text:
    ROUP v. ROUP.
    1. Deeds — Delivery—Evidence.
    A husband and his wife executed deeds of their farm to their two sons, and, on their return home, the wife, in the-presence of the husband, handed the deeds to the sons, saying, “Boys, here are your deeds.” By her directions the sons then placed the deeds in a box in which the father kept his private papers, which box was then and thereafter kept in his bedroom. The parents subsequently mortgaged the land, and lived upon and controlled the premises as if their own. Held, that such facts did not establish a delivery of the deeds.
    2. Same.
    A statement signed by the parents, that “the deeds that we have made over to” the sons “are not to be recorded until after we are both dead, and then the boys are to give ” their sister “ a note for §500 for her share; after this is done, the deeds are to ” belong to the sons, — and intended to be attached to the deeds, did not indicate an understanding that the deeds had been delivered.
    Appeal from Calhoun; Winsor, J.
    Submitted November 20,1903.
    (Docket No. 149.)
    Decided April 26, 1904.
    Bill by Clark A. Roup against Waylie A. Roup to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.

      John O. Patterson, for complainant.

      Hatch & Page, for defendant.
   Moore, C. J.

This is an appeal from a decree granting the relief for which complainant prayed in his bill of complaint. The case was tried in open court. The trial judge filed a very carefully prepared opinion, which states the questions involved so clearly that we quote a portion ■of it:

“Complainant prays that two deeds, now recorded in the office of the register of deeds of Calhoun county in Liber 177 of- Deeds, at pages 104 and 105, respectively, be annulled, vacated, canceled, and set aside, and that defendants be required to surrender the same to the register of this court for cancellation, * * * and that the cloud caused by said deeds and the records thereof upon complainant’s title to the premises described in said bills of complaint be removed, and complainant’s title thereto quieted.
“Complainant in this case is the father of the- two defendants, and the deeds in question were voluntarily made by himself and his then living wife, Candace A. Roup, on the 6th day of October, 1899, while they Were residents of the county of Isabella, in this State. Defendants had always lived at home with their father and mother, and were living with them at the time the deeds in question were executed. Wayne A. Roup was a minor son, and Way lie A. Roup about 30 years of age, at that time. Complainant claims that, in order to avoid the expense of administration upon his estate after the death of himself and his wife, they had the deeds prepared, and executed them, intending to keep them in their possession, and after their deaths defendants were to take the deeds and record them, paying their sister, Myrtie Henry, $500, thus settling the estate without the aid and procedure of the probate court. Complainant also claims that, after the execution of the deeds, they were brought to the home in Isabella county by himself and his wife, and were put into a paper shoe-box, which was kept in his bedroom in or upon a stand, in which shoe-box he kept all his private papers; that the deeds remained in this box until after he removed his family and goods to Calhoun county, in the fall of 1899, when he went into possession of the farm in question, and lived there with his family just as they had always lived in Isabella county; that, after the removal of the family to the Calhoun county farm, the paper shoebox containing the deeds in question and other papers, such as insurance policies and pension papers, were' put in the bureau drawer in complainant’s bedroom, and there remained until he missed them from the shoe-box, in June, 1901; that his wife, Candace A. Roup, died October 28, 1900, after a short illness, and that the last time complainant saw the deeds was in March, 1901. Complainant claims that, after he missed them, he immediately made inquiries in regard to their whereabouts, and that he asked defendants if they had taken them, but that they disclaimed any knowledge of the disappearance. Complainant alleges that the deeds were never delivered to defendants, and that he was at all times in the actual possession and control of them; that he did not owe either of the defendants for labor or otherwise, and never made any agreement with them, or either of them, to pay them for any labor by conveying the lands in question to them. It is further claimed that complainant, with his wife, Candace, always used and occupied the lands and home as theirs after the execution of the deeds in question, and improved the property, and gave and executed a mortgage for $600 on the same; and that defendants never had any financial interest in said farm. This states sufficiently the claim of complainant to raise every question which it will be necessary for this trial court to consider.
“Defendants set up and claim that, while they worked and labored at home with their father and mother, they put into the farm in Isabella county all they earned at home and abroad, and that complainant had agreed to pay Waylie A. Roup $20 per month if he would remain at home and assist in working the farm with his brother, Wayne, and care for complainant and his wife during their lifetime; but that, when complainant bought the farm in Calhoun county, he. together with his wife, Candace, agreed to and did make the deeds to. them in payment for their labor, etc.; that, on the day the papers were executed, they were delivered to defendants by the mother, and in the presence of complainant, and defendants were told by the mother, in his presence and hearing, what the papers were, and they received them from her, and read them, and each, under the direction of their mother, put them in the paper shoe-box in complainant’s bedroom, with the other papers contained therein. Defendants claim that this box was a kind of family receptacle for the keeping and preserving of valuable papers for all the family, and that it was used by them all for that purpose. Defendants further claim that while the mother was sick, and just a few days before her death, she called her oldest son, Waylie, to her bedside, and told him to-take the deeds out of the box and have them recordedj that in March, 1901, after Candace A. Roup died, the defendant Waylie A. Roup took the deeds out of the box, and gave them to his sister, Myrtie Henry, who kept them until the 30th day of September, 1901, and then had them recorded. There is no claim that complainant knew who took the deeds away until after they were recorded. On the other hand,it is claimed complainant was searching and making inquiries for them from the time they were missed until he learned what had become of them. There is no-claim or pretense that he was consenting or knew of the removal of the deeds.
“The principal question in this case, and the one to be first determined by the court, is, Were the deeds delivered by the grantors to the grantees, the defendants in this-case, at the time they were executed and brought to their home in Isabella county, on October 6,1899? The delivery of a deed is the essential act on the part of the grantor to give life to the transaction, or to give it any force whatever. In addition to this, of course, must be acceptance by the grantees. There is no question but that the deeds-were executed by complainant and his wife, Candace,, to-the defendants, as grantees, and that they were brought home and read by defendants, and at the suggestion of the mother were put into the paper box kept by complainant in his bedroom. Taking defendants’ theory and testimony of what occurred in the home on the evening of October 6, 1899, it would seem that the mother was the moving spirit in what transpired there. Defendant Wayne A. Roup testified:
‘Q. Do you remember the occasion of you father and mother getting these deeds, Exhibits A and B, and bringing them home ?
‘A. Yes, sir.
‘Q. What time was it they brought them home, — -what time in the evening ?
‘A. Well, it was after dark when I saw them first. I'could not say what time.
‘Q. What occurred when they came in ? Just go on and tell the court what occurred when they came in with the papers, or when they came into the house.
‘A. We had been at work either husking or cutting corn at the 'time, and when we came from work it was late, because we were .getting ready to move down here, and we worked late. My brother would come up (Waylie) and do the chores, — we had nine cows to milk, — and he would come up and do the chores, and I would work later in the field. Some nights when it was moonlight I would work until 8 o’clock. And when I came up mother brought the •deeds.
“ ‘ Q. (interrupting). ■ What did she say to you ?
‘A. She said, “ Boys, here are your deeds,” and handed one to me and one to my brother.
“ ‘ Q. What did you do with them ? . •
‘A. I read them over, and put them in the box that he has been telling about.
“ * Q. Who put them in ?
‘A. Us boys. * * *
“ ‘ Q. Now, you may state how far your mother was, or your father, rather, when your mother handed one of these papers to you ■and the other to Waylie and said, “Boys, here are your deeds.” How far away were you at that time ?
‘A. I should think about six or eight feet.
“ ‘ Q. Did he say anything ?
‘A. No, I don’t remember as he said anything.
“ ' Q. What was said, if anything, about when they were to be recorded, or anything of that kind, by your father and mother, at that time, or by any of you ?
‘A. Well, I don’t know as there was anything said just then when they were to be recorded. * * *
“ ' Q. Was there any statement that you should not put them on record ?
‘A. No, sir.
“ ‘ Q. By the Court: Why did you put them in the box ? Why ■did you nq,t take them down for record at once ?
“‘A. As long as my mother was living they were safe without recording.’
“ Upon cross-examination the same witness testified:
“ ‘ Q. Who did the talking?
“‘A. My mother.
“ ‘Q. Did you say anything, or make any reply?
•“‘A. No, I don’t know as I did.
“ ‘ Q. Did Waylie make any reply?
‘ A. No. They were handed to us, and we read them over.'
"'Q. Did you read them?
“‘A. Tes.
“ ‘ Q. Then you gave them back to your parents, your father and. mother?
“‘A. We put them in that box.
“ ‘ Q. Who did?
“‘A. We did, us boys. * * *
'“Q. Where was this box?
‘“A. Well, I don’t just remember now. It was moved around from place to place.
“ ‘Q. Where was your mother sitting when you put them in that box?
’“A. She was sitting in the kitchen, where she was when they were handed to us.
“ ‘ Q. Where was your father sitting when they were put in there?
“'A. He was in there with us, I think.
“ ‘ Q. Where was this box when they were put in it?
‘“A. I think it was in their bedroom.’
“In the direct examination of Waylie A. Roup upon-the same subject we find the following:
‘Q. Tou have seen these two deeds here, one to Wayne A. Roup and one to Waylie A. Roup, Exhibits A and B ?
‘A. Yes, sir.
‘Q. Do you know anything - about these, or was there any talk to you about their being made before they were made ?
“‘A. Mother spoke to me about it.
‘Q. Was your father present on that occasion ?
‘A. I rather think he was.
“‘Q. What was said, — what did your mother say to you about it ?
‘A. She said she was going to get them made out for me and my brother. * * *
‘Q. Do you remember the occasion of the making of the deeds to yourself and Wayne ?
‘A. Yes.
‘“Q. Do you remember the occasion of their bringing them home ?
‘A. Yes. * * *
‘Q. What time was that you saw those papers ?
'“A. Eight o’clock at night.
“ ‘Q. Now, just state to the court what was said and what was- ° done when you saw these papers.
‘A. “ Here,” she says, “Waylie, is your deed, and here, Wayne,, is your deed.”
‘Q. What did she do, — hand them to you ?
‘A. Handed them to us, and had us read them over. After we read them over she said we might put them in the box.
“ ‘Q. Where was your father at this time ?
“‘A. In the house.
‘Q. Where was he ?
A. Right close by there. * * *
“ ‘Q. Then what did you do when your mother handed them to you?
‘A. Read them over, and put them in the box. * * *
‘Q. What box ?
“ 'A. In the box there that was used by the family to put our papers in.’
“I have quoted so much of defendants’testimony to show just what occurred at the time of the alleged delivery of the deeds. In passing, it is well to notice that the evidence in regard to what transpired the night of the return from Calkinsville, where the deeds were prepared and executed, was absolutely denied by the complainant, Clark A. Roup. But, notwithstanding the denial, the testimony nowhere shows that the father, the complainant in this case, ever delivered the deeds manually to the defendants, or had any talk with them about it. Hence we must look further, and determine whether, by his acts or by his nonaction, he was consenting’ to an absolute delivery on the evening of October 6, 1899. The talk in regard to the deeds was had with the mother, as the evidence shows, and she is not here to give her version of the conversation. Complainant did hot seem to take any active part in the talk between the mother and the sons, and when we examine these conversations there is nothing from which we can infer that the deeds were to be delivered presently. They were warranty deeds of the home, and only home, then owned by the complainant and his wife, Candace, and there was no reservation of any kind therein. The delivery of such deeds would, if delivered and accepted, immediately vest in the grantees all right and title to the lands, and complainant and his wife be wholly divested thereof, and subject to the whims and caprices of the defendants. This, to me, does not seem rational, and the future actions of the parties confirm me in the belief that it was not their intention. Defendants suggest that their father and mother would hold a life estate in the land; but that was not provided for in the deeds, nor was any such agreement shown or proven upon the hearing. This court could not change the agreements, if any, had between the parties; nor can it make bargains for the parties upon the hearing, but must consider them with the case as presented. Complainant and his wife, Candace, moved onto the farm in Marengo after the deeds were executed, carrying with them in the same shoe-box the papers and deeds, and took them more fully into their own possession and control, if possible, by putting them in their own bureau drawer in their own bedroom.
“ It is a well-settled rule of law that:
“ ‘The delivery of a deed implies a parting with the possession and a surrender of authority over it by the grantor at the time, either absolutely or conditionally, — absolutely if the effect of the deed is to be immediate, and the title to pass or the estate of the grantee to commence at once; but conditionally if the operation of the deed is to be postponed or made dependent on the happening of some subsequent event. A conditional delivery is and can only be made by placing the deed in the hands of a third person until the happening of the event on which the deed is to be delivered over by the third person to the grantee. But it is an essential characteristic and an indispensable feature of every delivery, whether absolute or conditional, that there must be a parting with the possession of the deed, and with all power and control over it, by the'grantor for the benefit of the grantee at the time of the delivery.’
“ This is the doctrine suggested by Prutsman v. Baker, 30 Wis. 644 (11 Am. Rep. 693). * * *
‘ ‘ In the case of Thatcher v. St. Andrew’s Church, 37 Mich. 368, the court said:
“ ‘ One of the essential-requisites to the validity of a deed, so as to pass the title, is delivery. Even although in all other respects it has been properly executed, yet it does not follow that the title to the property passes. The grantor yet retains control of the instrument, and may deliver it absolutely, conditionally, or not at all. The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction by a surrender of the instrument to the grantee, or to some third person for his use and benefit. The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument.’
“In the case of Stevens v. Castel, 63 Mich. 117 (39 N. W. 838), the court, in commenting upon the decision of Thatcher v. St. Andrew’s Church, said:
“‘If this be good law, — and I think it is, — it necessarily follows that any act presumptively a delivery will not be a delivery if the intent to make it such is wanting, or expressly negatived by the acts or words of the grantor.’
“ I think the authorities above quoted establish the true rule in these cases. It is clear that the question of delivery of deeds is a question of fact, and delivery in the lifetime of the grantor must be proven, and each case determined from its own state of facts. The deeds in question must have been delivered, if at all, so as to pass out of the control of the grantors, as before expressed, and that the intention was that they should operate as present conveyances of title. *. * *
“It becomes necessary, therefore, from the facts in this case to determine whether complainant delivered the deeds in question absolutely. I think there was not an absolute delivery on the'6th day of October, 1899, to take effect at the time; for there is no pretense that the deeds were delivered to a third person, to be a second time delivered after the death of complainant and his wife, Candace. Then, did the complainant part with the possession of the deeds, with all power and control over them, for the benefit of the grantees ? Had he any right, while the deeds were in the shoe-box in the bureau drawer, to take them, to control them ? The mere fact that the defendants had access to the drawer and to the shoe-box does not argue against the fact that the box belonged to complainant, and was his exclusive property, if he so desired to consider it. I am unable to understand how complainant could have been more possessed of, or had more control over, these deeds than has, developed by the testimony. Even had he put them in his coat pocket, and hung the coat up in his own room, defendants could have taken them had they so desired, and made just as reasonable a claim therefor. It is true it is claimed that, at the time of the alleged delivery, complaiüant was passive, and said nothing when the mother said, ‘Boys, here are your deeds.’ But was the mother the agent for the father at that time to act for him ? In the case of Harris v. Smith, 79 Mich. 54 (44 N. W. 169, 6 L. R. A. 702), the court said:
“ ‘No claim is made that the deceased, by any word of his, ever promised payment; but it is insisted that this promise, made by the mother in the presence and hearing of her husband, that the plaintiff should be paid, was binding upon the deceased. This would he true, with some additional elements. If the mother made the promise, in the presence and hearing of her husband, that the husband should pay the plaintiff wages for her services, and the husband knew that she continued her service in reliance upon the promise,, it would be such an acquiescence in the arrangement on his part that he would be bound by it, the same as though he had made the promise himself. This would amount to express authority on his part to the Wife to make the contract. But the law does not authorize the wife, acting as agent for the husband, to bind him by her contracts, except for necessaries.’
“With the understanding which the father now claims he had, and the object for which the deeds were clearly executed, it could not be claimed that he was consenting to a delivery of the deeds absolutely and in proesenti. Defendants were to have the deeds, if at all, when complainant and his wife were dead; and I am satisfied that they all so understood it, and that the exhibition of the deeds, by the mother to the sons was an assurance to them of what their father and mother desired to do for them after their death, and no thought occurred to any of them at. that time that there was a present delivery of the deeds.
“But stronger than any language appears the actions of all the parties concerned. After the execution of the deeds, and while they were in the shoe-box in the bureau drawer, complainant and his wife, Candace, dealt with the property in question the same as though the deeds had not been executed. They executed in their own name a mortgage against the lands for a part of the purchase price,. $600, and became personally liable for the payment. If' the property belonged to defendants, and it was clearly so understood, why did they not record their deeds and execute the mortgage, and become themselves personally liable therefor ? Later, when the mother called her oldest son to her bedside, and told him to put the deeds on record, — if she did so tell him, — why so long delay from October, 1900, to March, 1901, before he removed them from the shoe-box, and why were they kept from- record, after they were removed in the month of March, until', September 30th following ? There seems to be no sufficient answer to satisfy the mind of the court for this long delay. * * *
“If the deeds belonged to defendants, and they had been delivered to them as claimed, then it was entirely unnecessary for either of the defendants to surreptitiously take these deeds from the box in which they were kept, without the knowledge or consent of complainant, and place them upon record. And I do not understand now that defendants seriously claim that they are entitled to the absolute present possession and ownership of the land in question, or that they can sell or mortgage it without considering the rights of complainant. If this is true, then it must be true that these deeds were never intended to be delivered to them, or either. of them, at the time they were executed and brought home, October 6, 1899.”

The son Wayne did not appeal. The question involved is a question of fact. In addition to what appears in the opinion from which we have quoted, the complainant testified that, shortly before his wife died, the following paper was prepared and signed by himself and wife, to be pinned to the deeds, and that he supposed it was done; that after the deeds had been taken, while searching in his box for them, he found it pinned to one of his pension papers:

“Marshall, Mich., September 11, 1900.
“We do hereby certify that the deeds that we have-made over to Waylie and Wayne are not to be recorded, until after we are both dead, and then the two boys are to give Myrtie Henry a note for $500 for her share, to be paid out of the personal property as far as it goes, and the rest the boys must make up to her. After this is done,, then the deeds are to be Wayne’s and Waylie’s.
[Signed] ' “C. A. Roup.
“Mrs. C. A. Roup.” .

The solicitors for defendant insist that the paper is a forgery, but, if it is not, that the words “ we have made over ” indicate an understanding that the deeds had then been delivered. When taken in connection with where the deeds were, the other language in the paper, and where this paper was left, we think it indicates quite the contrary. It would not be profitable to recite the testimony in detail, but a careful reading of the entire record satisfies us the trial court made a right disposition of the question of fact., See Pennington v. Pennington, 75 Mich. 600 (42 N. W. 985); Burk v. Sproat, 96 Mich. 404 (55 N. W. 985).

It is strongly urged by counsel, under the principle that <l he wbo seeks equity must do equity,” that at least a lien should be given on the land to the defendant for the value of his services. The claim made by defendant in his sworn answer and his testimony upon the trial are inconsistent, and, when taken in connection with the other evidence, do not satisfy us of his right to any such relief.

The decree of the court below is affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    BERDAN v. MILWAUKEE MUTUAL LIFE-INSURANCE CO.
    1. Life Insurance — Insurable Interest.
    One who is dependent upon another for his support has an insurable interest in the latter’s life.
    '2. Same — -Application —Warranty — Material Facts —Rela-. tionship of Beneficiary.
    A statement in an application for insurance that the beneficiary was a nephew, when in fact he was no blood relation, but lived in the family of and was supported by the applicant, was not a misrepresentation of a material fact which would avoid the policy issued by a company (organized in Wisconsin) having a right by statute and its charter to insure a member for the benefit of any one having an insurable interest, although the statements were warranted to be true.
    S. Same — Guardian and Ward — Fraud in Settlement of Ward’s Claim.
    A petition for the appointment of a guardian for a minor alleged that the mother had abandoned the child nine years previously. In truth, the mother had not abandoned the child, but had arranged with the petitioner, his wife and sister-in-law, that they should care for the child as if it were their own. After the wife’s death, the sister-in-law took care of and supported the child, and at her death left a life policy for §1,000, in which the child was named as beneficiary. After the petitioner’s appointment as guardian, he settled with the insurance company for 5300, and nine days later notified the superintendent of the poor that he could not take care of the child. The mother protested against the appointment of the guardian as an unfit person. She also protested against the settlement, and warned the company that the guardian sought to get the insurance money for his'own purposes. The company ignored the protests. Held, that the settlement would be set aside as fraudulent, though it had been made under the authority of the probate court.
    4. Same — Equity Jurisdiction — Remedy at Law.
    Equity has jurisdiction to set aside a fraudulent settlement of a minor’s claim against an insurance company, made by his guardian under the direction of the probate court, as there is no adequate remedy at law.-
    Appeal from Bay; Shepard, J.
    Submitted November 20, 1903.
    (Docket No. 153.)
    Decided April 26, 1904.
    Bill by Harold F. P. Berdan, by nest friend, against the Milwaukee Mutual Life-Insurance Company and Frank Berdan, .to set aside a settlement of a claim under a policy of insurance. From a decree for complainant defendant company appeals.
    Affirmed.

      Isaac A. Gilbert ( Be Vere Hall, of counsel), for complainant.

      Harris & Kendrick, for appellant.
   Moore, C. J.

The complainant in this case was named as the beneficiary in a policy of insurance for $1,000 issued by the defendant company. The defendant Berdan was appointed as his guardian, and made a settlement with the company for $300. This bill was filed for the purpose of having the settlement set aside. A decree was entered setting aside the settlement, and decreeing defendant should account for the $300 obtained, and the defendant company be required to pay the remaining $700 and interest. The defendant company has appealed. The other defendant did not appeal.

Three defenses are interposed:' First, that the assured made a false statement of a material fact in the application for insurance when she stated the beneficiary was her nephew, when he was not related to her; second, that the settlement was made in good faith, after the probate court had authorized it to be made; third, that complainant had an adequate remedy at law. We will take up these defenses in the order stated above.

The record discloses that complainant, who at the time of the trial was about 11 years old, is the illegitimate child of a domestic who was at the time of his birth in the employ of Mr. and Mrs. Berdan. Miss Rebecca M. Quick was the sister of Mrs. Berdan, and an inmate of her family at the time of the birth of the child, and was about 45 years of age. The two sisters became attached to the child, and named it Harold F. P. Berdan. The mother of the child a little later went to Battle Creek, and the child passed into the custody of Mr. K--. Various proceedings were had, which it is not necessary to state here. About the last of November, 1892, Miss Quick went to Battle Creek, and arranged with the mother of the child to keep him as a member of the Berdan family; Miss Quick to be considered as his aunt, and Mr. and Mrs. Berdan to be known as his father and mother. Miss Quick took the child back with her under this arrangement, and from then on he was an inmate of the Berdan family, and did not know until after her death that Miss Quick was not his aunt. After Mrs. Berdan’s death, Miss Quick assumed charge of the Berdan household, and from her earnings paid all of the expenses thereof, except the rent, which was paid by Mr. Berdan. During this time the child was sent to school, and treated as a member of the family. In December, 1898, Miss Quick applied for insurance in the defendant company for $1,000, payable to Harold F. P. Berdan, nephew, and a policy was issued, payable to him. The premiums thereon were paid by Miss Quick. While on a visit at Gaines, having the child with her, Miss Quick died, on Memorial Day, 1900.

Under these circumstances, was the policy void ? The appellant answers this question in the affirmative, and bases the answer upon the following provisions contained in the application for and certificate of insurance:

“ * * * To whom do you desire the money to be paid in case of death ? State full name, and relationship to you, of beneficiaries, and how money shall be divided.— Harold F. P. Berdan, nephew. * * *
“ I hereby warrant that the answers and statements in the foregoing and in Part II of the application are full, complete, and true,to the best of my knowledge and belief. I covenant and agree that any misstatements made herein * * * shall forfeit and annul, without any proceedings on the part of the association or notice therefrom, all rights * * * named in the policy or policies which may be hereafter issued to me. * <* * ”
“The Fraternal Alliance, by this policy of insurance, agrees to pay the sum of one thousand dollars * * * to Harold F. P. Berdan, the nephew of the insured.
‘ ‘ This contract is made in consideration of the payment of the premium hereby required, and the written and printed application and medical examination for this policy, and of the agreements, statements, and warranties thereof, which are hereby made a part of this contract.”

—And upon section 1, law 28, of the code of laws of the Fraternal Alliance, which reads:

“ The statements and answers in the application for insurance are warranties, and if they are in any respect untrue, or if there has been any concealment or false statements contained in any application for insurance, * * * the certificate shall be void.”

Counsel say the statement in the application that the beneficiary was a nephew, when he was no blood relation, was a fraud upon the company, which vitiated the policy; citing Ferris v. Assurance Co., 118 Mich. 485 (76 N. W. 1041); Briesenmeister v. Supreme Lodge K. of P., 81 Mich. 525 (45 N. W. 977); Malicki v. Guaranty Fund Life Soc., 119 Mich. 151 (77 N. W. 690); Finch v. Modern Woodmen of America, 113 Mich. 646 (71 N. W. 1104); Mutual Benefit Ass’n v. Hoyt, 46 Mich. 473 (9 N. W. 497); Metropolitan Life-Ins. Co. v. O'Brien, 92 Mich. 588 (52 N. W. 1012); and other cases. These cases, we think, can be easily distinguished from the one at bar, as will more fully appear later. Some of them are cases where the beneficiary named was not an heir or a relation of the assured, and whose interests were not promoted by the continued living of the assured. Of these cases the courts say they are of the nature of wager policies, and void as against public policy. Others of the cases are where false material representations were made bearing-upon the desirability of the assured as a risk upon which to place insurance, which false representations might influence the company about accepting the hazard. In these-cases the courts have said the company was entitled to-the facts.

The defendant company is organized under the laws of Wisconsin, which have the following provisions:

Members’ Rights as to Beneficiaries. [Section 3, chap. 175, Laws 1895.] Any member of a society, order, or association organized in Wisconsin shall have the right to name as his beneficiary any person having an insurable interest in his life, or to make his insurance payable to his estate. Any such member shall also have the right to change the beneficiary named in his certificate of membership or policy without being required to obtain the consent of such beneficiary, by complying with the provisions of the by-laws of the corporation that issued such certificate or policy.” Ins. Laws Wis. p. 140, § 215.

The laws of the order contain, among others, the following provisions:

“ Objects oe the Order.

* * *

Third. To provide a benefit fund from which, upon the death of any male member who has fully complied with all the requirements of the order, a sum of not to exceed $3,000, and upon the death of any female member who has fully complied .with all the requirements of the order, a sum not to exceed $1,000, may be paid to such beneficiary or beneficiaries as may be designated by the member in accordance with the laws of the order.
Fourth. Any member shall have the right to name as his or her beneficiary any person having any insurable interest in his or her life, or to make the insurance payable to his or her estate, in conformity with the laws of the State of Wisconsin.”
“Benefit Certificate.
* * *
“ Sec. 2. Applicants shall enter upon their applications the name of such person or persons to whom they may desire the benefits paid: Provided, however, that any member desiring after-born children to participate as beneficiaries in his certificate may so designate them, subject to such future disposal of .the benefit as the member may thereafter direct, as permitted by the laws of the order; and the name of each beneficiary shall be entered upon the benefit certificate according to said directions.”

It will be observed that, under both the laws of the State and of the order, any person having an insurable interest in the life of the assured may be named as beneficiary. It has long been recognized that one who is dependent upon another for his or her support may have an insurable interest in the life of the person upon whom he is so dependent. Niblack, Acc. Ins. & Ben. Soc. (2d Ed.) § 195; Bacon, Ben. Soc. & Life Ins. (1st Ed.) § 261.

In Ballou v. Gile, 50 Wis. 614 (7 N. W. 561), it was said:

‘ ‘ In determining who is entitled to receive the benefits of the provisions made by a society of this kind, it is the duty of the court to construe its rules and regulations liberally to effect the benevolent purposes of the order, and in no case so to construe them as to defeat such purpose, unless the meaning of such rules and regulations is so clear and certain as to admit of no other reasonable construction. This was the rule adopted by this court in Schunck v. The G. W. & W. F., 44 Wis. 369, and in Erdmann v. Insurance Co., Id. 376, and it must be adhered to in this case.”

In Renner v. Benevolent Soc., 89 Wis. 401 (62 N. W. 80), the assured named as his beneficiaries “ my daughter and son-in-law, Josef and Josefa Votapek.” Josefa Votapek was no blood relation to the assured, but was a daughter of his wife by a prior husband. In disposing of the case, the c.ourt said:

“ No doubt, the court should construe the charter, constitution, rules, and regulations of.the defendant liberally, in order to promote the benevolent purposes of the order. Ballou v. Gile, 50 Wis. 614 (7 N. W. 561). This benevolent purpose is promoted by giving effect to the intention of the member who pays the sums necessary to procure the benefit, whenever that can properly be done. It is said that a leading purpose of the defendant’s existence, as expressed in its charter, is ‘.to assist and give pecuniary .aid to the widows and orphans of deceased members.’ There is no question that the persons named in the beneficiary certificate are the identical persons whom the member who paid the money wished to have the benefit. If, then, upon fair principles of interpretation, it appears that those beneficiaries are fairly included in the class of persons designated as ‘ orphans of the deceased,’ then all question of the correctness of the judgment of the trial court disappears. Now, it seems clear that if Josefa Votapek was, in a legal sense, the child of John Renner in his lifetime, then she was his ‘ orphan ’ after his decease. It is quite clear that, in a legal sense, she was his child during his lifetime. She was his wife’s daughter, *his stepdaughter. ‘ By marriage, one party thereto holds, by affinity, the same relation to the kindred of the other that the latter holds by consanguinity. ’ Spear v. Robinson, 29 Me. 531; Higbe v. Leonard, 1 Denio, 186; Simcoke v. Grand Lodge A. O. U. W., 84 Iowa, 383 (51 N. W. 8, 15 L. R. A. 114). In the beneficiary certificate she was designated as ‘my. daughter Josefa.’ This was strictly correct, for such was the legal relationship, by reason of the affinity between them. There is nothing in the defendant’s charter or constitution or rules which indicates that the word ‘ orphans ’ is used in any restrictive sense, or that it was intended to exclude from its proposed benefits any person who answered in legal sense to the designation of ‘ children ’ or ‘ orphans ’ of the deceased member. It is not expressly limited to those related by consanguinity, and cannot be so restricted by construction, in the absence from the context of words indicating such a designr So Josefa Votapek was eligible to bQ a beneficiary of John Renner.”

In Story v. Benefit Ass’n, 95 N. Y. 474, the assured obtained a certificate designating his wife as beneficiary. It was claimed, inasmuch as the assured had a living wife, from whom he had not been divorced, when he went through the form of a marriage with the beneficiary, and could have but one wife, that the plaintiff was not entitled to the fund as the widow of, and the beneficiary named by, the deceased. In holding that she was entitled to the fund, the court used the following language:

“ The object of the defendant’s association, as described in the constitution, was to provide for the relief of widows, orphans, and heirs of deceased members. The by-laws declare that, within 60 days after the death of a member, the board of directors shall cause to be ‘ paid over to his widow, and, if no widow, then to his children or their legal custodian, and, if no children, then to the person or persons (herein provided for) entitled to receive the same, as many dollars as there were members who paid the last assessment.’ In June, 1878, several years after Robert Story became a member of the association, the company issued to him a certificate certifying that he was a member of the association, and that, in accordance with the requirements of the ‘by-laws and articles of corporation,’ his wife, Mary Story, was designated as his beneficiary of all funds due and payable by the association in case of his death. The certificate was executed by the president, secretary, and treasurer of the corporation, under the corporate seal. The plaintiff testified that she knew of the insurance, and that, with one or two exceptions, she paid the assessments out of money she had earned by sewing, and this evidence was uncontroverted.
“We think the instrument of June, 1878, operated as an assent by the association to the appointment of the plaintiff as beneficiary of the fund which should become payable on the death of Robert Story, and entitled her, upon his death, in the absence of any other or different appointment, to demand and receive it. It may be true that the by-law which prescribes the obligation and duty of the association on the death of a member contemplated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company, so as to prevent it from recognizing as the beneficiary a person who might be designated by the member as holding to him the relation of wife. Such designation, made during the lifetime of the member, and assented to by the company, until changed by the mutual agreement of the member and the company, or at least until the arrangement was repudiated by one of the parties thereto, was binding. The nondisclosure by Story of' the prior marriage was not a fraud upon the association. Its obligation was not in anyway enlarged by making the-plaintiff the beneficiary. Nor did the appropriation of the-fund for her benefit contravene the policy or objects of the association. The plaintiff for 16 years lived with Story, believing herself to be his lawful wife. They had children dependent upon them for support. It was a case where-it was the duty of Story to provide for them, and the provision he made through this insurance was in entire accord with the objects of the defendant’s organization.”

In the case at bar, the beneficiary’was generally known as the nephew of Miss Quick. He was dependent upon her. He had an insurable interest in her life. He was eligible to be named as a beneficiary in the defendant society. Whether he was named as a nephew, or as one having an insurable interest, would not affect the question of the desirability of Miss Quick as a subject of insurance. There is nothing to indicate that the application would not have been accepted if all the facts as to the relationship between the assured and the beneficiary had been disclosed, and we think the policy was good..

Counsel say, the settlement having been made under the direction of the court, it is a complete defense. It is a somewhat significant fact that neither Mr. Berdan nor W. H. Andrews, who acted for the company, was sworn as a witness. In his petition asking for his appointment as guardian, Mr. Berdan alleged that:

“The mother of said child abandoned it about nine-years a,go, and has never contributed anything to its support. Said child was born out of wedlock, and the mother has since married, and to a person not the father of said child. Said child has been in the custody and control of your petitioner for about nine years, and is being raised as a member of his family, and as his own child.”

The record discloses that it was not true that the mother had abandoned the child, but, on the contrary, had made the arrangement with Miss Quick which has already been mentioned; and, as soon as she had knowledge of the proposed appointment of Mr. Berdan as guardian, she protested against his appointment, as an unfit person, and also protested against the settlement before it was made. It •also shows that Mr. Andrews, the agent of the company, was told by the husband of the mother of the child that Berdan was trying to get the money for his own use, and to this he replied: “You can look out for that; that is not my business.” Nor was it true the child had been in his custody and control, as indicated in the petition. The order authorizing the settlement was made April 4, 1901. As early as April 13th of the same year Mr. Berdan notified the superintendent of the poor that he was not able to support the boy, and to write to his mother. The superintendent did so. On the 16th of April she sent him money to pay his railroad fare to Albion. When these facts are considered in connection with the further fact that a claim of $1,000 alleged to be due to a minor was settled for $300, we do not think it can be said the settlement was free from fraud and made in good faith.

Can it be said the complainant had a complete and adequate remedy at law, which should .prevent the chancery court from taking jurisdiction ? We think that question should be answered in the negative, under the following decisions: Maney v. Casserly, 134 Mich. 252 (96 N. W. 478); Lothrop v. Duffield, 134 Mich. 485 (96 N. W. 577); John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086).

The decree is affirmed, with costs.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.

        Supreme Tent K. O. T. M. v. McAllister, 132 Mich. 69 (92 N. W. 770), is a similar case.


author: Montgomery, J.

text:
    MARX v. McMORRAN.

    1. Estates of Decedents — Administrators — Attorney’s Services — Compensation.
    Where an administrator knows that an attorney is rendering-services which are beneficial to the estate, and interposes no. objection, the estate should pay for the services, although there was no contract which would make the administrator personally liable.
    2. Same — Trial—Brief.
    An attorney who performs services beneficial to the estate of a decedent should receive pay for the preparation of a brief' as well as for the time spent in the trial of a case.
    Error to St. Clair; Law, J.
    Submitted February 3, 1904.
    (Docket No. 71.)
    Decided April 26, 1904.
    Henry F. Marx presented his final account as administrator of the estate of Albert Meswald, deceased. The account was allowed in the probate court, and Henry MeMorran, administrator of the estate of Sarah C. Meswald, deceased, appealed to the circuit court. From a judgment for appellant, said Marx brings error.
    Modified and affirmed.

      James A. Muir (Orla B. Taylor', of counsel), for appellant (Marx).

      Phillips & Jenks and Goulder, Holding & Hasten,, for appellee.

       Rehearing denied January 30, 1905.

   Montgomery, J.

This case comes before us for review of the account of Henry F. Marx, administrator of the estate of Albert Meswald, deceased. The account was. presented in the probate court and allowed, whereupon Henry McMorran, administrator of the estate of Sarah C. Meswald, deceased, appealed from the order of allowance. On a trial of the case in the circuit court a special finding of facts and law was made. ,The account was very largely reduced,- and Marx, administrator, has brought the case here for review. The items in dispute are the attorney fees charged by Mr. O. O. Pinney and Mr. James A. Muir for services in connection with the administration of the estate of Albert Meswald.

The record is voluminous, containing, as it does, the entire testimony taken on the trial. The briefs discuss-numerous questions, but, as it was practically conceded by the appellant in his reply brief that the only question which we need consider is the question of the allowance of attorney fees to Mr. Muir and Mr. Pinney, we will, limit our discussion to such questions as bear directly upon, the points presented affecting the amount of the allowance.

It appears that Albert Meswald and his wife, Sarah C. Meswald, were both aboard the propeller Wokoken when she foundered on Lake Erie, October 14, 1893, and that both perished in this disaster. As to which died first is not now necessary to determine. On October 21, 1893, John Mitchell, a brother of Sarah O. Meswald, was appointed administrator of the estate of Albert Meswald by the probate court of Cuyahoga county, Ohio, upon a petition which alleged that the decedent was domiciled in St. Clair county, Mich., at the time of- his decease. Letters were issued authorizing Mitchell to administer upon the estate of the decedent situated in the State of Ohio. O. C. Pinney, a lawyer at Cleveland, was then employed as attorney of Louis Meswald, an uncle of Albert Meswald, to look after the interests of Meswald. It was through Pinney that the services of Mr. Muir, of Port Huron, were enlisted, and from this date a legal contest has been, waged between the heirs of Albert Meswald and the heirs of Sarah C. Meswald.

Among other steps taken by the heirs of Albert Meswald, the appointment of a general administrator by the probate court of St. Clair county was secured; Mr. Albert J. Gilchrist being first appointed, and thereafter, upon his resignation in November, 1894, the present administrator, Henry F. Marx, being appointed. As the representative of Marx, administrator, and Louis Meswald, Mr. Pinney took steps in the courts of Ohio to secure the transfer of the fund to the State of Michigan.

It would be as tedious as the counsel on either side were apparently untiring for us to pursue in detail in this opinion, step by step, the various motions, cross-motions, appeals, and trials which were entered upon having in view the end of transferring this fund to Michigan, where it unquestionably belonged. On the one side it is averred that Mr. Pinney and Mr. Muir engaged in useless litigation, were unnecessarily and unusually active, and that the result might have been reached without incurring the large expense to the estate with which it is now sought to charge it. We agree that the finding of the circuit judge that there is some justice in this claim is correct. The result might have been reached more directly. On the other hand, it is beyond question that Mr. Mitchell and his counsel placed in the way of Mr. Pinney and Mr. Muir obstacles at almost every step, and waged an unjustifiable contest against their efforts to secure the transfer of this fund to Michigan. The circuit judge found that Mr. Pinney and Mr.' Muir dictated who should be appointed administrator, and found that Mr. Pinney and Mr. Muir were never employed by either of these administrators, Gilchrist or Marx, in such manner as would bind the administrator personally, or in any such manner as should equitably bind the estate, except as specifically set forth.' He further found that an administrator is not interested in any contest between heirs; that the question as to whom the estate ultimately goes is not one that interests the administrator; but that successful litigation, although instituted for an heir, or under such circumstances that the heir might be primarily liable, may in some instances be a proper charge against the estate; and he proceeded to make certain allowances to the attorneys upon this basis. The finding that these administrators never employed the attorneys in such manner as to personally bind the administrator is supported by the testimony. But we think no .other .conclusion can be reached from the testimony than that the administrators were both cognizant of the services which were rendered by Mr. Pinney and Mr. Muir, that they interposed no objection to it, and that it was expected that for such services as were distinctly beneficial to the estate the estate would be expected to pay. Gilchrist, in effect, testifies to this.

The only question that has given us trouble is the question what would be a reasonable allowance, taking into account the amount of the estate and the character of the services rendered. The counsel for the appellant concede the propriety of the court taking into account the amount of the estate in determining the amount of charges which should be fixed. As the evidence is undisputed as to the services rendered and expenses incurred, it only remained for the court to determine what a reasonable and proper .allowance should be in each case.

The allowance made to Mr. Muir was $351.25. This allowed him for the bare time employed in the trial of a •case at Cleveland, without any allowance for preparation •of brief. It excluded one item of services at Marine City, and expenses. We think that this allowance should be increased $88.50, making the allowance to Mr. Muir $439.75 for services and expenses.

There was allowed to Mr. Pinney for services in preparation for trial, seven days, and all the expenses incurred, and time in taking depositions, in preparation of preliminary brief, charges paid to witnesses, stenographer, etc., •on this trial, the meager sum of $100, the expenses alone .amounting to $51.68. The servicesfor this protracted contest were reasonably worth $250. There was also charged by Mr. Pinney, for services in contesting the final account •of John Mitchell, administrator, and expenses, $300. The finding of the circuit judge treats $150 as a reasonable charge for this, and, as Mr. Pinney received $150 in all from Louis Meswald, applies this in payment of this service. We think this unfair to Mr. Pinney. Other services were rendered by Mr. Pinney, which had direct relation to the contest between Meswald and the heirs of' Mrs. Meswald, to which the payment received from Meswald would more properly apply. We think an allowance-of $150 should be made to Mr. Pinney on this account. There should also be allowed to Mr. Pinney for services in the claim against the Arbeiter Bund the sum of $25. These additions to the account as allowed by the circuit judge would make the allowance to Mr. Pinney stand $746.68.

The order of the circuit judge will be modified. Th& allowance will stand, as stated: To Henry F. Marx, $339.96; on accountof James A. Muir’s services, $439.75;, on account of the services of O. C. Pinney, $746.68; and,, as so modified, will stand affirmed. The costs of the proceedings in this court will be chargeable against the estate.

Moore,C. J., Carpenter and Hooker, JJ.,concurred.. Grant, J., took no part in the decision.


text:
    SMITTON v. SEIBERT.
    1. Chattel Mortgages — Foreclosure—Fraud.
    The fact that a stock of goods was sold on mortgage foreclosure for a small percentage of its value does not of itself establish fraud in the sale.
    2. Same — Exemptions—Invalid Sale.
    Where a surviving partner gave a chattel mortgage upon the partnership property for the benefit of the firm’s creditors, subject to his exemptions, which he did not select, and the goods were sold on foreclosure to the surviving partner’s wife for a small percentage of their value, and the attorney for the surviving partner and the mortgagees, who acted as. auctioneer and also as agent for the purchaser, stated that the sale would be subject to the exemptions of the surviving partner and any claim of exemption by the estate of the deceased partner, the sale was set aside upon the complaint of the administratrix of the deceased partner.
    3. Same — Auctioneer as Agent for Buyer.
    On the foreclosure of a chattel mortgage, it is improper for the auctioneer to act as agent for the buyer.
    A Same — Resale—Accounting. ,
    Where a sale under a chattel mortgage is set aside, the purchaser at the invalid sale, should be permitted to bid at the resale, and apply on the purchase price the sum paid on the first sale, less the receipts from sales of goods while in her hands.
    Appeal from Sanilac; Beach, J.
    Submitted February 4, 1904.
    (Docket No. 77.)
    Decided April 26, 1904.
    Bill by Minnie Smitton, administratrix of the estate of' William L. Smitton, deceased, against Michael L. Seibert and Billa Seibert, to set aside a foreclosure sale. From a. decree dismissing the bill, complainant appeals.
    Beversed..

      G. F. Gates, for complainant.

      F. F. Burton, for defendants.
   Montgomery, J.

The complainant’s husband, William L. Smitton, and the defendant Michael L. Seibert were copartners in business in the village of Márlette, Sanilac county, from October, 1899, until December, 1900, when Mr. Smitton died. At his death the assets of the-firm consisted of a stock of goods and a few accounts, the aggregate value being, at the inventoried price, $3,570.95. The defendant Michael L. Seibert, as surviving partner, paid some small items of indebtedness in the village, but, finding that the indebtedness of the firm substantially equaled the assets, he gave a trust mortgage to secure debts of the firm amounting to $3,374.69, running to. Daniel C. Merrill and Charles C. Hubbell, of Marlette. This mortgage was given reserving from the lien the mortgagor’s exemptions of $250. Proceeding under this mortgage, the trustees advertised and sold the property under the mortgage. Mr. Burton, who was the attorney for Mr. Seibert, also acted as attorney for the trustees in the mortgage and as auctioneer on the sale. The property was offered for sale subject to the exemption of Mr. Seibert, and subject to any claims for exemption which the complainant might have as the representative of her deceased husband. At the sale Mr. Burton made bids in behalf of Mrs. Seibert. There were various other bidders, six or •eight in number, and the bidding was kept up for some time, until the property was finally struck off to Mrs. Seibert for the sum of $950, and the money was distributed •among the creditors of the firm.

This bill is filed by the administratrix, alleging that this sale was fraudulent and a mere sham, and asking that the same be set aside. There was testimony tending to show that, on sales of property of this character, a price of 60 to 75 cents on the dollar would be regarded as a good price. In the present case the property brought less. But if there was an entire absence of fraud, or anything tending to depreciate the value of the property, this does not furnish a justification for setting aside the sale. The •circuit judge, who heard the testimony, was of the opinion that no fraud had been made out, and that the sale was bona fide.

There can be no doubt on the record that Mrs. Seibert furnished the money from her own funds to purchase this ■stock, and, if this were the only question presented in the case, we would think the finding of the circuit judge fully justified. But the bill sets out all the facts, and it is appropriately framed to justify such relief as we shall find the complainant entitled to. We think -the manner of this sale was not such as to be calculated to produce the best price for the goods. The statement of the auctioneer that the purchaser would buy subject to any demand of complainant of exemption, particularly as it is not clear that the complainant was making any claim to exemption, and the fact that Michael L. Seibert had not himself chosen to take out his exemption from the goods, resulted in a bid upon the property a small percentage of its value.

The dual position which Mr. Burton occupied, of seller and agent of the buyer, is not approved in the law, and, while no wrong purpose is shown, we’ think the burden of showing clearly that a fair price was realized has not been met.

We think that, under this bill as it is framed, we are justified in ordering a resale of this property. The complainant asks that the defendants be charged with the inventoried price of the goods. We think this would be unjust in any view. We think that a receiver should be appointed, that the defendants should be charged in the accounting with what they have received for the goods, and credited with the payments which they have made, including a reasonable compensation to the trustees under the mortgage and the attorney, and that the remaining goods, if they can be ascertained, should be resold, and the proceeds turned into thp hands of the receiver, and be by him paid out to the creditors of the late firm. On the sale of the goods the defendant Billa Seibert will be permitted to bid, and will be permitted to apply so much of the sum paid by her to the trustees upon the former purchase as remains after deducting whatever she may have received upon sales. The defendant Michael L. Seibert will be permitted to select from the goods on hand his exemption, amounting to $250. The defendants, at their election, may have a reference to ascertain and report the actual value of the goods received by them, less the exemption, and, upon the defendant Billa Seibert paying to the trustees for the use of creditors the balance over and above the $950 already paid, the goods will be discharged from any claim in favor of complainant. The complainant will recover costs of this court.

Moore, C. J , Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


text:
    PIKE v. RICHARDSON.
    1. Taxation — Sale—Redemption—Construction of Statutes.
    Statutes providing for redemption from tax sales should be construed liberally in favor of the landowner.
    2. Same — Service of Notice on Landowner — Sheriff’s Return.
    1 Comp. Laws, § 3959, provides that no writ of assistance for the possession of land acquired under tax proceedings shall issue until six months after there shall have been filed with the county clerk a return by the sheriff showing service of the prescribed notice upon the original landowner. 1 Comp. Laws, § 3960, provides that the landowner may redeem within six months after personal service of such notice. Held, that personal service is not complete until the filing of the return with the county clerk, and that redemption may be made within six months after that date.
    Appeal from Cheboygan; Shepherd, J.
    Submitted February 4, 1904.
    (Docket No. 209.)
    Decided April 26, 1904.
    Bill by Mark M. Pike and Hamilton J. Butler against Fred L. Richardson and Abbie Richardson to redeem from a tax deed. From a decree for complainants, defendants appeal.
    Affirmed.

      Frost & Sprague, for complainants.

      O. S. Beilley and H. K. Gustin, for defendants.
   Montgomery, J.

Complainants are the original •owners of certain land in Cheboygan county, and file this bill to redeem from the holders of a tax title. The defendants, acting under section 140 of the tax law (1 Comp. Laws, § 3959), caused the notice prescribed by that section to be served in December, 1901, but the return of the sheriff was held in the office of the defendants’ attorney until December, 1902. In the meantime, but after the lapse of six months, complainants sought to. redeem, but were met with the claim that the time for redemption had expired. The case, therefore, involves a construction of sections 140 and 141 of the tax law.

Section 140 contains the following:

“No writ of assistance or other process for the possession of any land [acquired under tax proceedings] shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated a return by the sheriff of said county showing that he has made personal service, or until substituted service, as hereinafter provided, has been made,” etc. .

Section 141 provides that the original owner—

“ Shall be entitled to receive from the person so claiming under and by virtue of such tax deed, at any time within six months after the personal service of such notice, or the date of mailing said notice by registered letter, * * * a reconveyance of such interest in such lands, * * * upon payment * * * of the amount paid upon such purchase, together with one hundred per cent, in addition thereto, and the lawful fees or costs for such personal service, * * * and the further sum of five dollars for each ■description.” Act No. 204, Pub. Acts 1899.

The circuit judge held that these two sections should be construed together, and that, so construed, the time for redemption is coterminous with the period during which the holder of the. tax title may not take action. It must be conceded that the statute is open to a different construction, and it is with some hesitation that we adopt that of the circuit judge. But on full consideration we are led to the conclusion that the legislative intent was that these two periods should be coterminous, and that, when personal service is referred to in section 141, a service completed by filing a return is intended. The statute may be so construed without doing violence to its terms, and we adopt it in the light of the rule that statutes providing for redemption are to be liberally construed in favor of the redemptioner. See Black, Tax Titles, §. 350. See, also, West v. Duncan, (C. C.) 42 Fed. 430; Berthold v. Hoskins, (C. C.) 38 Fed. 772.

The decree is affirmed, with costs.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.


text:
    PAYNE v. UNION LIFE GUARDS.
    1. Life Insurance — Conditions of Policy — Violation of Laws; of Land.
    Under a life-insurance policy providing that the company should not be liable on account of the death of the insured while violating the laws of the land, the company is not liable if the insured came to his death while engaged in an affray in which he was the aggressor.
    2. Witnesses — Credibility—Question for Jury.
    Wherever the circumstances are such as to raise a question as to the credibility of a sole witness to a transaction, the case should be submitted to the jury.
    3. Same — Contradictory Statements.
    Where a sole witness to a transaction is shown to have made contradictory statements, the case should be submitted to the-jury.
    Error to Bay; Shepard, J.
    Submitted February 23, 1904.
    (Docket No. 95.)
    Decided April 26, 1904.

      Assumpsit by Andrew W. Payne against the Union Life Guards on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Joseph H. Cobb (Lee E. Joslyn, of counsel), for appellant.

      Pierce & Kinnane, for appellee.
   Montgomery, J.

This is an action on a policy or benefit certificate issued to plaintiff’s father, Andrew W. Payne. The testimony shows the decease of Andrew W. Payne, Sr., while in good standing, and that, by the terms of the policy, there is due to plaintiff $632.15, the amount recovered below, unless the defense offered was established. All the errors assigned are devoted to rulings made upon the trial o'f this issue. A by-law, which is made a part of the policy, contains a provision that “no benefit shall be payable on account of the death of any member * * * while violating the laws of the land.” Andrew W. Payne, Sr., came to his death by violence at the hands of one George Hossler. It was the claim of the defendant that, when the deathblow was administered, deceased was engaged in an assault upon Hossler. The circuit judge charged the jury upon this subject as follows:

“ The one simple thing for you to determine is, Who was the aggressor ? Did Andrew Payne intend to bring about this controversy, start an affray, an assault, which resulted, unfortunately, in his death ? If he did; if he was doing something that was in violation of the criminal law of the land, of the State; that is, seeking to assault or commit an assault and battery upon the person of the man Hossler, — and brought about the affray which resulted in his death, he was violating the law of the land, and the plaintiff cannot recover. * * *
“If you find that Andrew W. Payne, the insured, went to the house of George Hossler, and that he then and there, by means of any words spoken, did maliciously threaten any injury to the person of the said George Hossler, with intent to extort money or any pecuniary advantage, or with intent to compel said George Hossler to return his lumber or pay him for the lumber against his will, or to compel the said Hossler to do or refrain from doing any act against his will, and, as a result of such threats, a fight was brought on, then I charge you that the insured met his death while, violating the laws of the land, and your verdict must be for the defendant.”

These instructions, with further amplifications, which need not be set out at length, submitted fairly the question involved.

But it is contended that the testimony of Maud Hossler, the wife of George Hossler, the only witness to the affray, •'conclusively showed that deceased was the aggressor, and that therefore a verdict should have been directed for defendant. There are two answers to this contention: First. The surroundings were such as to raise a question .as to the witness’ credibility, and, whenever this is the •case, the jury is entitled to pass upon the question. Molitor v. Robinson, 40 Mich. 200; Dibble v. Assurance Co., 70 Mich. 1 (37 N. W. 704, 14 Am. St. Rep. 470); Schulz v. Schulz, 113 Mich. 506 (71 N. W. 854). Second. There was testimony which tended to contradict Maud Hossler in material points, by showing contradicting statements.

Other questions are discussed in the brief of appellant’s •counsel, but our views upon these questions were indicated at the argument. A re-examination of these questions has failed to convince us that any damaging error of which appellant is in position to complain was committed.

The judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    LAGOO v. SEAMAN.
    1. Justices op the Peace — Costs—Certiorari.
    1 Comp. Laws, § 950, providing that no judgment of a justice of the peace shall be reversed on certiorari on account of any fees having been improperly allowed, applies to cases where the question comes up on particular allowances which the justice had power to consider, and not to a case where the amount allowed was in excess of the sum permitted by a particular statute.
    2. Same — Log-Lien Law.
    1 Comp. Laws, § 838, limiting costs in justice’s court to 510, does not apply to special proceedings under the log-lien law (3 Comp. Laws, § 10756 et seq.), the language of which (sections 10761, 10767,10769) clearly indicates that the legislature, did not intend that the costs should be limited.

      3. Same — Constitutional Law — Class Legislation.
    The log-lien statute, in allowing full costs in justice’s court, is not unconstitutional as class legislation, although under other statutes the costs are limited.
    Case made from Wexford; Chittenden, J.
    Submitted February 23, 1904.
    (Docket No. 161.)
    Decided April 26, 1904.
    Attachment proceedings under the log-lien law by Joseph Lagoo against Drayton Seaman. There was a judgment for plaintiff,, and defendant assigns error.
    Affirmed.

      I. O. Wheeler (F. F. Sawyer, of counsel), for appellant.

      Fred G. Wetmore, for appellee.
   Carpenter, J.

Plaintiff recovered a judgment before a justice of the peace in the county of Wexford under Act No. 229, Pub. Acts 1887 (sections 10756-10770, 3 Comp. Laws), establishing a lien for labor and services upon lumber, shingles, etc., for $34.14 damages, and $12.47 costs of suit. Defendant claimed “that the justice had no jurisdiction to render judgment for costs exceeding $10,” and obtained a writ of certiorari from the circuit court to “correct the judgment in that respect.”' The circuit judge affirmed the judgment. Defendant brings the case to this court by writ of error.

Plaintiff contends that the statute (section 950, 1 Comp. .Laws) providing that “no judgment of a justice shall be reversed merely for the omission or misrecital of an oath, mor on account of any fees haying been improperly allowed by such justice,” prevents the circuit court and this court from entertaining this application. This contention is answered by Wilcox v. Powder Co., 44 Mich. 35 (5 N. W. 1091), where it was held:

“ The statute preventing a reversal for improper allowance of fees by a justice [the statute under consideration] does not cover a case expressly governed by another statute for costs generally, where the question does not come up on particular allowances which the justice had power to consider.”

The statute which authorizes these proceedings requires the sheriff to attach.the property (section 10761, 3 Comp. Laws) “to satisfy the claim of the plaintiff, with all costs and disbursements, charges and expenses,” and directs the property tó be sold (section 10767) “to satisfy such judgment, and all costs, charges, and disbursements,” and directs the officer making the attachment (section 10769) to “pay the boomage or storage on such products during the time he shall have the custody, * * * and return the amounts so paid on the writ, which shall be included and taxed in the bill of costs or disbursements.” Does section 838, 1 Comp. Laws, limit these costs to $10 ? Section 838 reads as follows:

“Whenever a judgment shall be rendered by any justice of the peace against any party, unless otherwise herein provided, it shall be with costs of suit; but the whole amount of all the items of such costs shall not exceed ten dollars.”

I think this question is answered by the decision of this court in Dibell v. Brinkerhoff, 22 Mich. 371. There the court was called upon to determine whether this statute limited the costs in proceedings under the forcible entry and detainer act. The jurisdiction of the justice to proceed under the forcible entry and detainer act was given by way of an amendment to the forcible entry and detainer act, which constituted chapter 150, 2 Comp. Laws 1857, while the section limiting costs was a part of the general act in reference to justices’ courts, which was contained in chapter 117, 2 Comp. Laws 1857. The court held that the statute limiting costs did not apply to the costs in question, saying:

“And we think it quite clear that section 127 of the justices’ act [the section now under consideration], limiting costs in justices’ courts, has no reference to costs in these special proceedings. This limitation applies only to cases of which justices had jurisdiction under that act, or of which they might have jurisdiction byway of amendment to that act.”

This reasoning, however, did not entirely dispose of the question. Though it was not the intent of the legislature, in enacting section 838, to make it applicable to special proceedings, it might nevertheless apply to those proceedings if the legislature, in authorizing them, intended that it should; and the opinion therefore proceeds:

“ It is therefore very clear that, when a justice of the peace proceeds to try one of these special proceedings, he derives all his power to do so from, and must in all respects be governed by, chapter 150 and the acts amendatory thereof, and that he cannot invoke, nor is he bound by, any of the provisions of chapter 117, except so far as chapter 150 ■or its amendments may have adopted certain provisions of the former as substantially a part of the latter.”

The opinion then proceeds to show that, by sections 9 and 18 of chapter 150, the amount of costs in forcible entry and detainer proceedings is unlimited.

The proceedings under consideration are special proceedings. The statute limiting costs does not, under the authority of Dibell v. Brinkerhoff, extend to them, unless it was the intent of the legislature, in authorizing these special proceedings, that it should. The act authorizing "these proceedings contains nothing to indicate that intent. On the contrary, the language in the act heretofore quoted clearly indicates that it should not. The fact that the provision for costs in proceedings in justice’s courtis in the same language as that for proceedings in the circuit court also indicates that these costs are not limited to $10.

It is contended by defendant that section 10767, if construed to authorize plaintiff to recover costs in excess of $10, is unconstitutional on the ground that it is an unjust discrimination between classes. In support of this contention counsel rély upon the decision of Grand Rapids Chair Co. v. Runnels, 77 Mich. 104 (43 N. W. 1006), in which it was held that a provisions for an attorney fee of $5 in proceedings under this act was unconstitutional. This decision rests upon the authority of Wilder v. Railway Co., 70 Mich. 382 (38 N. W. 289), Schut v. Railway Co., 70 Mich. 433 (38 N. W. 291), and Lafferty v. Railway Co., 71 Mich. 35 (38 N. W. 660). The question before the court in these cases related to the constitutionality of that portion of Act No. 234 of the Public Acts of 1885 providing for an attorney fee of $25 where recovery was had against a railroad company for damages done to cattle or other animals. It was held that this provision was unconstitutional, the court saying:

“The legislature cannot make unjust distinctions between classes of suitors without violating the spirit of the Constitution. Corporations have equal rights with natural persons, as far as their privileges in the courts are concerned. They can sue and defend in all courts, the same, as natural persons, and the law must be administered as to them with the same equality and justice which it bestows upon every suitor, and without which the machinery of the law becomes the engine of tyranny. This statute proposes to punish a railroad company for defending a suit brought against it with a penalty of $25 if it fails to successfully maintain its defense. The individual sues for the loss of his cow, and, if it is shown that such loss was occasioned by his own neglect, and through no fault of the company, and he thereby loses his suit, the railroad company can recover only the ordinary statutory costs of $10 in justice’s court, but, if he succeeds because of the negligence of the company, the plaintiff is permitted to tax the $10 and an additional penalty of $25; for it is nothing more or less than a penalty. Calling it an ‘attorney fee’ does not change its real nature or effect. It is a punishment to the company, and a reward to the plaintiff, and an incentive to litigation on his part. This inequality and injustice cannot be. sustained upon any principle known to the law. It is repugnant to our form of government, and out of harmony with the genius of our free institutions.”

This reasoning has no application to this case. To allow suitors in proceedings under a special statute to recover their full costs is by no means an unjust discrimination because suitors under other statutes are denied them. This very point, though not discussed, was necessarily decided in Dibell v. Brinkerhoff, heretofore cited.

The judgment of the circuit court is affirmed, with costs.

The other Justices concurred.


text:
    PIERCE v. BOARD OF SUPERVISORS OF GLADWIN COUNTY.
    Boards of Health — Contagious Diseases — Contracts—Liability of County.
    Where the members of a board of health, without holding a meeting, employed a physician to treat persons sick with contagious diseases, and afterwards, at a regular meeting, itemized bills for the services were presented and duly allowed, the board of supervisors could not refuse to pay the bills oh the ground that the physician was not employed at a meeting of the board of health. Township of Cedar Greek v. Board of Sup’rs of Wexford Co., 135 Mich. 124, followed.

      Certiorari to Gladwin; Sharpe, J.
    Submitted February 23, 1904.
    (Calendar No. 20,377.)
    Decided April 26, 1904.

      Mandamus by Frank S. Pierce to compel the board of supervisors of Gladwin county to allow certain claims for medical services rendered in cases of contagious diseases. From an order granting the writ in part only, relator brings certiorari.

    Reversed.

      F. E. Emerick, for relator.

      F. L. Prindle, for respondent.
   Moore, C. J.

This is eertiorari to review the action of the circuit judge in refusing the writ of mandamus to compel the board of supervisors of Gladwin county to allow the claims as charged of the relator, a physician, for services rendered by him in cases of infectious disease. The circuit judge was of the opinion' that some of the claims should be allowed, and so ordered, but was also of the opinion, as the original hiring of the relator was not by the board of health, acting as a board and at a regular meeting thereof, that, under Young v. County of Blackhawk, 66 Iowa, 460 (23 N. W. 923), the claims should not be allowed.

As to the rejected claims, the record shows that, after the disease appeared, the relator reported the facts to the members of the health board, and they conferred with each other, and, without calling a regular meeting of the board, they employed the relator. As expressed by Mr. Taylor, the township clerk:

“We, as members of the board, authorized him to go ahead and look after it. We met the doctor at the store, and had this talk. In each* specific case we told him the same thing. There was no formal action of the board. He reported to me and the supervisor.”

The record shows that the relator was either employed at a formal meeting of the board, or was employed by the members of the board informally, as described by Mr. Taylor; and the members of the board had knowledge that the services were being rendered. After they were rendered, itemized bills for the services were presented at regular and formal meetings of the board, and were duly allowed. The questions involved are passed upon in the very recent case of Township of Cedar Creek v. Board of Sup’rs of Wexford Co., 135 Mich. 124 (97 N. W. 409). In the opinion in that case the discussion is so full, and the citation of the cases so complete, we do not deem it necessary to do more than call attention to the case.

This case will be remanded, with directions that the writ issue as prayed.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.


author: Per Curiam.

text:
    STURGE v. BOARD OF SUPERVISORS OF GLADWIN COUNTY.
    Boards op Health — Contagious Diseases — Liability op County.
    Case ruled by Pierce v. Board of Siip’rs of Gladwin Co., ante, 423.

      Certiorari to Glaclwin; Sharpe, J.
    Submitted February 23, 1904.
    (Calendar No. 20,378.)
    Decided April 26, 1904.

      Mandamus by Arthur S. Sturge to compel the board of supervisors of Gladwin county to allow certain claims for medical services rendered in cases of contagious diseases. From an order granting the writ in part only, relator brings certiorari.

    Reversed.

      F. E. Emerick, for relator.

      F. L. Prindle, for respondent.
   Per Curiam.

This case is on all fours with Pierce v. Board of Sup’rs of Gladwin Co., ante, 433, in which an opinion is just handed down, and is governed by it.

The case is. remanded, with directions that the writ issue as prayed.


author: Hooker, J.

text:
    SPRAGUE v. MOORE.
    1. Trusts — Decree—Compensation op Solicitor.
    A decree providing that, before distribution of a deceased: beneficiary’s interest' in a trust fund, a deduction should be made for the compensation of her administrator, who was the complainant in the suit, and his solicitor, does not authorize compensation to a solicitor for one of the defendants, who, while acting primarily for such defendant, assisted the complainant as counsel.
    3. Same.
    Under a decree limiting an allowance to complainant to such-an amount as would compensate him for certain proceedings-which he had been required to take, a solicitor for one of the defendants, acting as counsel for complainant, cannot claim compensation, as complainant was under no obligation to-compensate him.
    3. Attorney and Client — Duty op Attorney — Benefit of-Client.
    An attorney’s duty to his client does not require him to maintain positions which do not accord with his ideas of law and. justice, although they may tend to the advantage of hie client.
    4. Trust Funds — Allowances—Mandatory Decree.
    A decree of the Supreme Court providing that, beforo distribution of a trust fund, a deduction should be made from a deceased beneficiary’s interest sufficient to compensate her administrator and his solicitor for their services and disbursements in certain litigation, which were to be allowed by the-court on final accounting, and that the court should also make a reasonable allowance out of the trust fund for the services of counsel and expenses in certain other litigation, is, mandatory upon the circuit court.
    5. Same — Directory Provisions — Appeal.
    A decree of the Supreme Court which reserves the right to-complainant and the trustee of an estate to apply to the circuit court, before final distribution, for special allowances for services of counsel and expenses of an accounting, is directory only, and the propriety of an allowance should be adjudged before it is made; but, if the allowance is one that, should have been held proper, it will not be disturbed because made without the approval of the court.
    6. Same — Solicitor’s Compensation.
    Where, on a bill to compel an accounting and the distribution of a trust estate, the services of complainant’s solicitor are adverse, rather than beneficial, to the trust fund, he is not entitled to compensation therefrom.
    Gross-appeals from Wayne; Brooke, J.
    Submitted February 4, 1904.
    (Docket No. 35.)
    Decided April 26, 1904.
    Bill by Thomas S. Sprague against Irene Sprague Moore, as trustee, as guardian, and individually, Rollin C. Sprague, George H. Sprague, Mary A. Stofflet, Ida L. Taylor, and Gracie Deats, for an accounting, and the distribution of a trust estate. From certain allowances made on settlement of decree, all parties appeal.
    Modified.

      George W. Radford and Gray & Gray, in pro. per. and for complainant.

      Moore & Moore, for defendants, except Rollin O. Sprague.
   Hooker, J.

This is a suit to distribute a trust created by Adeline L. Sprague, the grandmother of defendant Gracie Deats, and the mother of all the other parties in the controversy. The principles governing said distribution were determined when the case was here on a former hearing. See Sprague v. Moore, 130 Mich. 92 (89 N. W. 712). The decree rendered on that occasion contained, among other provisions, these (the letters designating the different paragraphs are inserted for the purpose of this opinion):

(a) “ That, before such distribution of Amelia’s estate [Amelia was a deceased daughter of Adeline, and one of the beneficiaries in said trust] is made, a deduction shall be made therefrom sufficient to reasonably compensate Thomas S. Sprague, administrator, and his solicitor, for their services and disbursements, and services in this litigation, and in the litigation in the probate court for the county of Wayne in the matter of the estate of Amelia L. Sprague, and appeals therefrom to the circuit court for the county of Wayne and this court, which allowances are to be made by the court below on the final accounting in this cause.”
(b) “That the right is reserved to complainant and to said trustee to apply to the circuit court, at or before the entry of the decree for final distribution herein, for special allowance for services of counsel and expenses of such accounting, as prayed for in the original bill and said cross-bill, respectively.”
(c) “And it satisfactorily appearing to this court that the appointment of an administrator of the estate of Adeline L. Sprague was unnecessary, but that the complainant herein was required to take such proceedings because of the demurrer of said trustee to bill herein, and ruling of this court thereon, it is ordered that the circuit court be, and it is hereby, directed to make a reasonable allowance to complainant out of said trust fund for services of counsel and expenses of such proceedings.”

Defendant trustee,, complainant, complainant’s solicitor, and the solicitor for defendant Rollin O. Sprague presented claims to the court below; contending that their allowance was authorized by the language above quoted. The court allowed the claim of the trustee as presented. It disallowed the claim of the solicitor for defendant Rollin. It reduced and allowed the claims of complainant and his •solicitor. From that allowance, all the parties in interest appeal.

We approve the action of the court in allowing the claim of the trustee, and in reducing and allowing the claim of complainant. We do not think any useful purpose would be served by discussing the questions — which are questions of fact — involved in these claims.

The solicitor for defendant Rollin contends that he was, in effect, counsel for complainant’s solicitor, and therefore his compensation, like that of complainant’s solicitor, should be paid out of the trust fund. He was employed by Rollin, and, as he testified, “ acted primarily for him.” It is clear that he was not described, 'and it was not the intention to describe him, as the solicitor for Thomas S. Sprague, administrator, in paragraph “a” of the decree, above quoted. He can claim nothing under paragraph ‘ ‘6” of said decree, for, as we shall hereafter show, complainant is entitled to no allowance thereunder. It was the intention of this court to limit the allowance under paragraph “c’\ to such an amount as would compensate complainant for the steps required to be taken, specified therein. As complainant is under no obligation to compensate the solicitor for defendant Rollin, the claim of the latter is not enforceable under that paragraph. It follows that, in our judgment, this claim was properly disallowed.

We think it proper to say in this connection that, in reaching the foregoing conclusion, we have not been influenced by the suggestion in the brief of counsel for the trustee that the solicitor for the defendant Rollin acted against the interests of his client. It is true that he did maintain certain propositions which did not tend to the financial advantage of his client. But they were propositions which, in the judgment of counsel, were sound and in accordance with principles of justice. His justification was properly stated by himself, when questioned on cross-examination :

“I think this: That, when I was employed* to bring about an accounting, I should bring it about on lines that commended themselves to me. * * * I would not be expected to advocate a particular method because it helped-him [my client], when I did not believe it was the right one.”

It would be deplorable indeed if a lawyer felt that he was under an obligation to his client to maintain positions which did not accord with his own notions of law and justice, simply because they tended to his client’s advantage. The lawyer owes a duty to the court, to himself, and to society, as well as to his client; and the conduct of those who have reached the highest positions in our profession proves that he cannot render the most efficient service to his client if he fails in the performance of those other duties.

We come now to the claim of complainant’s solicitor for allowance for compensation and disbursements. The lowei; court determined that the total value of the services of this solicitor for everything done by him in connection with this entire litigation was $5,000. This entire sum was allowed. One-third of it was charged to the estate of Amelia, under paragraph “a,” and two-thirds of it to the trust fund created by Adeline, under paragraphs “ b ” and c.” In making this allowance, the trial judge proceeded upon the assumption that the duty of making this allowance under each of these paragraphs was mandatory, and that is the view of complainant’s solicitor. The trustee contends that none- of these paragraphs imposed a mandatory duty upon the lower court.

We think it clear that paragraphs “a” and “c” are mandatory, and we think it equally clear that paragraph “5” is only directory. It follows, therefore, that it was the duty of the lower court to make an allowance under paragraph “a” sufficient to compensate the solicitor for his services to the administrator of Amelia’s estate in this litigation, and in the other litigation therein mentioned. And it was also his duty to make an allowance under paragraph “c” to compensate said solicitor for the proceedings to appoint an administrator of the estate of Adeline, and his services in connection with the demurrer therein mentioned; and it was the duty of the lower court to determine whether be was entitled to an allowance for services performed for the complainant under paragraph “ 6.” Before an allowance could be made under paragraph “ b,” the propriety of that allowance should be adjudged. While the lower court did not make this adjudication, the allowance under this paragraph should not be disturbed, if, under the testimony in the case, such adjudication should be made. Before we set aside this allowance, we must determine that question.

The services of complainant’s solicitor, in so far as they were performed to the advantage of complainant,— and those are the services under consideration, — were adverse, rather than beneficial, to the trust fund; and, in accordance with sound reasoning, and with all authorities brought to our attention, they are not justly chargeable to that fund. See Attorney General v. Insurance Co., 91 N. Y. 57 (43 Am. Rep. 648); Savage v. Sherman, 87 N. Y. 277; In re Application of Holden, 126 N. Y. 589 (27 N. E. 1063); Clement’s Appeal, 49 Conn. 519; Pinckard’s Distributees v. Pinchara’s Administrators, 24 Ala. 250; Smyley v. Reese, 53 Ala. 89 (25 Am. Rep. 598); Price’s Estate, 81 Pa. St. 263; Reeser’s Appeal, 100 Pa. St. 79; McGregor’s Estate, 131 Pa. St. 359 (18 Atl. 902); Rives v. Patty, 74 Miss. 381 (20 South. 862, 60 Am. St. Rep. 510); Hand v. Railroad Co., 21 S. C. 162; Paget v. Brogan, 67 Ark. 522 (55 S. W. 938); Sims v. Birdsong’s Administrator, (Ky.) 59 S. W. 749; Robbins v. Robbins, (Ky.) 1 S. W. 152; In re Glynn’s Estate, 57 Minn. 21 (58 N. W. 684); Succession of Hughes, 14 La. Ann. 863; Trustees v. Greenough, 105 U. S. 527. We conclude,, therefore, that no allowance should have been made complainant’s solicitor under this paragraph.

We approve the allowance made by the circuit judge for compensation under paragraph “ a.” We also approve the allowance for disbursements under said paragraph, with this exception: The solicitors for complainant and for defendant Rollin, acting in concert, employed an accountant to investigate and report on the account of the trustee, and thereby incurred an expense amounting to $405. The trial court reduced this account to $50, and charged but one-third thereof against the estate of Amelia. We think this item of expensé was properly and in good faith incurred, and that it should be allowed at its full amount, viz., $405, and one-third thereof, viz., $135, charged to Amelia’s estate.

There remains to be determined the proper allowance to complainant’s solicitor under paragraph “c” of said decree. He should be allowed $3.05 disbursed for advertising in the probate court. He should also be compensated for his services and disbursements in the litigation arising-from the demurrer therein referred to. We must hold both counsel in fault for not clearly separating these items of disbursements, which consist of expenses in attending this court and in printing a brief, from other items. We are enabled, however,- to sufficiently approximate them. For the disbursements, we think an allowance of $35 is proper, and for the services we allow $350.

The decree will be modified in accordance with this opinion. Neither party will recover costs.

The other Justices concurred.