author: • Moore, C. J.

text:
    SCOTT v. SCOTT.
    1. Wills — Interpretation.
    It is a cardinal principle, in the interpretation of wills, to carry out the intention of the testator, if it is lawful, and if it can he discovered, and the whole will is to he taken together, and is to he so construed as to give effect, ■if it he possible, to the whole.
    2. Same — Sale of Devised Realty — Revocation—Intent.
    Where testator devised his land to his children subject to a life estate in the wife, who was also given the balance of the estate absolutely, and after his death a deed was ■ discovered conveying a farm to third parties, the contention of the wife that the sale of the farm operated to revoke the will pro tanto, and that the proceeds must pass to her as the residuary legatee, cannot he sustained; the will showing clearly that testator had no intention of excluding his children from all interest in his property.
    On right of one claiming through heir or devisee to protection against unrecorded conveyance by ancestor or his personal representative, see note in 34 D. R. A. (N. S.) 328.
    Appeal from Monroe; Root (Jesse H.), J.
    Submitted. April 7, 1920.
    (Docket No. 3.)
    Decided June 7, 1920.
    Bill by Burl O. Scott and others against Mary E. Scott and others for the construction of a will. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      A. A. Slaybaugh, Guy W. Moore, and Hal P. Wilson, for plaintiffs.

      Willis Baldwin, for defendants.
   • Moore, C. J.

Thomas K. Scott died on the 9th day of December, 1918, leaving as his heirs at law, Mary E. Scott, his wife, and three grown children, Burl O. Scott, a son, and Cora May Hickey and Rosa Della Young, daughters. Mary E. Scott was the second wife of Thomas K. Scott and not the mother of any of his children. She had been his ’wife about 18 years. On the 8th day of November, 1915, Thomas K. Scott made a will, the material portions of which are as follows:

“Second: I give and bequeath to Mary E. Scott, my wife, all my personal property of whatsoever kind that I may possess at the time of my death or any that may come to my estate after my demise. (Then follows an absolute devise to her of a house and lot in the village of Carleton.)
“Also to Mary E. Scott, my wife, I devise that she shall have the use and control of all my real estate her natural lifetime. She shall keep it insured and all taxes paid in full in case of the death of myself before that of my wife this is to be in force, but in case of my wife’s death before that of myself, to be null and void. (Then follows a description of the real estate devised.)
“I bequeath to my children, Cora May Hickey, Rosa Della Young, daughters, and Burl O. Scott, my son, the real estate as above described, after the death of Mary E. Scott, my wife, they shall each have equal share and share alike.” * * *

On December 14, 1918, after the death of Thomas K. Scott, which occurred on December 9th, Burl O. Scott, one of the plaintiffs, with the widow, Mary E. Scott, went to the safety deposit vault where the deceased had a private box, and among other personal papers of his found a warranty deed from Thomas K. Scott and Mary E. Scott to James Kiley and wife conveying the farm land mentioned in the will, said deed bearing date December 6, 1918.

At the trial there was. introduced in evidence by defendants a mortgage in which Thomas K. Scott was designated as party of the second part covering the farm and bearing date December 6, 1918, signed by said James Kiley and wife as parties of the first part, which mortgage was in the possession of Mr. Kiley, also a receipt for $500 from Thomas K. Scott to James Kiley, and a mortgage note, bearing the same date, signed by James M. Kiley and wife, payable to Thomas K. Scott or order, which note was also retained by James M. Kiley and wife.

Plaintiffs in the bill filed in this case, in addition to other relief, asked the court to construe the will and by its decree declare what the rights and interests of plaintiffs and defendants respectively are in said farm property and in the estate of said Thomas K. Scott, deceased. From a decree in favor of the plaintiffs, the widow of Mr. Scott appeals.

It is the claim of the widow that the sale of the farm converted it into personalty and operated to revoke the will pro tanto; and that the proceeds of such sale must pass to her as the residuary legatee as personal property, citing In re Sprague’s Estate, 125 Mich. 357, and other authorities.

We think a construction of the will will determine the rights of the parties. It is well established:

“The rule that The cardinal principle of interpretation of wills is to carry out the intention of the testator, if it is lawful, and if it can be discovered,’ and 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,’ is universal, and cases are of little value to the courts as precedents unless they substantially agree in their facts with the case under consideration.” Thurber v. Battey, 105 Mich. 718.

See, also, Tewksbury v. French, 44 Mich. 100; Ireland v. Parmeter, 48 Mich. 631; Tracy v. Murray; 49 Mich. 35; Cummings v. Corey, 58 Mich. 494; Gregory v. Tompkins, 132 Mich. 205; Foster v. Stevens, 146 Mich. 131, and Stender v. Stender, 181 Mich. 648. The last-named case was in many respects like the one before us.

A reading of Mr. Scott’s will shows clearly that he had no idea of willing all of his property to his widow to the exclusion of his three children from any interest therein and the record does not show that he ever changed his mind in that regard.

The decree is affirmed, with costs to the plaintiffs.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    AMAN v. CARPENTER.
    1. Principal and Surety — Attachment—Clerical Error in Bond —Release op Surety.
    A clerical mistake in a bond filed to obtain tbe release of property from attachment will not release the surety, who, as attorney for the defendant in attachment, either drew up the bond or had it done under his direction.
    2. Same — Substitution op Administrator for- Original Depend-ant — Release of Surety — Statutes.
    Where defendant in attachment died pending the action,, and the administrator of his estate was substituted before judgment was rendered, there was not such a change of parties as to release the surety on the bond given to release the property from attachment; 8 Comp. Laws 1915, § 12385, controlling.
    Case-made from Kent; Brtíwn (William B.), J.
    Submitted April 22, 1920.
    (Docket No. 60.)
    Decided June 7, 1920.
    Assumpsit by Jacob Aman against Frank L. Carpenter as surety upon a statutory bond. Judgment for plaintiff on a directed verdict. Defendant appeals.
    Affirmed.

      Frank L. Carpenter, in pro. per.

      Fred M. Raymond, for appellee.
   Moore, C. J.

This is an action brought against the ■defendant as surety upon a bond filed to obtain the release from attachment of a quantity of lumber and slabs which had been attached under the log-lien law by Jacob Aman as plaintiff to recover a balance claimed to be due him for labor from Rollin H. Pelton as defendant. Mr. Carpenter was the attorney for Mr. Pelton in that suit. While the suit of Mr. Aman against Mr. Pelton was pending Mr. Pelton died. His death was suggested of record and Henry' Thurkittle as administrator with the will annexed of the estate of Mr. Pelton was substituted as defendant. The case proceeded to trial, a verdict was rendered in favor of the plaintiff in the sum of $603.39. Costs were duly taxed. The judgment has never been paid. At the conclusion of the testimony in the instant case it was agreed that it was proper for the court to direct a verdict in favor of one or the other of the parties, and the court directed a verdict for plaintiff. Judgment was entered in favor of the plaintiff in the sum of $823.75. The case is brought here by writ of error.

The defendant’s assignments of error are as follows:

“(1) The court erred in overruling appellant’s objection to the introduction of any evidence in the case, because the declaration states no cause of action.
“(2) The court erred in overruling appellant’s objection to the introduction in evidence of the judgment record in the suit of Aman v. Thurkittle, on the ground that it did not show a valid judgment.
“(3) The court erred in overruling appellant’s objection, and submitting in evidence plaintiff’s Exhibit L, being defendant’s answer to a petition of the administrator of Pelton’s estate, and filed in the probate court of the county of Ottawa.
“(4) The court erred in overruling appellant’s objection to the following questions: ‘How many piles of lumber were there left at the time of Pelton’s. death?’
“(5) The court erred in directing a verdict for the plaintiff, and in refusing to direct a verdict for the defendant.
“(6) The court erred in refusing each of the seven several requests of the defendant, to charge the jury.
“(7) The court erred in entering a judgment upon the verdict for plaintiff, and substance and matter of form.”

We shall not undertake to discuss each of these assignments of error.

The concluding portion of the bond sued upon reads:

“And whereas the above bounden Rollin Pelton is the owner of said last described property, and is desirous of obtaining the release thereof from the said attachment, according to the statute in such case made and provided; Now the condition of this obligation is such that if the said Rollin Pelton shall pay or cause to be paid all damages, costs, charges, disbursements and expenses that may be recovered by the said Rollin Pelton against the said Jacob Aman, that may be found to be a lien upon or against the property described in the said writ of attachment, then this obligation is to be void; otherwise to remain in full force and virtue.”

Great stress is placed by the defendant upon the use of the words, “that may be recovered by the said Rollin Pelton against the said Jacob Aman.” This bond was drawn by the defendant acting as the attorney for Mr. Pelton or under his direction for the purpose of securing the release qf the lumber that had been attached, and it accomplished that purpose.

It would be a travesty upon justice if under such circumstances a surety could be released for what, to state it most charitably, was a clerical error. See In re Friedrich, 113 Mich. 468.

The most serious contention of defendant is that there had been a change of parties before the judgment was rendered; that Mr. Pelton, for whom Mr. Carpenter was surety, died and Mr. Thurkittle as administrator was substituted in his place for whom Mr. Carpenter never obligated himself, and a breach of the bond was therefore impossible. We think section 12385, 3 Comp. Laws 1915, is a complete answer to this contention.

We have considered all of the assignments of error. None of the defenses urged has merit.

The judgment is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GILLBERG v. GILLBERG.
    1. Divorce — Evidence — Pleadings in Former Suits — Admissibility.
    In a suit for divorce by a wife, tbe pleadings in former divorce suits between tbe plaintiff and ber former bus-band and defendant and bis former wife are not competent evidence of tbe i§sue involved in tbis suit.
    2. Same — Extreme Cruelty — Evidence—Sufficiency.
    Evidence held, sufficient to justify granting plaintiff a divorce on tbe ground of extreme cruelty.
    3. Same — Alimony.
    Testimony as to defendant’s income and tbe value of bis property, held, not to warrant tbis court in modifying an award of $17,000 to plaintiff and $10 per week for tbe support of a minor child, in addition to tbe costs and a solicitor’s fee of $150.

      Appeal from Wayne; Davis (Frank D. M.), J., presiding.
    Submitted April 8, 1920.
    (Docket No. 22.)
    Decided June 7, 1920.
    Bill by Vouwie B. Gillberg against Gustave S. Gill-berg for a divorce. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Dohany & Dohany, for plaintiff.

      Edward H. Kennedy, for defendant.
   Moore, C. J.

This is a divorce proceeding. The case was heard in open court. The trial judge expressed himself in part as follows:

“I find from the testimony in this case that it appears beyond all question of dispute, even by the admissions of the defendant, that he was guilty of cruelty to the plaintiff in this. case. In all my experience of 45 years at the bar and upon the bench, and being acquainted quite fully with the character of many of the nationalities that have become American citizens, I never yet, in all my experience have seen a case where a man was possessed of such a desire to practice cruelty upon a wife. * * A woman about to become a mother, in the eyes of the husband — even in the eyes of the South Sea Islander — is treated with respect, and it remains for a man who professes to be a civilized American to practice that cruelty this man has practiced upon this woman. * * *
“Now as to the property matters, this woman has not lived with him many years and has not helped him to acquire all the property he has, but he has brought this child into the world, he has married this woman, he has placed her in about as bad a condition as a man knows how to place a woman, has broken her pride, humiliated her; he has bruised her and abused her, and- he ought to pay. her a fair amount in lieu of dower. I think the statute has been in force a good many years which holds she should have dower the same as though he were dead. Now in lieu of dower, it ought to be a reasonable sum. I am inclined to think plaintiff’s counsel has asked for a rather high amount in view of all the circumstances. On the other hand, the amount admitted by the defendant’s counsel in case divorce is granted is rather low. I am inclined to fix the sum at $17,000 this man should pay, and I think if he pays $10 per week to the support of that child, it is a small amount, a reasonable amount, and I shall leave that matter open for the further order of the court in case the necessities require a larger amount. He is. a man possessed of quite a large amount of property, a man physically and mentally equipped for the battle of life, and can take care of the child properly, and capable of earning a good income, and the cost of the case will be taxed against the defendant, including solicitor’s fee of $150.”

A decree was entered accordingly. The case is brought here by appeal.

The record discloses the following,:

“Mr. Pokorny: I wish to offer in evidence circuit court file 55,039, case of Duncan Malcolm Patton v. Vouwie B. Patton; also chancery court file number 55,038, case of Gertrude Gillberg v. Gustave S. Gill-berg, which seem to have been filed almost simultaneously, not far apart.
“Mr. Charles E. Dohany: I have no objection if they are of any value to your honor.
“The Court: What is there about it any more than the fact they were divorced?
“Mr. Pokorny: It sets up the relations of the parties prior to their marriage. Like to have the record show when these parties first met both of them were married and had families, and as a result of that, you might say, immoral meeting, it resulted in the breaking up of two homes and brought about the marriage.
“The Court: Can he question that, inasmuch as he is one of the guilty parties?
“Mr. Pokorny: Only in so far, your honor, as it might affect the division of the property, if the court, reaches that conclusion.
“The Court: The immorality of either one, if known to the other one before marriage, of course, can’t affect the rights as to divorce.
“Mr. PoJcorny: We don’t raise that question here. The pleadings do show there was a reconciliation since this bill was filed and we stand on that proposition.”

Much of the brief of appellant is devoted to a discussion of the averments contained in the pleadings in those two cases. We cannot see how these pleadings can in any view of the case be competent evidence of the issues involved here. Appellant’s counsel have a brief of 23 printed pages. We have read it with care and do not find in it anywhere a statement that plaintiff has failed to show upon the merits a cause for divorce. We shall quote but little of the testimony.

The plaintiff testified in part, when speaking of their life on defendant’s yacht:

“As soon as Jack left the boat, Gillberg got me down in the cabin and closed the door and said he was going to finish me. I wore earrings at that time, fastened through the ears. He knocked me up against the side of the cabin and knocked my head back and forth, tried to pull my earring out; pulled in such a way my ear bled; I was dressed in white and I was all covered with blood. The blood ran down- my garments. While he was doing that, he wanted me to get down on my knees to him. He called me names. He asked me to get down on my knees three or four times. He called me a God damn whore. Said I was a sport. He called me that many times, in the presence of my daughter. He called me names of that character in the presence of my thirteen-year-old daughter, so many times I couldn’t tell. That little girl is in school. She is in the seventh grade; graduates this year. He called me those names in the presence of Jack. When he pulled this earring and caused my ear to bleed, he otherwise injured me; just beat me and knocked me over.”

In another part of her testimony when she was speaking of a visit to a saloon she testified:

“He remained in this barroom until almost midnight. I asked a waiter to go in and ask him to come back, it was getting so late, I had to get across the bridge before the bridge closed; at midnight the bridge would Jbe closed and I had no place to go. I had no home in Detroit then; no means with which to provide myself with a room. He did not come out when the waiter went after him. I finally had to go in after him. I got him. When I got him, he was very much intoxicated. I got him out of the building. Our automobile was standing, then, about a block away from Mesta’s place, on the boulevard across Jefferson. We got to the automobile; he said'he would take me across. I got in the rear seat. He also got in the rear seat. As soon as he got into the rear seat he took hold of my neck, started to pull my head down, said he was going to break my neck for me because I came in and got him there. He took hold with both hands; pulled me down to the bottom of the car. He called me vile names. Swore at me. At that time, Mr. Gillberg was in the Swedish massage business. He worked at it himself when he was there. He is a very muscular man. He don’t really know his strength; don’t know how hard he did. He got me in the back of my neck, tried to pull my neck over. He wasn’t trying to get me to do anything — just—he was so intoxicated he was mean. He told me then I should get out of the machine, and finally he did get me out and drove away and left me standing, a little after midnight then. I was standing up on the sidewalk when he got in the front seat and drove away. I was pregnant then, two months. He knew it. The effect of this assault on me was to make me very, very nervous.”

She gave much other testimony of similar treatment.

Defendant was a witness and gave his version in relation to the occurrences mentioned in the testimony of the plaintiff. Much of his testimony served to confirm the testimony of the plaintiff. His testimony alone makes a clear case of cruel treatment on his part that would justify granting the plaintiff a divorce.

The only other question having merit is: Did the court allow too large an amount as alimony. The plaintiff claims she is a physical wreck caused by the cruel treatment of the defendant. The parties are not agreed as to the income of the defendant. Plaintiff worked for a time in the office of the defendant in the Penobscot building and testified his income was $1,000 a month. The defendant put an accountant on the stand who testified the books of defendant showed a net profit from defendant’s business in 1917 of $2,326.35, and for 1918 of $3,278.28, while the defendant claims there was a loss of $4,000 in 1917, and a loss of $3,000-in 1918. Defendant admitted receipts of $243 a month from rents of real estate owned by him.

The record shows defendant owns real estate at the comer of Lafayette and Eighth street in Detroit, on which there are six brick veneered buildings.

Plaintiff gave testimony tending to show the value of this real estate was $60,000. Defendant’s witnesses placed the value of the land alone at $35,000, but put no value upon the buildings. There is an incumbrance of $12,000 on this real estate.

Plaintiff claims defendant owned oil stock, Canadian real estate, Mexican timber land, an automobile worth $1,600, and that he has an interest in his father’s estate. We think it problematical whether this property last named, aside from the automobile, is so certainly shown to have value that it should enter into* the basis for fixing alimony. Taking all the testimony, however, bearing upon the questions of defendant’s income and the value of his property, we are not constrained to modify the amount .awarded as alimony. See Kiplinger v. Kiplinger, 172 Mich. 552; Rieden v. Rieden, 206 Mich. 550; Tiffin v. Tiffin, 209 Mich. 232.

The decree is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    SUPPLE v. WHEELER. BARLEY v. SAME.
    1. Frauds, Statute of — Sale of Real Estate — Deed in Escrow.
    Under 3 Comp. Laws 1915, § 11977, requiring contracts for the sale of lands to be in writing, a deed delivered in escrow is sufficient to meet the provisions of the statute.
    2. Escrows — Deeds—Delivery—Evidence—Sufficiency.
    Evidence that a deed to land was prepared, signed, and delivered to grantors’ attorney to await final action by the parties in completing the transaction, held, insufficient to show a delivery in escrow.
    Autborities discussing the question of delivery of deed in escrow as satisfying the statute of frauds are collated in a note in 43 L. R. A. (N. S.) 390.
    Appeal from Kalamazoo; Collingwood (Charles B.), J., presiding.
    Submitted April 23, 1920.
    (Docket No. 88.)
    Decided June 7, 1920.
    Bill by Frances H. Supple against Kate Henderson Wheeler and others for the cancellation of a deed. Albert C. Barley was permitted to intervene and file a bill claiming under a prior deed which had been destroyed. From a decree dismissing the bills, plaintiff Barley appeals.
    Affirmed.

      Thomas J. Cavanaugh, for plaintiff Barley.

      Alfred J. Mills, for defendant Wheeler.

      Mason & Sharpe, for other defendants.
   Moore, C. J.

In April, 1919, Frances H. Supple and Kate Henderson Wheeler owned lots 5 and 6 of the revised plat of the Henderson plat in the city of Kalamazoo. Frances H. Supple owned a three-fifths interest. Kate Henderson Wheeler owned a two-fifths interest. The property came to them partly by inheritance, and partly by purchase of the interest of other heirs. It was heavily mortgaged and there were outstanding taxes and tax titles against it. They desired to sell the property and listed it with Sanford A. Wiltsey, a real estate agent doing business at the city of Kalamazoo, but did not give him written authority to sell. In the latter part of April, 1919, the property was supposed to be sold to Albert C. Barley for the consideration named of $15,000. A deed was made in which Mr. Barley was named as grantee. This deed was delivered to Clare H. Stearns to be by him delivered if conditions arose about which the parties are not agreed. Harry C. Howard, represented Mr. Barley in the transaction. The abstract of title was procured, re-certified and delivered to Mr. Howard. It showed delinquent taxes and a mortgage concerning which there were negotiations. The deed was submitted to Mr. Howard and he reported to Mr. Stearns that it was all right and that there remained only the mortgage and the taxes to take care of.

On May 5, 1919, the deed to Mr. Barley was destroyed and one was made to the defendant Hopper who was to pay a mortgage of $7,500 which was upon the property and the unpaid installments of a paving tax, and other considerations, so that Mrs. Supple and Mrs. Wheeler would realize about $1,200 more than, would be realized from Mr. Barley. Later Mrs. Supple filed this bill in the circuit court, in chancery, praying, among other things, that the Hopper deed might be recalled. Mr. Hopper and his wife answered this bill of complaint alleging, among other things, that they were purchasers in good faith for a valuable consideration and asserting that the plaintiff had no equitable grounds for relief. Albert C. Barley filed a petition accompanied by a bill of complaint praying for leave to intervene, which was granted. Mr. and Mrs. Hopper answered this bill of complaint as did Mrs. Wheeler. The issues came to a hearing in open court. The circuit judge at the close of the testimony expressed himself in part as follows:

“There was no written contract. There was no payment. The question simply is this: When this deed was delivered to Mr. Stearns, what was the intention of the parties? It may not be said that there was a substantial agreement in the evidence, not in the testimony but in the competent, material evidence and it is the finding of this court that at the time the deed was made there was no meeting of the minds of the parties. That the deed was placed with Mr. Stearns to be delivered to' Mr. Barley if certain conditions were complied with; that either party or either of the parties had a right to withdraw; that Mr. Barley could have withdrawn; that Mrs. Supple or Mrs. Wheeler could have withdrawn. They chose to withdraw and destroy the deed.”

Efe dismissed both bills of complaint. It is from this decree that this appeal is taken.

Counsel are agreed that “the only question involved is whether the delivery of the Barley deed to Attorney Stearns under the circumstances is to be regarded as delivery in escrow.” It is the claim of the appellant that a complete agreement had been reached between the grantors and the grantee named in the Barley deed, that it had been delivered to Mr. Stearns in escrow to be delivered to Mr. Barley when he did certain things which had been agreed upon and which he was able, willing and ready to do. The appellees insist that no delivery in escrow was proven because of two important elements of fact which were established by the proofs, namely:

1. The deed in question remained in the possession and under the control of the grantors, Mrs. Supple and Mrs. Wheeler.

2. No actual agreement of sale on the one hand and of purchase on the other had been made between the parties to the Barley deed.

The appellant’s contention is stated in the brief of counsel as follows:

“In any event it must clearly appear from the facts and' circumstances that a deed was made .conveying the property to Barley; that it was delivered to Stearns in escrow to be delivered to Barley when he paid the $15,000; that Mr. Barley was ready, willing and offered to pay the $15,000 as soon as the abstract was re-certified and the title passed and the deed examined by his attorney; that there were no delays and that on the 5th at eleven o’clock, the time agreed, nothing remained to be done but deliver the deed and receive the money. Under these facts, What is the legal situation?”

Appellees insist these facts and circumstances were not proven, while it is insisted by apnellant that they were.

Counsel for appellant and appellees call attention to section 11977, 3 Comoiled Laws 1915, which reads:

“Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him law-full'authorized by writing,”

—and are agreed that if the delivery to Mr. Stearns was a delivery in escrow then the provisions of this statute have been met. They also cite the case of Thatcher v. St. Andrews Church, 37 Mich. 264, quoting therefrom, at some length.

The law in relation to deeds delivered in escrow is not a new subject in this State; some of the cases are Thatcher v. St. Andrews Church, supra; Stevens v. Castel, 63 Mich. 117; Roup v. Roup, 136 Mich. 385; Wisconsin, etc., R. Co. v. McKenna, 139 Mich. 43; Miller v. Beardslee, 175 Mich. 414; Loomis v. Loomis, 178 Mich. 221.

The decisive questions are questions of fact. Testi.mony was taken at great length and there is some conflict in it. Did the minds of Mrs. Supple, Mrs. Wheeler and Mr. Barley meet in relation to just how much the grantors were to realize out of the transaction? At first it was expected that Mr. Barley would make a small payment down and in 90 days would close the deal. Mr. Stearns advised against that being done on account of the pressing need to take care of the taxes. Mr. Barley then proposed if he paid cash that he ought to have interest which would be evidenced by a discount credit. There was also to be deducted from the $15,000 which he was to pay all taxes and tax liens. A table was prepared known as Exhibit 6 which was headed “List of Taxes,” containing 15 items aggregating $4,329.81. This was submitted to Mr. Howard and he in turn submitted it to his client, Mr. Barley, who added to it the following “city taxes due July $212.50 (estimated)......$212.50.” With this addition the paper was returned to Mr. Howard and by him handed over to Mr. Stearns. The record is persuasive that as to these two items no agreement was reached and the minds of the parties never met. The amounts are not large but if allowed to Mr. Barley they would be deducted from the $15,000 which he was to pay and would diminish to that extent the amount the grantors would receive.

A pertinent inquiry is, What was the relation of Mr. Steams to the parties? It is claimed he was selected as a third party to whom the deed was delivered in escrow. The testimony is overwhelming that Mr. Howard was acting as the attorney for Mr. Barley and Mr. Stearns was acting in a like capacity for Mrs. Supple and Mrs. Wheeler. The deed to Mr. Barley was prepared under the direction of Mr. Stearns, it was taken to Mrs. Supple by his stenographer and executed before him and witnessed by him and another employee in -the office of Mr. Stearns. It was returned to Mr. Stearns and after it was signed by Mrs. Wheeler was retained by Mr. Stearns. In a printed record of 170 pages no witness testifies that the deed was delivered to Mr. Stearns in escrow. It undoubtedly was prepared in the expectation that on Monday the 5th of May at 11 o’clock, the parties would all get together in either Mr. Howard’s office or Mr. Stearns’ office and agree upon all details and complete the transaction. The deed, however, from the time it was made remained in the possession of the agent and attorney of the grantors until it was destroyed. It had not been delivered beyond the recall of the grantors. Mr. Barley had made no payment nor had he signed any writing in which he agreed to do anything. On the 4th day of May Mrs. Wheeler and Mr. Hopper reached an agreement. Monday morning Mrs. Wheeler telephoned Mr. Stearns that the Barley deed must not be delivered; that Mr. Hopper had agreed to purchase the property and would call at Mr. Stearns’ office in a short time. Mr. Hopper did so. The deed was made and the Barley deed was destroyed. In Mr. Stearns’ testimony appears the following:

“Referring to the conversation with Hopper on his first visit to my office, Hopper said he understood a deed had been made to Mr. Barley. I told him that was true but it had not been delivered, that the parties were to meet at 11 o’clock that morning to close the deal if they could get together, that up to that time the minds of the parties had not met on their transactions, that nothing had been paid to bind the bargain and that there had been nothing in writing up to that time — it was a tentative agreement and I saw no reason why Mr. Hopper could not carry through his deal as he had made it.”

We think the appellant has failed to show the delivery of a deed in escrow.

The decree is affirmed, with costs to the appellees.

Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred. Sharpe, J., did not sit.


text:
    GARAVAGLIO v. VERONA MINING CO.
    1. Payment — Checks—Question for Jury.
    Whether a check was given to an employee and accepted by him as absolute payment,' held, a Question of fact for the jury under the evidence presented.
    2. Same — Lost Check — Remedy.
    In the case of a lost check, received by an employee for services, his remedy against the employer, if the cheek was received as payment, would be to sue upon the check, giving the statutory bond (3 Comp. Laws 1915, §§ 12543, 12544), if not so received, he could maintain an action for his salary.
    3. Master and Servant^ — Penalty for Nonpayment of Salary.
    An employee suing for services on a lost check is not entitled to recover the penalty provided in 2 Comp. LawSt1915, § 5585.
    Error to Gogebic; O’Brien (Patrick H.), J., presiding.
    Submitted April 15, 1920.
    (Docket No. 68.)
    Decided June 7, 1920.
    Rehearing denied October 18, 1920.
    Assumpsit by Enrico Garavaglio against the Verona Mining Company for services rendered. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Julius J. Patek, for appellant.

      James A. O’Neill, for appellee.
   Moore, C. J.

The plaintiff was a miner who worked for the defendant. He brought this suit December 14, 1917; to recover for two months’ work done by him. He received from defendant on pay days two checks, one dated August 12, 1917, for $47, and another dated September 21, 1917, for $57.50. These checks were both drawn on the First National Bank of Bessemer, were payable to plaintiff or order, and were in the usual form except that the check for $47 had printed thereon: “This check is not payable at the bank unless presented within 60 days from date.”

It is the claim of the plaintiff these checks were stolen from his trunk without his indorsement, December 4,1917. When he found they were gone plaintiff notified the defendant of the loss of the checks and demanded pay for his labor. Ten days later this action was commenced on the original indebtedness to recover not only for the labor, but in addition thereto the penalty provided by section 5585, 2 Comp. Laws 1915.

The defendant, under its plea of the general issue, gave notice of the giving of the checks as a matter of defense. The case was tried June 5, 1918. At that time the checks had not been presented at the bank. Each party moved for a directed verdict.

We quote from the brief of defendant:

“It is the contention of the defendant that the acceptance by plaintiff of the checks constituted conditional payment, the conditions being that the defendant had funds to its credit in the bank upon which the checks were drawn sufficient to pay the checks, and that the bank was solvent, and both of these conditions having been fulfilled, if the plaintiff lost the checks, his remedy was an action on those instruments, and as they were both negotiable instruments, to maintain such action, he would be required to furnish the bond provided for in sections 12543 and 12544, 3 Comp. Laws 1915, indemnifying the defendant against claims of other persons on account of the outstanding checks.”

The trial judge accepted this contention and directed a verdict for the defendant. The case is brought here by writ of error.

Did the court err in disposing of the case as a question of law?

In 21 R. C. L., “Payment,” § 59, it is said:

“With the exception of a few jurisdictions the authorities are unanimous in supporting the rule that the giving of a bank check by a debtor for the amount of his indebtedness to the payee is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt, the presumption being that the check is accepted on condition that it-shall be paid; and the debt is not discharged until the check is paid, or the check is accepted at the bank at which it is made payable. • This has often been held true even where the person entitled to receive the money expresses a preference for its payment by check, but does not agree to assume the risk of its being honored.” Citing a very large number of cases.

Section 63 of the same authority reads in part:

“The fact that a check or draft was received in absolute payment may be established by showing an express agreement to that effect, or by showing such circumstances as will satisfy the mind that such was the understanding of the parties at the time the check was taken. There is no presumption that a creditor takes a check in absolute payment arising from the mere fact that he accepts it from the debtor. * * *
“Whether a check is given and accepted as absolute payment is a question of fact to be determined by the jury on the evidence presented.”

We think the question of whether the checks were received as payment should have been submitted to the jury as a question of fact. If they were, then plaintiff should have sued upon the checks, giving the bond mentioned in the statute. If they were not received as payment the present action could be maintained. This conclusion requires a reversal of the judgment.

As there must be a new trial we should state our views upon the question of whether plaintiff may recover the penalty provided in section 5585, 2 Comp. Laws 1915. A reading of this section will show most clearly that it was not intended for a situation like that shown in the instant case.

For the reason stated the judgment is reversed and a new trial ordered, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    HANCHETT v. FIDELITY & CASUALTY CO. OF NEW YORK.
    Principal and Surety — Bonds—Limitation op Actions — Waiver.
    In an action against a surety company on a bond for the faithful performance of a contract for the construction of a highway, evidence that defendant’s claim attorney, after notice of default, asked plaintiff not to do anything until he heard further from defendant, and nothing further was heard from defendant until after suit was brought, held, to sustain a finding that there had been a waiver of the limitation period named in the bond within which the parties had contracted that suit must be brought.
    Error to Shiawassee; Collins (Joseph H.), J.
    Submitted April 9,1920.
    (Docket No. 36.)
    Decided June 7, 1920.
    Assumpsit by Arthur J. Hanchett against the Fidelity & Casualty Company of New York, surety, and Arthur' L. Waldorf, principal, on a bond. Judgment for plaintiff. Defendant surety brings error.
    Affirmed.

      Cummins & Nichols, for appellant.

      Pulver & Bush, for appellee.
   Moore, C. J.

In May, 1917, plaintiff made a contract with the board of county road commissioners for the construction of a section of highway for the sum of $16,500. Later plaintiff sublet to Mr. Waldorf the work of graveling said road for the sum of $12,400. Mr. Waldorf furnished a bond to the principal contractor with the Fidelity & Casualty Company as surety thereon. The bond contained the following:

“Legal proceedings for recovery hereunder may not be brought unless begun within twelve months from the time of the discovery of the act or omission of the principal on account of which claim is made. But if the surety shall assume the performance of the contract, the period within which legal proceedings for recovery hereunder may be brought shall be deemed extended twelve months beyond the date of failure of the surety to perform the said contract.^ If any limitation set forth in this condition is prohibited by the statutes of the State in which this bond is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statutes.”

On January 19, 1918, the board of county road commissioners declared a forfeiture of plaintiff’s contract based upon the failure of plaintiff and Waldorf to carry on the work. Plaintiff on January 31, 1918, notified the Fidelity & Casualty Company in writing at its Detroit office of the forfeiture, concluding his communication with the words:

“I do inform you as Waldorf’s bondsman, I hold you responsible for the completion of said, road for the sum named in his contract.”

A representative of the surety company on February 20, 1918, wrote to the county road commissioners for Shiawassee county and the contractors a letter referring to this and other contracts, saying in part:

“Claim has been made in the above matter and the steps towards settlement now seem to be at a standstill. * * * Therefore, request is hereby made that the county road commissioners call a meeting for Tuesday, February 26, 1918, at 10:30 a. m., at the court house, Corunna, Michigan, and that you notify all interested parties to be present at the place and on the date stated so that this matter may be terminated. If the date is inconvenient or impossible for the meeting to be held, please advise the writer by return mail.
“Yours very truly,
“C. H. Ruttle, Examiner.”

Mr. Ruttle was an attorney at law and was at the head of the Michigan claim department of the surety company. Pursuant to his request the meeting was held and he there met the plaintiff. There appears in the testimony of Mr. Hanchett, when speaking of Mr. Ruttle, the following:

“He was getting acquainted around. I remember very distinctly of his turning to me and asking if my name was Hanchett. I said it was. He said T have a letter with me that we received from you/ He said it was pretty short and snappy and he also said to wait and not do anything until I heard from him and I said, ‘All right/ ”

There was other testimony along the same line. Some months after this it is said Mr. Ruttle left the employ of the surety company, leaving with his successor all his correspondence, books and reports. The plaintiff did not hear from Mr. Ruttle, his claim was not adjusted and he brought this suit June 26, 1919.

The principal defense is that the suit was not brought soon enough. The defendant asked for a directed verdict because the suit was not brought in time. The plaintiff claimed there had been a waiver of the limitation period named in the bond. The court overruled the motion of defendant surety company for a directed verdict and charged the jury fully upon the question of the waiver, giving a request of defendant reading:

“I charge you that this action is barred by the provisions of the bond sued on limiting the time within ,which to bring suit within one year, unless you are convinced by a preponderance of the evidence that defendant’s agent, Mr. Ruttle, requested plaintiff to not do anything until he heard from him, and that this request was the real reason why plaintiff did not bring suit within the year, and that but for such request, he would have actually sued before the year expired. Unless you do so find that he would otherwise have sued within the year, your verdict must be for the defendant no cause of action.”

The jury returned a verdict upon which judgment was entered for nearly $2,900. The case is brought here by writ of error.

Counsel for appellant say:

“The sole question in the case is, whether there was any evidence tending to show a waiver of the limitation within which the parties had contracted that any suit must be brought. * * *
“The court correctly held that a waiver is a voluntary relinquishment of a known right and that there must be evidence from which it could be found that the defendant intended to waive the provision contained in the bond limiting the time within which suit must be brought or else the suit must fail.
“Was there any evidence to support such a finding? Is there any support for the inference that, on March 5, 1918, Mr. Ruttle thought about or had in mind the limitation which would not expire for ten and one-half months and intended to waive it? Surely there is no direct evidence to that effect. Do the circumstances justify that inference? We submit that the direct evidence, not only does not justify the inference but negatives it. * * *
“When these contracts were forfeited outside of the question of labor and material claims already accrued on the other two roads in which plaintiff was in no way concerned, the defendant company was confronted by the question of whether or not it would take over the work of completing the contracts and this was a question which it would have to settle with a reasonable degree of promptness. The notice of forfeiture specified that the board itself would go on with the work after ten days but on March 5th the board was still willing that the company should take over the work, and at this meeting that was the only affirmative proposal under discussion. * * *
“As against the plaintiff these facts conclusively appear. On the- 5th of March, 1918, the road commissioners were willing that the defendant company should take over and complete Mr. Waldorf’s contracts. If it did so, plaintiff would have no claim against it whatever. It was considering doing that very thing and discussed it in plaintiff’s presence. No other course of procedure was in any way discussed. If the company concluded to do this, it must be done within a short time as the contracts called for the completion of all the jobs by the following August. Not a word was said about the time limit for bringing suit. The expiration of the time limit was in no way imminent. The period within which suit must be brought had just begun to run and in the natural course of events by far the major portion of it would remain after the question of taking over the work had been settled and about half of it would remain even after the time for completion of the work had expired. They were talking about taking over the road and they were not talking about anything else that plaintiff had any interest in.”

We think the above contention puts too narrow a construction upon what was discussed at the meeting.

Mr. Ruttle testified in part:

“Q. This talk you had with Mr. Hanchett do you recall that you informed him something about what you were doing here, what your work was?
“A. I think I explained that the day of that meeting what I was there for. I told him I was there investigating this case, trying to get the facts to find out if. the notice that had been served on us by the road commissioners was true, that if there had been a failure of the contractors on these road jobs, and if there had been, how much of a failure there had been; also the possibility of how the matter could be ironed out to the satisfaction of everybody and at the least possible expense. I think I explained that definitely that day and I think that was the occasion for my asking to have Mr. Roberts, civil engineer at Saginaw, also road builder, come down and look over these roads, inspect them and let us have a report as to what his ideas were on these roads, tliat is, whether there had been a failure to comply with the terms of the road building contracts.
“Q. And also in regard to taking over the roads possibly by the bonding company?
“A. That was talked at that time. That would all depend on whether we were satisfied there was a failure there. I think I said to the people that were there, the road commissioners and Mr. Hanchett and the people interested that the negotiations were at the stage where I couldn’t possibly decide or determine upon the matter at that time, in substance. .
“Q. Did you say, in substance, at that time also that, you had to have more time in which to investigate?
“A. I did, because I wanted to have someone that I knew come down and look the jobs over.
“Q. I want to ask you after asking for more time in which to investigate this matter, did you yourself ever close the negotiations?
“A. No, sir.
“Q. Or end them?
“A. No, sir. I left the employ of the Fidelity & Casualty Company shortly after.
“Q. Before the negotiations were completed?
“A. Yes, sir.
“Q. Did you ever, to either the road commissioners or Mr. Hanchett, deny liability upon the bonds?
“A. I don’t recall taking any step of that kind.
“Q. Do you recall also that at the time you were making this, statement to the road commissioners and these parties assembled there to the effect you must have more time in which to negotiate, that you said to Mr. Hanchett in substance, personally directed to him, that you were investigating this matter and were going to send Roberts down from Saginaw and that you would like to have him wait and. not do anything until he heard from you?
“A. I think that was true. I think that was the substance of what was said.
“Q. Just a general question on the subject of these negotiations for settlement. Do you know why nothing was done toward completing and adjustment of these matters by you?
“A. No, I don’t. * * *
“Q. Was that the substance of the conversation between you and them that you agreed that there would be nothing done, no suits commenced until they heard from you?
“A. Yes, the situation was left exactly as it was that day pending the report and investigation by Mr. Roberts and that was to be considered by us and we were to let them know afterwards what we would do. That is the way it was left. * * * I think everybody agreed there that day that the matter was to rest there just as it was for the time being.
“Q. Until they heard from you?
“A. 'Yes, sir; until Mr. Roberts could go down and give us a report.
“Q. But no one knew anything about Roberts’ report except you and the home office?
“A. I don’t think he gave a copy of that report to anyone else. So far as I know Mr. Hanchett never knew anything about what conclusion we arrived at. I didn’t at any time raise any technical claims or make any technical claim for defense in this case to Mr. Hanchett or the road commissioners.”

Counsel for appellant say the case of Dahrooge v. Insurance Co., 177 Mich. 442, is controlling. We think a reading of the opinion in that case will show it is readily distinguishable from the instant case. In the Dahrooge Case great stress was laid upon the fact that the insurance policy involved was a Michigan standard fire insurance policy, the form of which was compulsory upon the parties effecting the insurance. We think the instant case is more like Turner v. Casualty Co., 112 Mich. 425, where Chief Justice Long, speaking for the court, said:

“Afterwards, and on June 21, 1894, the plaintiff made a second statement of claim, which was forwarded to the company by Camp & Brooks, his attorneys. In regard to this letter, the defendants wrote the following letter, dated July 2, 1894:
“ ‘Your favor of June 23d, inclosing claim, blank regarding tbe above for an alleged injury • stated to have been received February 10th, duly to hand. I beg to say that we have already received a claim blank from Mr. Turner for an alleged injury Stated to have been received February 10th. We have already notified you that we fail to recognize any liability in that matter, and return the claim blank herewith. One of our adjusters will be in Saginaw shortly, and we will have him call upon you, and discuss this matter with you. We think he will be able to show you that there' is a breach of warranty in Mr. Turner’s application, and therefore- no liability on the part of the company under the policy Mr. Turner holds. Kindly allow the matter to rest until our adjuster can see you, and oblige.’
“Nothing more was done by either party until this, suit was commenced, February 4, 1896. J
“The first assignment of error relates to the refusal of the court to direct a verdict for the defendant,, on the ground that the suit was not commenced within, one year from the date of the injury. The policy provides that 'unless affirmative proof of death or duration of disability is so furnished within seven months,1 and any legal proceedings for recovery hereunder is begun within one year, from the time of such accident, all claims based thereon shall be forfeited to the company.’ The claim of plaintiff.is that the letter above quoted written to Camp & Brooks, constitutes a waiver of this clause of the policy. On the other hand it is contended that inasmuch as, during the time from the receipt of the letter to the commencement of suit, no adjuster of the company called upon plaintiff or his attorneys, and there was no communication of any kind between them on the subject of the adjustment of the claim, the plaintiff was not justified in waiting a year and a half before bringing suit; and again, that the statement in the letter requesting him to let the matter rest would not warrant or justify the plaintiff in permitting the year to go by without bringing his suit if he desired to protect his rights; that the plaintiff might have been justified in waiting a reasonable time after receiving the letter before tak.ing action, but not in waiting the time he did, as the letter held out no hope or promise of an adjustment, but merely asked that an opportunity might be given the company to explain why liability was denied.
“This clause in the policy, however, was one which could be waived by the company. It cannot be construed as a limitation fixed by law. While the plaintiff was not bound to wait before bringing suit, yet it is apparent that he did wait at the request of the company. He testified that the reason he did not begin his action within the 12 months was because of the receipt of the letter of July 2d: Such clauses in policies of insurance, while held valid as contracts, may be waived by the company. The law does not favor clauses of limitation in policies of insurance, and they are strictly construed and it does not require the positive act of the company inducing postponement; but, where the evidence is conflicting, the question of waiver is one for the jury. We think, however, in this case that there is no conflict in the evidence, and that the letter was positive in its terms, asking that the matter be allowed to rest until the adjuster of the company could see the plaintiff or his attorneys. As was said in Bonenfant v. Insurance Co., 76 Mich. 657:
“‘Forfeiture is not favored either in law or equity, and a provision for it in a contract will be strictly construed; and courts will find a waiver of it upon slight evidence, when the equity of the claim, is, under the contract, in favor of the assured.’
“See, also, Lyon v. Insurance Co., 55 Mich. 146 (54 Am. Rep. 354), and cases there cited; Peoria, etc., Ins. Co. v. Hall, 12 Mich. 202; 2 May, Ins. § 488; German Fire Ins. Co. v. Carrow, 21 Ill. App. 631; Thompson v. Insurance Co., 136 U. S. 287 (10 Sup. Ct. Rep. 1019).”

See, also, Dolsen v. Insurance Co., 151 Mich. 228; Mastenbrook v. Accident Ass’n, 154 Mich. 16.

Judgment is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ.,'concurred.


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    HUGHES v. HUGHES.
    1. Appeal and Error — Judgment on Retrial.
    Where, on retrial, the trial judge and counsel were in doubt as to whether the reversal of the case in this court was a reversal as to intervener only or whether it also reversed the case against defendant, intervener’s contention that it was error to permit plaintiff to take a judgment against defendant is without merit for the reason that when the lien established by the verdict is liquidated appellant is relieved from any further liability.
    2. Logs and Logging — Liens—Value oe Lien.
    In log-lien proceedings the trial court was not in error in allowing the jury to find that the plaintiff had a lien on property not exceeding in value $1,200 without finding the quantity or number of poles, posts, or ties on which plaintiff had such lien.
    Error to Bay; Houghton (Samuel G.), J.
    Submitted April 13, 1920.
    (Docket No. 50.)
    Decided June 7, 1920.
    Proceedings by Frank J. Hughes under the log-lien law against John A. Hughes and the W. C. Sterling & Son Company for work and labor. Judgment for plaintiff. Defendant company brings error.
    Affirmed.

      TI. V. Spike (M. L. Courtright, of counsel), for appellant.

      Collins, Thompson, Otto & McGinnis', for appellee.
   Moore, C. J.

This action is brought by plaintiff, a brother of defendant Hughes, for whom he was foreman, under the log-lien law (3 Comp. Laws 1915, § 14843 et seq.), to enforce a lien claimed by plaintiff on certain cedar posts, poles and ties got out by defendant John A. Hughes, in Chippewa county, and sold by him to W. C. Sterling & Son Company under a written contract dated February 15, 1915. Upon this trial the plaintiff recovered a judgment against John A. Hughes for $1,012.25 and for a lien of $920 upon the property described in the declaration, not exceeding $1,200. The appellant brings the case here by writ of error.

This is the second appeal of this case, the decision on the first appeal being found in 197 Mich. 690. The facts are substantially the same in the present case except that some additional facts were brought out which it is claimed should reverse the case without a new trial. A reference to the opinion written by Justice Steere when the case was here before will make a long statement of facts at this time unnecessary.

The first question argued by counsel is that the court erred in allowing plaintiff upon this trial to recover a judgment against defendant Hughes as he already had a judgment still in force against him obtained on the first trial of the case. Upon the trial counsel for the plaintiff and the trial judge were in doubt whether the reversal of the case when it was here before was simply a reversal against Sterling & Son Company, or whether-it also reversed the c'ase against John A. Hughes. Having this doubt, a judgment was- sought upon this trial against John A. Hughes as well as against the appellant who is now here. The court permitted plaintiff to take such a judgment. The amount thereof is the same as it was upon the first trial, with interest added for the intervening time. We do not think the contention of appellant in this regard is meritorious,' for the reason that when the lien established by the verdict is liquidated the appellant is relieved from any further liability. We quote from the brief of counsel:

“The court erred in not granting a new trial, for the reason that he should have instructed the jury, it being admitted that the levy was excessive, that in case they found plaintiff was entitled to a lien they must find the quantity or number of1 poles, posts or ties on which plaintiff had such a lien. * * *
“It was clearly error for the court to allow the jury to find that the plaintiff -had a lien on property not exceeding in value $1,200? as such a verdict and judgment would release nothing and would hold all the poles, posts and ties. This point was made on the former trial and was especially called to the attention of the court at the conclusion of his charge, as will appear from the record in that case.”

A reference to the former opinion will show that the point was raised and was settled against the contention of appellant’s counsel. We shall not discuss the other assignments of error; we have■ examined them and think them without merit.

The judgment is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    ROSENFELD v. WAYNE CIRCUIT JUDGE.
    Judgment — Default—Parties—Setting Aside Default.
    Where plaintiffs took a default judgment against a copartnership without amending their pleadings pursuant to order of the trial court, the individual members of the copartnership having been wrongly named in the declaration, said default and subsequent proceedings were properly set aside.
    Mandamus by Harry Rosenfeld and another to compel Harry J. Dingeman, circuit judge of Wayne county, to vacate an order setting aside a default and judgment.
    Submitted April 6, 1920.
    (Calendar No. 29,101.)
    Writ denied June 7, 1920.

      Joseph B. Beckenstein, for plaintiffs.

      Fixel & Fixel, for defendant.
   Moore, C. J.

This is an application for a writ of mandamus to compel the defendant to vacate an order setting aside a default and a judgment. The facts are not in dispute. They are substantially as follows:

‘‘Harry Rosenfeld and Thomas Slatky filed a declaration against ‘Thomas S. Lowenberg and Emil Lowenberg’ upon a joint obligation of the firm of ‘Lowenberg Brothers.’ On March 22, 1917, the declaration was served, according to the return of the sheriff, ‘on Jacob S. Lowenberg and Emil Lowenberg, copartners, doing business under the firm name of Lowenberg Brothers, and defendants named in said declaration, by delivering’ a true copy thereof ‘to Jacob S. Lowenberg and Emil Lowenberg, copartners, said defendants.’
“On March 27, 1917, Lowenberg Brothers appeared specially, moving to dismiss the cause, ‘for the reason that said Lowenberg Brothers is a copartnership, composed of Jacob S. Lowenberg and Emil Lowenberg, and that defendants are not a firm composed of Thomas S. Lowenberg and Emil Lowenberg.’
“On March 31, 1917, upon the hearing of said motion the following order was entered by the court:
“ ‘A motion having been filed by the defendants in said cause, asking that said cause be dismissed on account of the misnomer of said defendant, and both parties being in court, and after hearing oral arguments on said motion by the attorney for the defendants and the attorney for the plaintiffs; it is ordered that said motion be, and the same is hereby denied.
“‘And it is further ordered, that on the payment of ten dollars costs, to the said defendants, plaintiffs be allowed to amend the pleadings in said cause so that the defendants may be properly named therein.’ ”

Instead of amending the pleadings plaintiffs entered the default of defendants on February 1, 1918, and judgment was entered against them on October 10, 1918. Execution was issued and the sheriff attempted to make a levy upon the goods and chattels of the firm of Lowenberg Brothers. Defendants again appeared specially and moved to set aside the default, judgment and execution. This motion was granted, the court stating:

“It is my opinion that the default was irregular. It is my view that under the order of Judge Law, before any further proceedings could be had in the cause, that plaintiff was required to amend the pleadings and process, and pay the costs provided for. Not having done so, any further proceedings in the "cause were of no effect.”

It is the contention of the plaintiffs that they had a right to proceed in the case without amending the pleadings, and that the judgment would be good as against the partner who was served with process and against the partnership property. The trouble with this contention is that they commenced a law suit against Thomas S. Lowenberg and Emil Lowenberg doing business under the firm name of Lowenberg Brothers, when there was no firm doing business under the firm name of Lowenberg Brothers, the individual members of. which were Thomas S. Lowenberg and Emil Lowenberg. It is difficult to see how counsel; after the facts were developed, could cause the affidavit of regularity to be filed which was the basis of the default order.

We think the circuit judge was right in setting aside the default and subsequent proceedings, under Turner v. Ottawa Circuit Judge, 123 Mich.. 617, and McCain v. Wayne Circuit Judge, 187 Mich. 73; Harris v. Thomas, 140 Mich. 462; Carroll v. Manufacturing Co., 181 Mich. 280.

The writ of mandamus is denied with costs.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    McRAE v. UNION TRUST CO.
    Evidence — Parol Evidence to Explain Written Receipt — Admissibility.
    Where plaintiff, the lessee of a safety deposit box, signed certain, papers certifying that all his property stored in the vault had been withdrawn, and releasing the defendant depository from liability, testimony- explaining the circumstances under which the papérs were signed by him, and showing that they did not constitute a defense to an action to recover the amount expended by plaintiff in recovering valuable bonds taken without authority by plaintiff’s stepson, held, admissible.
    On the general rule that parol evidence is not admissible to vary, add to, or alter a written contract,- see note in 17 L. R. A. 270.
    Error to Wayne; Codd (George P.), J.
    Submitted April 21, 1920.
    (Docket No. 17.)
    Decided June 7, 1920.
    Case by John A. McRae against the Union Trust Company for wrongfully allowing access to a safety deposit box. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      James Swan, for appellant.

      Campbell, Bulkley & Ledyard (Wilson W. Mills, of counsel), for appellee.
   Moore, C. J.

It is the claim of the plaintiff that in November, 1915, he rented from the defendant a safety deposit box and paid therefor the annual rental, that said box was taken in the name of John A. McRae and Flora McRae, his wife, and that no other person had the right of access to said box without the written consent of either of them, that plaintiff kept in said box certain bonds and more particularly 10 bonds of the Niagara Falls Power Company of the value of $10,000; that Flora McRae, his wife, died on the 11th day of May, 1916, leaving-her husband, John A. McRae, and one son by a previous marriage, William D. West; that after the death of his wife the appellant notified the Union Trust Company of her death; that prior to the death of his wife, she had, unknown to the plaintiff, taken her son to the Union Trust Company and had his name placed upon the card; that on the 15th day of May, 1916, the defendant permitted the said William D. West to enter the safety deposit box numbered 1,447 and that he took away therefrom 10 bonds of the value of $10,000 of the Niagara Falls Power Company;. that appellant immediately notified the Union Trust Company, and hired detectives and attorneys and. expended the sum of $1,844.46 to recover the bonds. This action was begun for the purpose of recovering the money so expended.

The defenses interposed were:

(1) That the said William D. West was on or about the 30th day of March, 1916, duly and properly given by the lessees of safe box 1,447 the right of access thereto.

(2) That the defendant if it ever became liable as set forth in the plaintiff’s declaration, its liability has been released by virtue of two instruments in writing, the first dated June 15, 1916, and the second dated December 5, 1917, each of the said releases be.ing in the following form to wit: “I hereby certify that all the property placed or stored in the safety •deposit vault of the Union Trust Company, Detroit, in pursuance of the letting above mentioned has been withdrawn therefrom and is now in the owners’ sole possession, all claims against and liability of said company, therefore, being waived accordingly,” which were signed by the plaintiff.

During the trial, while the plaintiff was being examined, the above mentioned papers were called to his attention, and were introduced in evidence by the defendant.

Plaintiff’s counsel sought to show by him the circumstances under which these papers were signed by him, for the purpose of showing they did not constitute a defense to the suit. Objection was interposed.. The' record shows:

“The Court: I will sustain the objection on the' ground that such testimony would tend to vary the' terms of a written instrument.
“Mr. Swan: A receipt can always be explained; that is elementary.
“The Court: It may be explained, but I don't think it can be contradicted.
“Mr. Swan: Yes, it is possible to contradict a re-| ceipt or the terms of it — that is the theory upon which I asked the question.
“The Court: I will sustain the objection. * * *
“The Court: Well, I should like to see your authorities on that. That is not the way I understand the law.
“Mr. Swan: Then the ruling of the court is that no testimony will be allowed to vary Exhibit 2?
“The Court: I think so.
“Mr. Mills: You will grant my motion to strike from the record all testimony in the case contradicting the terms of this instrument?
“The Court: Yes.”

The court, a little later upon motion of the defendant, directed a verdict for the defendant. The case is brought here by writ of error.

Counsel for the defendant now urge that, even though the trial judge gave a wrong reason for his action, it ought to be sustained, as what was done constituted a contract based upon a consideration, to wit, the surrender of one deposit box and giving the use of another. There is difficulty in sustaining this contention growing out of the meagerness of the testimony upon the record as made.

In Bidwell v. Railway Co., 148 Mich. 524, Justice Montgomery, speaking for the court, said in part:

“The circuit judge charged the jury as to the question of the pay roll as follows:
“ ‘If you find that those conditions afford plaintiff a reasonable opportunity to see and know the purport and effect of these receipts, then the plaintiff cannot recover. In this connection you are to consider the conditions under which he signed. You are 'to determine whether the methods employed by the officers in charge of the ear gave him a reasonable opportunity to know the statements at the head of the column.’ If you find that he had no such reasonable opportunity, then the receipt does not bind the plaintiff.’
“We think, .in view of the testimony of plaintiff that he from time to time spoke to Mr. Waters about his overtime, that it was a question for the jury as to whether he in' fact understood that he was receiving payment in full each month.”

See Hicks v. Leaton, 67 Mich. 371; Title Guaranty & Surety Co. v. Indemnity Co., 167 Mich. 535; and Paddock v. Hatch, 169 Mich. 95.

We think the court erred in excluding the testimony of the plaintiff and in directing the verdict.

The case is reversed and new trial ordered,' with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Steere, J.

text:
      In re THAYER’S ESTATE. NATIONAL SURETY CO. v. THAYER’S ESTATE.
    1. Executors and Administrators — Probate Proceedings Statutory,
    Probate proceedings are purely statutory.
    2. Same — Keeping Open Estate — Discretion of Court — Jurisdiction.
    If any application, notice, or knowledge of an exceptional claim comes to the probate court it has a limited discretion to longer keep the estate open to entertain the same, but it is the policy of the law that the assets of the estates of deceased persons shall be assembled, debts ascertained and paid, the residue distributed to beneficiaries and the estate closed with 'all convenient dispatch, and when the estate is finally closed, the jurisdiction of the court in that case ends.
    3. Same — Supplemental Proceedings — Purpose.
    The statutory provisions made for supplemental proceedings de bonis non, where concealed or previously undiscovered assets of the estate become known, do not contemplate further proof of claims, but are only for distribution of such assets to those entitled to them at the time the estate was closed.
    4. Same — Contingent Claim Against Closed Estate — No Authority to Reopen — Statutes.
    Where an estate had been finally closed and the executor discharged, the court had no authority, under 3 Comp. Laws 1915, § 13901, to reopen the estate and entertain a contingent claim against it by a surety company by reason of its liability upon a bond in which deceased was principal, and upon which a right of action had accrued.
    Error to Kent; Brown (William B.), J.
    Submitted April 8, 1920.
    (Docket No. 27.)
    Decided June 7, 1920.

      Petition by the National Surety Company to reopen the estate of George W. Thayer, deceased, for the purpose of filing a claim. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant Michigan Trust Company, trustee, brings error.
    Reversed, and petition dismissed without prejudice.

      John E. More, for appellant.

      Colin P. Campbell, for appellee.
   Steere, J.

George W. Thayer, to whose estate this litigation relates, died testate in the city of Grand Rapids, Michigan, on September 21, 1916. The amount of his estate is not disclosed nor what his will provided, beyond the fact that he left a “residue” of his estate to the Michigan Trust Company of that city to be held by it as trustee for two beneficiaries named George W. Thayer, Jr., and Cassius Thayer, nominating said trust company as executor of his will. On October 3, 1916, said will was duly probated and allowed in the probate court of Kent county and said trust company was appointed executor, but what steps were taken by the executor in administering the estate is largely left to inference. It does, however, appear that on May 4, 1917, the Michigan Trust Company, as executor, turned over to itself as trustee for George W. Thayer and Cassius Thayer the residue of said estate, amounting to upwards of $75,000, which it yet holds as trustee; that on May 22, 1917, it was discharged as executor of said will and administration of the estate was closed by order of the probate court.

In the course of these proceedings the Michigan Trust Company took possession of certain securities concededly held by decedent as a trustee which, so far as this record discloses, it yet retains and on May 23, 1919, a petition was filed in the probate court of Kent county by thé National Surety Company of New York, asking that said estate be reopened and that it be allowed to file its claim against the estate of deceased upon the facts stated in its petition relating to Thayer’s trusteeship, and funds held by him as trustee at the time of his death, with the concluding prayer:

“that said claim may be adjudicated and allowed to your petitioner, and that your petitioner may have such other and further relief in the premises as in equity and good conscience it may be found entitled to and as to the court may seem meet.”

The National Surety Company’s claim is alleged to have been contingent until after probation of the Thayer Estate in Kent county had been closed, and is for an amount said trust company avers itself liable to pay on a certain bond in which it became surety for said George W. Thayer in 1899, at which time he was appointed by the surrogate court of Onondaga county, New York, trustee of the estate of one Dioclesian Alvord, deceased, then pending in said court, and required to give a bond for faithful performance of his trust.

A hearing was held before the probate court upon such application for leave to file the New York claim, and the same was denied because the statutory limit of time in which such belated application could be granted had expired, leaving the court without jurisdiction to entertain the same. Petitioner thereupon appealed from said denial to the circuit court of Kent county where trial was had before the court without a jury. Findings of fact and conclusions of law thereon were requested and filed. The decision of the probate court, was reversed, with judgment entered, determining that the estate should be reopened and said claim passed upon by the probate court to which the case was remanded for further proceedings. The proceeding was then removed to this court for review on writ of error by counsel appearing for the Thayer estate.

•' The somewhat historical and smoothly explanatory narrative in appellant’s statement of facts relating to the estate of Dioclesian Alvord, deceased (said but not shown by the record to have died before May 11, 1868), is said by appellee’s counsel to be based more largely on “fancy and imagination” than facts disclosed by the record. Counsel do not on either side .favor the court by any reference to pages or portions' of the record in support of the facts they claim, but a. study of the record forces the conviction that frequent portions of the story told in appellant’s statement of facts while not improbable nor vitally material, as we think, must have been obtained from sources dehors the record.

From the court’s finding of facts and documentary ■evidence in the record, it can, however, be authoritatively but somewhat disjunctively stated that Dioclesian Alvord died some time before 1899 leaving an estate and a will providing for a trusteeship which was admitted to probate by the surrogate court of Onondaga county, New York; that’on June 26, 1899, said surrogate court appointed George W. Thayer, now deceased, trustee of said estate, requiring him to give a bond in the sum of $10,000 for the faithful performance of said trust, which he did, securing said National Surety Company of that State as his surety on said bond. In connection therewith and as part consideration therefor he signed and acknowledged an agreement that he would—

“pay over, reimburse and make good to the company, its successors and assigns, all sums and amounts of money which the company or its representatives shall pay or cause to be paid or become liable to pay, under its obligation upon said instrument, or as charges and expenses of whatsoever kind ■ or nature, including counsel and attorney’s fees, by reason of the execution thereof, * * * to the company as soon as it-shall have become liable therefor, whether it shall have, paid out said sum or any part thereof or not.”

There then came into the hands of said George W.. Thayer as trustee three parcels of real estate located, in Onondaga county, New York, which he subsequently sold receiving therefor $19,000 which he invested in interest-bearing bonds, and during his lifetime paid the interest received thereon to Elizabeth K. Sherwood, the beneficiary of said trust (said but not shown by the record to have been a daughter of Dioclesian Alvord, deceased), who died June 13, 1916. Amongst those securities were $4,000 worth, par value, of Montezuma county, Colorado, bonds which defaulted in payment of interest January, 1914, and have yielded no income since.

The Michigan Trust Company is not shown to have taken any steps with reference to Thayer’s trusteeship of the Alvord estate or the trust securities belonging thereto which it took possession of and yet holds, so far as this record shows, until after the Thayer estate was closed and the executor discharged, when, on July 17, 1917, said Michigan Trust Company in behalf of the estate of George W. Thayer, deceased, filed its petition and claimed final account in the surrogate court of Onondaga county, New York, praying for a determination in relation thereto, and allowance of said account with instructions as to the disposition of trust funds of the Alvord estate so held by it. An answer to such petition was filed in the surrogate court by one Robert H. Sherwood, stating' he was sole heir of Elizabeth K. Sherwood, deceased, j and by the terms of the will of Dioclesian Alvord en-' titled at her death to the funds so held in trust by. George W. Thayer at the time of his death. Thereafter, on September 12, 1918, a decree was made and entered by the surrogate court of Onondaga county which, amongst other things, decreed and directed that the Michigan Trust Company pay over the sum of $19,200 to Robert H. Sherwood, the then beneficiary entitled to said trust fund received by it from the estate of George W. Thayer, deceased. The Michigan Trust Company has not appealed from said decree nor complied with its requirements and, as stated by the trial court, “does not propose to.” The National Surety Company also stated in the petition it filed with the probate court of Kent county, on May 23, 1919, that it had no notice or knowledge of such proceedings or of the decree by the surrogate court until it received a copy of such decree in September, 1918; that said Robert H. Sherwood refuses to accept said securities from the Michigan Trust Company, demanding “cash be paid him instead,” and that he is “proceeding against your petitioner in the State of New York to enforce its liability upon said bond under said decree and your petitioner will be to additional expense and cost in the premises, all of which the estate of George W. Thayer should pay.”

If the printed record in this case is reliable, the petition of the National Surety Company was signed by R. C. Carson, its vice president, and sworn to by him before a notary public of -New York on May 19, 1918, a year before it was filed in the probate court of Kent county. But passing that by as a possible clerical error, it is undisputed that the petition in question was filed in the probate court of Kent county more than two years after the estate of George W. Thayer was closed and his executor discharged.

Appellee’s counsel concedes that under the situation presented here its petition can only be entertained by the probate court, if at all, under authority of that portion of our statutes relative to probate proceedings covered by the sub-heading “Contingent Claims,” being compiler’s section 13897 et seq., chapter 56 of the Compiled Laws of 1915, entitled “Payment of Debts of Deceased Persons — Limitation of Time for Payment of Debts,” and states that the section relied upon is section 19 of the chapter (3 Comp. Laws 1915, § 13901) which is as follows:

“If the claim of any person shall accrue or become absolute, at any time after the time limited for creditors to present their claims, the person having such claim may present it to the probate court, and prove the same at any time within one year after it shall accrue or become absolute, and if established in the manner provided in this chapter, the executor or administrator shall be allowed to pay it, if he shall have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay.” * * *

For the defense it is contended that the plaintiff’s claim was not presented within one year after it had accrued or become absolute, and that, taking together the various provisions of the statute on probation of claims against estates of deceased persons, it is manifest that the sections relating to “contingent claims” apply only to unclosed cases, or estates, yet pending in the probate court.

Both parties apparently recognize that the section in question is to be read and construed in the light of other provisions of the law relative to probating claims. Two chapters of the probate law deal with the subject of presenting and proving claims against estates. Chapter 55, 3 Comp. Laws 1915 (commencing on page 4856), entitled “Of Commissioners on Claims,” consisting of 19 sections, provides for their appointment after letters of administration have been granted, the proceedings before them, their powers and duties, and those of the court in that connection, including time allowed to present claims, extension of such time and revival of the commission by the court while the estate is yet pending, etc. Sections 7 and 14 of that chapter provide:

“(13870) Sec. 7. On the application of a creditor who has failed to' present his claim, if made at any time before the estate is closed, the judge of probate may revive the commission and allow further time not exceeding one month, for such creditor to present his claim to the commissionjers. When such claim shall have been presented to the commissioners, they shall personally notify the executor or administrator.” # # * *
“(13877) Sec. 14. Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred, from recovering such demand, or from setting off the same in any action whatever.”

Chapter 56, entitled as before quoted and consisting of 30 sections, continues the subject of debts of deceased persons and upon “contingent claims,” section 15 of said chapter, the first under that heading, authorizes any person who is liable as security for the deceased or has any other claim against his estate which cannot be proven as a debt against his estate before the commissioners, or allowed by them, to protect the same by proving it properly before the commissioners, who are to embody it in their report, or before the court itself, after which the administrator may with consent of the claimant and permission or direction of the court settle or adjust certain kinds of such claims and pay them, as other proved debts of the estate. Section 16 provides that if the court is satisfied from the report of the commissioners, or proof exhibited, it may order the executor or administrator to retain sufficient of the estate to pay such contingent claim when it becomes absolute or, if the estate be insolvent, sufficient to pay the same percentage as to other creditors. Section 17 provides for proving a contingent claim which has become absolute, if presented to the executor, administrator or court at any time within two years from the time limited for other creditors to present their claims, on making proper proof of the same as in other cases. Section 18 provides for payment of such contingent claim when allowed if the estate retained by the exec-' utor or administrator be sufficient for the purpose, and section 19, upon which plaintiff relies, provides for proof and payment by the “executor or administrator” as before quoted.

Each of these sections relating to contingent claims, including section 19 and also others which follow, name executors and administrators upon whom duties are imposed, thus apparently contemplating unclosed estates yet pending in the probate court with such officers representing them. If section 19 was intended to apply after the estate is closed and presumably fully administered, its assets distributed and the administrator or executor finally discharged, leaving no assets or legal representative of such estate in the probate court,- the incongruous recognition by direct reference to such discharged officers as though yet functioning and ready to perform their official duties under the direction and orders of the probate court which had discharged them is difficult to harmonize with such intent.

Those various provisions relative to proving claims against estates of deceased persons in probate court are of old enactment: In Showers v. Robinson, 43 Mich. 502, it was said of their limitation by Justice Cooley, apparently as of general application: “All claims against the estate are barred which are not presented and proved before the administrator is discharged”; citing Brown v. Forsche, 43 Mich. 492, where the statute relative to probation of estates is discussed at some length. In Seilnacht v. Wayne Probate Judge, 201 Mich. 536, the court said in discussing a kindred limitation in the probate law:

“By its terms creditors are preserved the right to present their claims 'at any time before the estate is closed.’ When the estate is once closed that right is at an end. The proceedings are purely statutory. Before the estate is closed the right given by this statute is an absolute right, does not depend upon the discretion of the probate judge, and the commission on claims may be revived ex parte and without notice (citing cases). But by the terms of the statute when the estate is closed the right is at an end and the claims of creditors are barred (citing cases). There is no provision in the statute which revives this right, once barred by the statute, upon the discovery of additional assets for administration and the appointment of an administrator de bonis non. * * * Title to property administered in probate courts should be stable. The statute has wisely provided ample time for the presentation of claims against estates and has also wisely provided a time at which they shall be barred.”

Probate proceedings are purely statutory. Under them ample time and opportunity with published notice is given all creditors of a deceased to present, prove, or exhibit to protect their rights, any and all claims they may have, and when contingent yet further time. If any application, notice or knowledge of an exceptional claim comes to the probate court it has a limited discretion to longer keep the estate open to entertain the same. But it is the policy of the law in this State and elsewhere that the assets of the estate of deceased persons shall be assembled, debts ascertained and paid, the residue distributed to beneficiaries and the estate closed with all convenient dispatch. If such course is pursued regularly and fairly in strict compliance with statutory requirements until the purposes of probation are fully accomplished in everything connected with the estate known to the court and the estate is finally closed, it is a well recognized general rule that the jurisdiction of the court in that case ends. The statutory provisions made for supplemental proceedings de bonis non, where concealed or previously undiscovered assets of the estate become known do not, as said in the Seilnacht Case, contemplate further proof of claims, but are only for distribution of such assets to those entitled to them at the time the estate was closed.-

In Mutual Life Ins. Co. v. Hill’s Estate, 108 Mich. 126, the section relied on here was involved and is there quoted. Of it this court then said:

“The plain purpose of this statute was to give creditors a year after their claims accrued or became absolute within which to present them against the estate. The time for such a claim to accrue or to become absolute does not depend upon the rendition of a judgment against the principal. When a right of action accrued upon the bond, the right to present and prove the claim against the estate arose. Suit could have been brought upon this claim against the principal and surviving surety at any time before it was barred by the statute of limitations; but the above statute limits the right to present such claim against the estate of a deceased to a year from the time when suit might be brought against the surety if living.”

So far as can be gathered from the record in the instant case, when the beneficiary for life, Elizabeth K. Sherwood, died on June 30, 1916, a right of action accrued upon the trustee’s bond to Robert H. Sherwood, the beneficiary then entitled to the trust fund, against George W. Thayer and the National Surety Company. Such liability of principal and surety in case the principal failed in the voluntary performance of his trust existed from that time. After Thayer’s death the liability of his estate and his surety yet continued although diminishing probability of faithful and prompt accounting by or for the estate of the deceased trustee may have made the bondsman’s liability to respond more acute. A judgment against the principal was not a prerequisite. So far as shown the National Surety Company has not yet been compelled to respond, or pay anything to the beneficiary by reason of its suretyship. In that aspect of the case the claim appears yet contingent.

It is strenuously urged for plaintiff that as its only recourse is to file this claim against the Thayer estate in the probate court, the construction contended for by defendant would be grossly inequitable, as it “would enable the Thayer estate to profit to the extent of at least $10,000 to our disadvantage and to the disadvantage of the beneficiary of the trust.”

Why this trust was seemingly ignored in the probate proceedings, if known to the executor or court before the estate was closed, this record which leaves many things to surmise furnishes no explanation; but it does appear that this contention involves a trusteeship and trust funds, matters peculiarly and generally within equity jurisdiction, that the Michigan Trust •Company, presumably a responsible financial concern,, took control of those trust funds or the securities in which they were invested along with a residue of the estate, then knowing or subsequently learning their character, and so far as appears the identity of the trust fund has not been obscured by blending it with the assets of the trustee. A glance at the law of trusts suggests a possibility that the disaster prophesied is not inevitable.

The judgment of the circuit court is reversed without a new trial, and also without prejudice to any other or different proceedings plaintiff may see fit to institute in reference to said trust fund.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. '