term of years, extending beyond the life of the father, and that at the father’s death the right to that use for the unexpired portion of the period descended to his heirs.
    2. The following general propositions are summarized from the opinion of Chief Justice McGratE:
    a — A deed should be so construed as to give effect to the intent and design of the parties as manifested by the language used.
    b — The words “reserving” and “excepting” are often .used indiscriminately, and whether a particular provision is an exception or a reservation does not depend upon the use of either term, but upon the nature and effect of the provision itself.
    c — From an examination of the cases cited in the opinion, and the decisions of the courts of this country, generally, upon the question here involved, it will be observed that, while the rule that a reservation in favor of a stranger to the instrument is invalid as a reservation has been adhered to, yet, in order to effectuate the intention of the grantor, such a reservation has uniformly been treated as excepting from the grant the thing reserved; and this holding has not been confined to cases where the reservation had been previously carved out.
    Appeal from Livingston. (Person, J.)
    Argued April 4, 1894.
    Decided October 16,' 1894.
    Petition for the surplus arising on the foreclosure of a mortgage by advertisement, or for the use of the same during the life of the petitioner. Defendant appeals.
    Decree reversed, and record remanded, with directions to enter an order in accordance with the opinion.
    The facts are stated in the opinion.

      D. Shields and John Cummislcey, for petitioner.

      W. P. Van Winkle, for defendant.
   McGrath, O. J.

William H. Martin and wife executed a mortgage upon certain lands to. one Rogers. Afterwards Martin (then a widower) conveyed the lands to one Harrington. The deed contained the following clause:

Reserving unto the said William H. Martin and Essey May Martin a life lease of said above-described premises, for and during the life of each of them.”

Essey May Martin is the daughter of the grantor. Harrington conveyed to C. H., and C. H. to defendant. The deed from C. H. to defendant contains a like clause, and a further clause excepting the mortgage from the warranty, the grantee assuming the same. William Y. D. Cook, as assignee of the Rogers mortgage, foreclosed the same. A surplus was left after paying the mortgage, and Essey May Martin files her petition under How. Stat. § 8510, claiming an interest in said surplus: The court below held that she had an interest, and defined it, and defendant appeals.

It is insisted that the clause referred to' cannot be held to be an exception, and that as a reservation it is void, because made in behalf of a stranger to the deed.

The well-established rule is that a deed should be so construed as to give effect to the intent and design of the parties as manifested by the language used. Shep. Touch. ■ 86; Bridger v. Pierson, 45 N. Y. 601; Iron Co. v. Reymert, 45 Id. 703; Mitcalfe v. Westaway, 17 C. B. (N. S.) 658; Richardson v. Palmer, 38 N. H. 212; Corning v. Nail Factory, 40 N. Y. 209; Hall v. City of Ionia, 38 Mich. 493; Erickson v. Land & Iron Co., 50 Id. 604; Bassett v. Budlong, 77 Id. 338.

In Mitcalfe v. Westaway it is said:

“ All contracts are to be so construed as to give effect to the intention of the parties, even though in some cases this occasions a departure from the strict literal sense of the words used.”

In Bridger v. Pierson, B. had a right of way across A. ’s land, and, in conveying to O., A. reserved the right of way to B. Held, that although, strictly, a reservation in a deed is ineffectual to create a right in any person not a party thereto, yet, there being in fact a right of way existing at the time of the grant, the clause must be construed as an exception from the property conveyed.

In Iion Co. v. Reymert the deed reserved to one Pratt (a stranger to the deed) “the right he has to the ore bed and the right of way to the West Point foundry as now used.” The court say: “A reservation in a deed will not give title to a stranger, but it may operate, when so intended hy the parties, as an exception.”

In Corning v. Nail Factory, A. granted certain land to B. , reserving one acre to O. Held, that as a reservation it would be void, it being in behalf of a stranger to the deed. It was therefore held to be an exception of the acre, although C. took nothing.

In Richardson v. Palmer, land was conveyed, “reserving to the public the use of the-road through said farm; also reserving to the White Mountains Bailroad the roadway for said road, as laid out by the railroad commissioners; and also reserving to myself the damages appraised for said railroad way by the commissioners.” The court say:

“The result at which we arrive, therefore, upon a care- ' ful examination of the deed, and a deliberate consideration of all the circumstances under which it was executed, is that the plaintiff must have intended to sell, and Streeter to purchase, the Guy Young farm, just as it was at the date of the conveyance, subject to the incumbrance of the public highway and of the White Mountains Eailroad, as laid out through it, the plaintiff retaining his claim for the unpaid damages awarded for the laying out of the railroad; and that proper and apt words were used in the deed of conveyance to carry out that intention, without resorting to any doubtful construction, or giving to the grantee any advantage from the imperfection or uncertainty of the phraseology employed; the words expressing a reservation being made to operate, as only under the circumstances they can opérate, as an exception to the general terms of the grant which precedes them.”

In Hall v. City of Ionia, Mr. Justice Campbell, speaking for the Court, says:

“It is manifest from the conveyances of Samuel Dexter that, if it is legally possible for him to secure and retain for himself the right to the water and the right to divert it into an artificial channel, he has done so. It is not at all important to find any technical name for his method, or to spend time in the legal etymology of 'exceptions'’ and ' reservations/ which terms have been used with some carelessness and confusion. The general, and, as we think, the correct, method of construing such provisions as th.ose in question, is to give them the force which the deeds evidently intended they should have.”

Again, in Erickson v. Land & Iron Co. it is said:

“The authorities are not as clear or as consistent as they might be, and it is evident many of'the decisions are based somewhat on local peculiarities and statutes/ With our simple allodial tenures, the rules cannot be precisely similar to those applicable in some of the English estates. Without considering these authorities at,length on points which here are abstract, we need only remark, that, in the absence of legislative changes, we think the common-law rule rejecting reservations repugnant to the grant, and the rules determining what rights are personal and do not run with land, cannot be disregarded; while, on the other hand, the mere form of the deed, and the technical phrases as to exceptions and reservations, should not prevent any lawful provisions in a deed from being carried out according to its unambiguous intention.”

In Bassett v. Budlong, Mr. Justice Champlin says:

“Every deed or contract nin writing is supposed to express the intention of. the parties executing it, and, when the object or purpose of such deed or contract is. called in question in a court of justice, the first inquiry is, what is the intention of the parties, as expressed in the written instrument?”

In Maynard v. Maynard, 4 Edw. Ch. 711, the father deeded to his son, “excepting and reserving tó my three daughters, H., E., and B., a right of living on the said before-mentioned premises, as heretofore, so long as they shall respectively remain single.” Prior to the execution of the deed, the daughters lived with their father, .and were supported with the rest of his family on the farm, and they so remained with the grantee until his death, and were still on the farm. The court gives to the terms “ reservati on ” and “ exception ” their technical signification, .and holds that the language usfed has no force or effect either as an exception or a reservation; nevertheless that—

“The revised statutes having abolished the' common-law mode of conveyance by feoffment with livery of seisin, and converted deeds of bargain and sale and lease and release into grants, and at the same time abrogated the doctrine of implied covenants in conveyances of real estate, and abolished uses and trusts, except as therein expressly authorized, and then having declared that ‘ in the construction of every instrument creating or conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument and is consistent with the rules of law/ the only thing the court has to do is to ascertain the ‘intent/ and, when that is done, to carry it into effect. * * * Looking into the deed in question, it is easy to perceive that the grantor, in making the conveyance of the farm to his son, not only intended to settle the property upon him by way of gift or advancement, but, at the same time, to make a provision out of it for his three daughters. The extent of that provision is another question. But, whatever it may be, the court is bound to give effect to the clause of the deed in which it is contained, and to award to them the benefit of it according to the clear intention of the whole instrument; for, although the clause is not good as a technical exception or reservation, yet it is good as denoting an intention which is not inconsistent with the rules of law.”

The words reserving ” and “ excepting ” are often used indiscriminately, and whether a particular provision is an exception or a reservation does not depend upon the use of either term, but upon the nature and effect of the provision itself. Hurd v. Curtis, 7 Metc. 94; Stockwell v. Couillard, 129 Mass. 231; Kister v. Reeser, 98 Penn. St. 1. In the last case cited, it is said:

These terms are often used in the same sense, the technical distinction being disregarded. Though apt words of reservation be used, they will be construed as an exception if such was the desigfi of the parties. Thus, when a deed in fee of land was made, the grantor ‘ saving and reserving, nevertheless, for his own use, the coal contained in the said piece or parcel/ * * * it was held that the saving clause operated as an exception of the coal;” citing Whitaker v. Brown, 46 Penn. St. 197.

From an examination of the cases cited, and the decisions of the courts of this country, generally, upon the question here involved, it will be observed that, while the rule that a reservation in favor of a stranger to the instrument is invalid as a reservation has been adhered to, yet, in order to effectuate the intention of the grantor, such a reservation has uniformly been treated as excepting from the grant the thing reserved. Nor has this holding been confined to cases where the reservation had been previously carved out. It has been repeatedly held that a conveyance of land, reserving or excepting the dower interest of a stranger to the deed, was a good exception. Canedy v. Marcy, 13 Gray, 373; Meserve v. Meserve, 19 N. H. 240; Crosby v. Montgomery, 38 Vt. 238; Swick v. Sears, 1 Hill, 17.

It was held in Marshall v. Trumbull, 28 Conn. 183, that an interest retained by a grantor ont of the body of the thing granted is rather an exception from the grant than a reservation.

In Murphy v. Merritt, 3 Jones (N. C.), 37, under a deed of gift of slaves, “'reserving unto myself and to my wife, M., the use during the term of our natural lives,” it-was held that the ulterior donee was not entitled to the property until both these lives were extinct.

In Logan v. Caldwell, 23 Mo. 372, Logan conveyed a parcel of land to Caldwell in fee, with the following clause: “With this exception: that said John Logan reserves the use of said tract of land and farm thereon, or the rents and profits arising from it, during his life and the life of his wife.” Logan's- wife survived him. Held, that the language did not create any estate in the wife; that the entry of the defendant under the deed impliedly raised on his part a promise to pay for the use and occupation of the land; and that the promise was transmissible to Logan's personal representatives.

It will be observed, however, that in nearly all of the cases referred to the title of the party in whose favor the exception was made, or who claimed the excepted thing, did not depend upon the instrument containing the exception. In Keeler v. Wood, 30 Vt. 242, Elijah Wood died, intestate, seised of certain lands. Elmer E. Wood, a son, conveyed by warranty deed a portion to one Lawrence, whose wife was a daughter of Elijah Wood, with a reservation in favor of “our mother, Mary Wood.” No controversy arose until after the death.of Mary Wood, when, in a suit against the grantor upon the covenant of warranty, it was insisted that the reservation was of the fee, but the court held that it was of but a life estate; so that the question here involved was. not reached in that case.

The language here used must, we think, be treated as excepting from the grant the use and enjoyment of the land conveyed, during the lives of both father and daughter, as effectually as though that reservation had been for a fixed term of years, extending beyond the life of the father, and, at the death of the father, the right to that use for the unexpired portion of the period must be held to have descended to the heirs of William H. Martin. This construction gives to the grantee the estate which both parties to the instrument evidently intended that he should take.

It does not appear from the record that petitioner is the sole heir. The record will therefore be remanded, with directions to set aside the order heretofore entered, for the proper determination of that question, and the entry of an order, after such hearing, in accordance with this opinion. No costs will be allowed.

The other Justices concurred.


author: Montgomery, J.

text:
    Robert M. Steel v. John H. DeMay et al.

      Landlord and tenant — Sale of leased premises — Assignment of lease — Notice—Bona fide purchaser.

    A lessor, prior to the lessees’ taking possession of the leased premises, assigned and delivered the leases to a creditor as security for his claim. Neither the leases nor the assignment were ever recorded. After the tenants had entered into possession, the lessor conveyed the leased premises to his wife by warranty deed. In a suit brought by the assignee to enforce his alleged equitable claim to the rent, the wife claimed to have purchased without notice of complainant’s rights, while the complainant claimed that, the premises being in the possession of the lessees, and the leases in the custody of the complainant, it was the duty of the wife to make inquiry as to the terms of the leases, and as to the possession of the same, before purchasing, as the leases were the only evidence of the grantor’s title to the rents reserved, and of his right to collect such rents, and that, in the absence of such inquiry,she was chargeable with notice of all the facts which she would have learned upon making the inquiry. And it is held that, .while the possession of the lessees was notice of their rights, it was not notice that the title of the lessor had been incumbered by the assignment of the leases reserving rent to himself.
    Appeal from Gratiot. (Daboll, J.)
    Argued April 11, 1894.
    Decided October 16, 1894.
    Bill to determine the rights of complainant under an assignment of certain leases as security. Defendant Ella DeMay appeals.
    Decree reversed, and one entered in this Court in favor of appellant.
    The facts are stated in the opinion.

      Stone & Salter, for complainant.

      H. E. & E. L. Walbridge (H. WaTbridge, of counsel), for appellant.
   Montgomery, J.

The defendants John H. De May and Ella De May are husband and wife. In 1889, John H. built a brick block, consisting of two store buildings, in the village of Ithaca. He purchased of the complainant a strip of land Z\ feet wide, and one-half of a brick wall thereon, for the agreed price of $688. De May, having .leased the stores to defendants Ludwig and Netzorg, gave his notes for the amount of the purchase price of the 31-feet of ground, and assigned the leases to complainant as security. Neither the leases nor the assignment were recorded in the office of the register of deeds. Defendant Ella De May purchased the buildings of her husband, and claims to have bought without notice of complainant’s rights, and to have paid the purchase price of the property by assuming an incumbrance of $5,000, and discharging debts of her husband to the amount of $6,500, and some, accumulations of interest. The contest is between complainant and Ella De May, Ludwig and Netzorg having been made parties in order that they may be protected in making the payments decreed by the court. The case presents two questions, one of law and one of fact.

1. It is contended by complainant that it was not necr essary to the protection of his rights that the assignment of the leases be recorded; that, the premises being in the possession of the lessees, and the leases in the custody of the complainant, it was the duty of the defendant Ella De May to make inquiry as to the terms of the leases, and as, to the possession of the instruments, before purchasing, as the leases were the only evidence of the grantor’s title to the rents reserved, and of his right to collect such rents from the tenants in possession; and that, in the absence of such inquiry, she (Mrs. De May) would be chargeable with notice of all the facts which she would have learned upon making the inquiry. We think that, while such possession of the lessees would be notice of their rights, it would not be notice that the title of De May had been incumbered by the assignment of the leases reserving rent to himself.

2. The question of fact is somewhat difficult of solution. There are some circumstances tending to show that De May had a purpose of defeating his creditors in making a transfer to his wife, and that the alleged indebtedness from him to his wife was merely colorable. The defendant’s theory is that when De May engaged in business he was assisted by Mrs. De May’s father, on the understanding that the title to the property should constantly remain in Mrs. De May, but that he subsequently induced her to ■deed certain property to him on the agreement that he would buy her a lot, and build a house thereon worth $2,800, and that he also induced her to make him an assignment of her interest in the drug firm of J. B. Crawford & Co., of which she was a member, upon his agreement to repay. All the direct testimony in the case tends to support this claim, and, upon a careful examination of the testimony, we do not find warrant for disregarding these proofs. Our conclusions cannot rest upon grounds of mere suspicion, but should be supported by testimony, which we fail to find supporting complainant’s theory.

The decree of the court below will be reversed, and a decree entered in this Court in favor of the defendant Ella De May.

The other Justices concurred.


author: McGrath, 0. J.

text:
    Noble Brady v. The Detroit Steel & Spring Company.

      Nuisance — Discharge of fuel oil into public sewer.

    1. The percolation of deleterious matter, from the premises of the party who suffers it, through the soil, upon the lands of an adjacent owner, to the injury of the latter, is an actionable nuisance.
    2. Defendant kept upon its premises, for use, fuel oil. Plaintiff operated a bakery 500 feet distant, and sues for damages occasioned to his business by the leakage of the oil upon defendant’s premises, its flow through the soil into a common sewer, the escape of the gases through a manhole in the immediate vicinity of the bakery, affecting the .atmosphere in the neighborhood, and through the sewer connections into and upon plaintiff’s premises, injuring the products manufactured by him. The city ordinance prohibited the deposit of any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer. And it is held that, in view of the ordinance, it cannot be said that the sewer was constructed by the city to carry away the oil, or that such a use was invited, or was even permissive; that the nuisance which the ordinance aims to prevent does not depend upon the intent of the party causing it, and the fact that the deposit of the oil was negligent, or even accidental, did not make such use of the sewer lawful.
    Error to Wayne. (Reilly, J.)
    Argued April 27, 1894.
    Decided October 16, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Wells, Angelí, Boynton & McMillan, for appellant.

      William Stacey, for plaintiff.
   McGrath, 0. J.

Defendant kept upon its premises, for use, fuel oil. Plaintiff operated a bakery some 500 feet distant, and sues for damages occasioned to his business by the leakage of the oil upon defendant’s premises, its flow through the soil into a common sewer, the escape of the gases through a manhole in the immediate vicinity of plaintiff’s bakery, affecting the atmosphere in the neighborhood, and through the sewer connections into and upon plaintiff’s premises, injuring the products manufactured by plaintiff. The proofs clearly tended to show the presence of the fuel'oil gases in the bread and other products of plaintiff’s bakery, and the origin of the gases was traced through the sewer to the leakage upon defendant’s premises, and the leakage was not denied.

■ The defendant contends that it is not liable to the plaintiff for the consequences of the accidental escape of the crude oil into the public sewer.

“ 1. That, unless prohibited by statute or ordinance, the discharge of noxious substances into public sewers is not unlawful.
“2. That no liability can arise out of the general duty of the defendant to so use its own property as not to do harm to others, for the reason that the communication between defendant’s premises and plaintiff’s premises was established by public authority, and became an independent acting agent, so that the injury was not the proximate result of defendant’s acts or omissions.”

The city ordinance on the subject is as follows:

“No distiller, dyer, machinist, manufacturer, or other person shall, himself or by another, discharge out of or from any stillhouse, dyehouse, workshop, factory, machine shop, dwelling-house, kitchen, or other building, any foul or nauseous liquid, water, or other substance into or upon any highway, street, lane, alley, public space or square, or into any adjacent lot or ground, or deposit or allow to be deposited any refuse, drippings, or nauseous liquid or other substance from distributing pipes or gas conductors into any sewer, receiving ba_sin, gutter, or other place within the city, or force or discharge into any public or private sewer or drain any steam, vapor, or gas.
“No person or persons shall permit on his, her, or their premises within the boundaries of said city, or within one-half mile therefrom, of which he or she or they may be the occupant or occupants, agent or agents, having charge thereof, a soap or candle factory, or the exercise of any other unwholesome or offensive trade or calling, or suffer any building, sewer, or other thing whatsoever to remain on said premises until, in any manner, the same shall become offensive, hurtful, dangerous, or unwholesome to the neighborhood or travelers.”

Whether the defendant would or would not be liable under this ordinance is not material. In view of the bylaw, it cannot be said that the sewer was constructed by the city to carry away this substance, or that such a use was invited, or was even permissive. The nuisance which the ordinance aims to prevent does not depend upon the intent of the party causing it. The fact that the deposit was negligent, or even accidental, did not make the use of the sewer as a conduit lawful. It is well settled that the percolation of deleterious matter, from the premises of the party who suffers it, through the soil, upon the lands of •an adjacent owner, to the injury of the latter, is an actionable nuisance. Upjohn v. Board of Health, 46 Mich. 542; Wood, Nuis. (3d ed.) § 115; Kinnaird v. Oil Co., 89 Ky. 468; Hauck v. Pipe-Line Co., 153 Penn. St. 366. In the Upjohn case the township had extended a burial ground. The use was a necessary public use, and the exclusion of the corrupting influences was impracticable, but the general rule was recognized. Mr, Justice Cooley in that case says:

The liability does not depend upon negligence, but the reasonable precaution which the law requires is effectually to exclude the filth from the neighbor’s land. Ball v. Nye, 99 Mass. 582; Hodgkinson v. Ennor, 4 Best & S. 229. But all the cases in which this doctrine has been applied were cases in which, consistent with the proper use of the premises, the exclusion was practicable.”

Bee, also, Cahill v. Eastman, 18 Minn. 324.

In the present case it is not the contamination of water veins that is complained of, but the percolation through the soil, into the sewer, of a foreign fluid, the gases from ■which are pernicious, and the retention of which is practicable. The sewer must be regarded as a condition, rather than as a cause, — as much so as are the' ordinary prevailing winds or currents of air,, by means of which noxious odors are carried.

The judgment is affirmed.

The other Justices concurred.