text:
    BROWN v. BROWN.
    1. Witnesses — Estates oe Decedents — Disqualification of Party in Interest — Statutes.
    The complainant in a suit to impress a transaction in the nature of a mortgage, executed in the name of her deceased son, with a trust in complainant’s favor, on the theory that she advanced the funds for the loan, and deceased acted as her agent, is not a competent witness as to matters equally within the knowledge of deceased. 3 Comp. Laws, § 10212.
    2. Same — Agent—Husband and Wife.
    Nor is her husband who participated in the negotiations as complainant’s agent, a competent witness as to similar matters, under the statute, as amended by Act No. 239, Pub. Acts 1901.
    3. Trusts — Estates of Decedents — Mortgages.
    Evidence considered and held to warrant a decree for defendant, upon a bill in equity to subject a loan made in decedent’s name to a trust in favor of complainant, who claimed to have advanced the money.
    Appeal from Huron; Beach, J.
    Submitted October 20, 1910.
    (Docket No. 91.)
    Decided November 11, 1910.
    Bill in chancery by Harriet Brown against Matilda Brown as administratrix of the estate of Harvey H. Brown, deceased, and others, to declare and enforce a trust. From a decree for defendants, complainant appeals.
    Affirmed.

      George W. Bates and George M. Ciarle, for complainant.

      John F. Murphy and Charles D. Thompson, for defendants.
   McAlvay, J.

The complainant filed her bill of complaint in the circuit court for Huron county, in chancery, against defendant, administratrix of the estate of her son, Harvey H. Brown, deceased, and the representatives of his minor children, and also William J. Stephenson and wife, to subject certain land now held by the estate of said deceased son to a trust in her favor, which she claims her son acquired in his name while acting as her agent, on April 4,1906. She alleges that a man named Stephenson and his wife owned this land, and, desiring to borrow $1,200, she made the loan through her husband, Levi Brown, and her son, now deceased, and as security therefor a deed was by her allowed to be taken in the name of said deceased, who gave a land contract back -to Stephenson and wife, agreeing to sell them said land on payment to him, on or before three years, of the sum of $1,200, with interest at 6 per cent., payable annually. On April 23, 1907, the son met his death by drowning while the title to this property was in his name. His administratrix claims that the money so loaned was his money, and that the property, subject to the land contract, was his property. There was no dispute but that this transaction amounted to a mortgage given to secure a loan of money. The only material fact in dispute was as to whether the money was complainant’s and was loaned for her. Defendants Stephenson and wife answered the bill of complaint, disclaiming any interest in the controversy, except the rights under their contract to pay the money loaned to them and receive a deed therefor. This money, with interest, they paid into court before the decree. The case was heard upon proofs taken in open court, and a decree was granted against the complainant, with costs, wherein the court found that the son “in his lifetime was the owner of the fund represented by the securities involved in the loan made by him to said William J. Stephenson;” that the money paid into court was the property of the administratrix, and was ordered to be paid to her by the register of the court. Complainant has appealed.

The question to be determined in the case is one of fact. Under the statute (section 10212, 3 Comp. Laws) complainanfc was not a competent witness “to testify at all to matters which, if true, must have been equally within the knowledge of the deceased person.” This leaves but little, if any, of her testimony to be considered. In the matter of this loan, Levi Brown testified that he acted as the agent of his wife, the complainant, and was called and testified in her behalf as a witness to this agreement with the deceased, and the part he took in the transaction prior to the death of Harvey H. Brown. This witness, under the statute above cited, as amended by Act No. 239, Pub. Acts 1901, was under the same prohibition as complainant, his principal, and as to all such matters his testimony cannot be considered.

Two other witnesses, brothers of the deceased, testified, as to the principal facts in the case, that they were present when the agreement was made between the mother, who furnished the money for this loan, and their dead brother, who agreed to take the deed and make the contract in his name, for and in behalf of complainant; and one or both of them also testified that the $1,200 was counted over in the house in Harvey’s presence, and handed to him by the mother, and that these papers, when executed, were brought to the house and delivered to the mother, who had kept them continuously since that time, and that when Harvey collected the first year’s interest he brought it home and gave it to the mother. The foregoing is, in brief, complainant’s case.

The banker who drew the deed and contract at the request of the deceased son, Levi Brown, his father, and Mr. Stephenson testify that complainant’s name was not mentioned at the time, and the papers were drawn, as directed, in Harvey’s name. The money was not paid over in the presence of witness, but the papers, when completed, were taken away. Mr. Brennan, also in the banking business, testified that he was collecting for a client of his money on a mortgage of $800 which Stephenson was about to pay, and these three persons came in to pay this money. They brought only $800, and “they concluded to settle it all up there — that is, to make the payment of the-whole of the money; ” that Harvey went out after the other $400, brought it in, and laid it on witness’ desk, who counted it for them. The administratrix, widow of decedent, a competent witness, testified that she was present in her home when Stephenson brought the first year’s interest of $72 and paid it to her husband, who wrote a receipt for it at the time. Levi Brown stated as a witness on cross-examination:

“Q. Wasn’t that a gift from your wife to your son ?
“A. No; Harvey had $2,000 then in the house, more-money than she had, and we can prove it.”

The son Albert testified:

”A. He had some money; yes, I guess he did.
Q. Do you know how much money he had ?
“A. Well, he had $800 or $900 that I know of, at-home.
“Q. He had saved that up F
“A. I guess he had. He had it there, anyway.”

This testimony, to which may be added the presumption arising from the papers as drawn, warranted the finding and decree of the learned trial judge. We agree with his determination of the case, and have no doubt-from this record that the view of the appearance and manner of the witnesses at the hearing was of substantial benefit in determining the weight to be given to their testimony.

The decree is affirmed, with the added provision that the administratrix make proper release and transfer upon receipt of the fund in question from the register in chancery. Costs are awarded to defendants.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    PALMER v. FAGERLIN.
    1. Bills and Notes — Public Policy — Divorce — Compromise and Settlement.
    A promissory note of defendant, a married man, executed in connection with divorce proceedings instituted by defendant’s wife, in partial settlement of property matters, under an agreement with the wife’s solicitor, prepared and signed-after the commencement of suit, is not void as against public policy.
    2. Divorce — Alimony—Settlement Between Parties.
    After an actual separation or the filing of a bill for divorce, amicable settlements between the parties relating to their property interests are not only lawful but commendable.
    Error to Montcalm; Davis, J.
    Submitted October 20, 1910.
    (Docket No. 93.)
    Decided November 11, 1910.
    Assumpsit in justice’s court by Lucian 0. Palmer against Peter Fagerlin and Fred W. Johnson. A judgment for plaintiff, on appeal to the circuit court, is reviewed by defendant Fagerlin on writ of error.
    Affirmed.

      Frank A. Miller (R. A. Hawley, of counsel), for appellant.

      N. O. Griswold, for appellee.
   Brooke, J.

This is an action in which plaintiff seeks to recover the sum of $40 and interest; that being the amount of a promissory note given by defendant to plaintiff.

It appears that Ada E. Fagerlin, wife of defendant, had on August 12, 19,08, filed a bill of complaint for a divorce against her husband, plaintiff herein acting as her solicitor. On August 26, 1908, the husband, defendant herein, caused his appearance in said cause to be entered by Frank A. Miller as his solicitor. On September 3, 1908, Fagerlinf his wife, and her solicitor, had a conference for the purpose of adjusting their property interests. That meeting resulted in the execution of an agreement between Fagerlin and his wife as follows:

“State oe Michigan — The Circuit Court for the County of Montcalm, in Chancery.
“Ada E. Fagerlin, Complainant,
vs.
“ Peter Fagerlin, Defendant.
“Whereas, the parties hereto are husband and wife, and disagreements having arisen between them, resulting in application for divorce and alimony, by and on the part of complainant and against defendant; and, whereas, the parties hereto are desirous of making full and complete settlement of all property interests: Therefore, it is hereby agreed as follows:
“First. The said complainant doth hereby agree to execute and deliver to said defendant full and complete release of all dower and homestead rights in and to the lands of said defendant that she may have and hold by virtue of their marital relations.
“Second. That said defendant, in consideration of the execution and delivery of such release, doth hereby agree to and with the said complainant to properly care for, cut, harvest, and market all of the crops now standing and growing (or in whatsoever form the same may be) and located on the premises of complainant, and give to the complainant one-half thereof.
‘ ‘ Third. Said defendant further agrees to give complainant one brood sow, the same designated and agreed upon between them, also ten bushels of oats, also release in full for any claim he may have or hold to certain young stock sold by complainant.
“Fourth. Defendant further agrees to pay to L. C. Palmer the just and full sum of $40.00, in lieu of application for solicitor’s fees and expense in and about said suit, the same to be payable in cash or by good endorsed note and payable at a time not exceeding one year; said note to be approved by the State Bank of Edmore.
Fifth. Complainant agrees to pay to the said L. C. Palmer the sum of $10.00, at such time as may be agreed upon.
“ In witness whereof, the parties to these presents have hereto set their hands and seals the third day of September, A. D. 1908.
“Ada Fagerlin. [L. S.'
“Peter Fagerlin. [L. S/
“ Signed, sealed and delivered in the presence of:
“L. C. Palmer,
“Margaret E. Batson.”

The note in suit herein is the one provided for in section 4 of the above agreement. On October 1, 1908, Fagerlin answered his wife’s bill of complaint. Section 14 of his answer is as follows:

“This defendant, further answering, avers that on the 3d day of September, A. D. 1908, said complainant and this defendant agreed upon a séttlement of their property interests wherein the said complainant agreed to execute and deliver to the defendant a release of all dower and homestead rights in the lands of this defendant that she might hold by virtue of being his wife, and this defendant agreed in consideration of the release to care for, harvest, and market all the crops then growing on her land and give her one-half the same, and further agreed to give her a certain pig and 10 bushels of oats, and release any claim that he had to certain young stock that she had sold. He also agreed to pay her solicitor the sum of $40 in lieu of application for solicitor’s fees and expenses in the divorce court, the same to be payable in cash or by good endorsed note, and payable at a time not exceeding one year, said note to be approved by the State Bank of Edmore, and the complainant agreed to pay the said Palmer $10 at such time as might be agreed upon.”

Ada E. Fagerlin had instituted another divorce proceeding against defendant about a year before the last one was launched. That suit was abandoned and the parties became reconciled and lived together for some months before the second bill of complaint was filed. From the fact that on December 13, 1909, when this suit was tried, she was still Fagerlin’s wife, and appeared as a witness for him, it would appear that the second divorce proceeding has been abandoned. When sued upon the note, defendant gave notice under his plea of the general issue that he would prove that the consideration for the note was illegal and against public policy. After setting out the contract between himself and his wife, he further states:

“At said time and place it was also understood and agreed that the said defendant, Peter Fagerlin, the defendant in said divorce suit, should not appear in said divorce suit, and should not contest the same, but let the same go by default.”

Upon the trial, which took place before the judge without a jury, defendant gave evidence tending to support his claim that at the time the agreement was signed he agreed that he would not defend if certain charges made against him in the bill of complaint were eliminated. His wife was sworn, and testified that:

“Q. The object of the settlement at Edmore, as you understood it, was to fix your property matters so that there would be no more dispute about these cattle and no more dispute about the crops growing upon your land, wasn’t it ?
“A. Well, the cattle, he had them. That didn’t bother me anyway, but it was to stop a lawsuit and a great lot of expense.
“Q. Over the property ?
“A. Yes, sir.
“Q. There was some talk there about striking out certain charges in the bill of complaint ?
“A. They didn’t say that before me. They had that talk to themselves. I didn’t hear that.”

It is to be noted that defendant filed his answer in the divorce proceeding nearly a month after the contract was made between himself and wife. He was there represented by competent counsel, and while he sets out the gist of the contract, and apparently relies upon it to defeat any attempt on the part of his wife to secure alimony or solicitor’s fees, he fails to make mention of any collusive agreement which would defeat the contract itself. It seems to us clear from the testimony of the wife, and the conduct of the defendant, after the execution of the contract, that the learned circuit judge was correct in his finding as a fact that there was no collusive agreement between the parties to this suit. The record shows conclusively that there was no collusion between Fagerlin and his wife relative to the starting of the divorce proceedings. Therefore the authorities cited by defendant are not applicable. This court has consistently held that, after actual separation or the launching of a bill for divorce, amicable settlements between the parties, of their property interests, are not. only lawful but are to be commended. Randall v. Randall, 37 Mich. 563; Owen v. Yale, 75 Mich. 256 (42 N. W. 817).

The judgment is affirmed.

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


text:
    PEOPLE v. DUNNIGAN.
    1. Criminal Law — Evidence—Admissions—Privileged Communications.
    A letter from one in jail, accused of a crime, written to his wife, containing incriminating admissions and obtained by prearrangement between the sheriff and an acquaintance of respondent who visited him in jail and promised respondent to deliver the communication to the wife, but turned it over to the sheriff, is not a privileged communication under 3 Comp. Laws, § 10213.
    2. Same — Confession.
    While a confession obtained by improper threats or promises that may lead the accused to think it is for his interest to make a confession, regardless of its truth or falsity, is inadmissible, the letter was not subject to such objection.
    . Error to Hillsdale; Chester, J.
    Submitted October 21, 1910.
    (Docket No. 166.)
    Decided November 11, 1910.

      William Dunnigan was convicted of murder and sentenced to imprisonment for life.
    Affirmed.

      Pawl W. Chase and Frank M. Hall, for appellant.

      Clayton A. Powell, Prosecuting Attorney, and Franz C. Kwhn, Attorney General, for the people.
   Brooke, J.

Respondent was convicted of murder in the first degree, and is now serving a life sentence in the State prison at Jackson.

The record discloses the fact that two other men, Knox and Smith, were in custody awaiting trial, charged with the same homicide, when respondent was arrested and confined in jail charged with some petty offense. He had testified on the examination of Knox and Smith before the justice and at the trial in circuit court. The testimony he had given tended to incriminate Knox and Smith, and to show his own innocence. While respondent was in jail, Bibbins, undersheriff, and Stone, deputy sheriff, of the county, made an arrangement with one Wilcox, an acquaintance of respondent, to the effect that he, Wilcox, should, for a consideration, be admitted to respondent’s cell for the ostensible purpose of cutting respondent’s hair; that Wilcox should get what information he could from respondent, and turn it over to the sheriff. In pursuance of this plan, Wilcox was admitted to respondent’s cell, and there suggested that, if respondent desired to communicate with his wife, he, Wilcox, would convey a letter to her. Acting upon this suggestion and relying upon the good faith of Wilcox, respondent wrote and delivered to him a letter addressed to Nora, his wife, which Wilcox immediately turned over to the sheriff. Respondent was then indicted for murder, and, upon his trial, the letter was offered and received in evidence, and was as follows:

“ Dear Nora: I want to tell you something. If they ask you any questions, tell them that I got home at 12 o’clock, and if they ask you if I had a watch that night, tell-them no, or no ring, if they should ask you, for I have told them that Walter Knox got the watch and ring, for I had to do it in order, to clear myself, and I guess I can if you will help a little. It will mean five years for Walter Knox and life for Smith, and I don’t know how much for myself. Now, don’t forget to stick to what I have told you, will you, for it will help me a lot. Now, do as I have told you.
“Prom Will.”

Objection was made to the admission of the letter upon the ground that it was a privileged communication between husband and wife, and also because it had been procured from respondent by artifice and fraud. The sole assignment of error is that the trial judge erred in admitting the letter.

It is urged on behalf of respondent, and an examination of the record leads us to believe, that the letter was the principal, if not the only tangible, evidence against the accused. The importance of the ruling is therefore apparent. We will first consider the question of privilege. There can be no doubt that respondent intended the communication to be for his wife only. It passed out of his control, and never reached hers. Is its admission as evidence forbidden by the statute ? That portion under consideration provides:

“Nor shall either, during the marriage, or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage. * * * ” 3 Comp. Laws, § 10213.

The identical question here presented was carefully considered in the late case of O’Toole v. Insurance Co., 159 Mich. 187 (123 N. W. 795, 24 L. R. A. [N. S.] 802), where the authorities are cited and considered. In that case we said:

“And so it has been held, and, we think, correctly, that where the communication, oral or written, has, without collusion or voluntary disclosure, escaped the custody and control of the parties communicating, or the custody and control of their agents or representatives, it is not privileged.”

Regarding the letter in question as a confession of guilt, was it admissible ? It is urged on behalf of respondent that it was not, and the casé of People v. McCullough, 81 Mich. 25 (45 N. W. 515), is cited. It must be admitted that certain language is found in that opinion which affords a basis for respondent’s claim. There, in discussing confessions generally, this court said:

* ‘ But they must be voluntary, and without any influence being exerted by the officer, either of threats, promise, artifice, or duress.”

This declaration is broader than was required for the determination of the case there under consideration, and we think, taken baldly and without explanation or qualification, it does not accurately state the law. From a review of all the authorities, it would appear that the true reason for «the rule for the exclusion of involuntary confessions — i. e., those obtained by improper threats or promises — is that, because of such threats or promises the accused is led to believe that it is for his interest to make the confession, regardless of its truth or falsity. People v. Wolcott, 51 Mich. 615 (17 N. W. 78); 1 Wigmore on Evidence, §§ 821, 822, and cases cited in note. The use of artifice, trickery, or fraud in inducing a confession will not alone render such confession inadmissible as evidence. If the artifice used involved a- promise tending to induce .a false confession, it would operate to exclude, not because of the trick, but because, by use of the trick or artifice, an untrue confession had‘been secured. 1 Wigmore on Evidence, § 841, and cases cited; 12 Cyc. p. 476, and cases cited.

Applying these principles to the ca,se under consideration, it is apparent that the promise of Wilcox to carry a letter from respondent to his wife could in no manner have operated upon respondent’s mind to induce him to falsely admit his guilt. The record discloses the fact that the letter was written by respondent himself, and it does not appear that its contents were suggested by Wilcox or any other person. While we feel constrained to hold that the learned circuit judge did not err in admitting the document, we do not wish to be understood as setting the seal of our approval upon the methods used in securing it. Those methods were distinctly reprehensible. The presumption of innocence surrounds all persons charged with the commission of crime, and it is the duty of those charged with the custody and prosecution of such persons to treat them with fairness in order that the innocent may thereby be protected, and the guilty convicted and punished. When such a course is followed, the dignity of the law is upheld and its administration is, as it should be, above criticism.

The conviction must be affirmed.

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


text:
      In re MOOR’S ESTATE. NAGELI v. McMORRIS.
    1. Wills — Bequests—Life Interest.
    A bequest to the wife of testator of his personal property, except notes, mortgages, bonds and similar valuables, of which only the use and interest during her life was granted, the same to be equally divided after her death among his brothers and sisters, operates as a gift of the other property absolutely, and transfers a life interest in the excepted securities.

      2. Same — -Devise—Real Property — Life Estate.
    A devise of testator’s real property to his widow, under like restrictions, conveys a life estate, notwithstanding a subsequent provision in the instrument that, although she should have the right to dispose of the real estate, the testator expected her to carefully and prudently save and invest the proceeds realized from the sales thereof, for the benefit of the other devisees.
    3. Same.
    Her failure to comply with such requirement would charge her estate with liability for the proceeds of sales of the realty.
    4. Same — Construction—Evidence.
    Where the language of a will is plain and unambiguous, the intention of the testator must be gathered from its terms and is not to be determined from alleged declarations made by testator after its execution, or from the subsequent condition of the parties in interest.
    5. Same — Devises—Life Estate.
    A life estate expressly created will not be converted into a fee absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive. Jones v. Jones, 25 Mich. 401, distinguished.
    6. Words and Phrases — Use.
    Use is the employment of a thing or applying it to one’s service ; not the thing itself or any part of it; of a building, use refers to the rent obtainable; of money, the interest.
    Certiorari to Bay; Collins, J.
    Submitted October 17, 1910.
    ( Docket No. 12.)
    Decided November 11, 1910.
    Catherine McMorris, administratrix, presented to the probate court a petition for the construction of the will of Caspar Moor, deceased. From the order entered construing the instrument, Anna Nageli appealed to the circuit court. A judgment modifying the order of the probate court is reviewed by the administratrix on writ of certiorari.
    Affirmed.

      F. W. De Foe (Hugo P. Geisler, of counsel), for appellant.

      Pierce & Kinnane, for appellees.
   Brooke, J.

The only question involved in this proceeding is the proper construction to be given to the will of the deceased. That will is as follows:

“I, Caspar Moor, of West Bay City, in Bay county, State of Michigan, of the age of forty-seven years, and being of sound and disposing mind and memory, do ordain, publish and declare this as and for my last will and testament in the manner following, that is to say:
“There being no issue from the matrimony with my wife, Magdalena Moor, née Zybach, I hereby give and bequeath to her all my personal property of what kind and nature soever, with the restriction, however, that so far as such personal property consists of moneys, notes, mortgages, bonds or similar valuables, she shall only have the use and interest of the same during the time of her life, and that after her death such property shall be equally divided among my brothers and sisters or their heirs, if any of my brothers and sisters should have departed this life before the death of my said wife.
“ I further give and devise all my real estate to my said wife under the same restriction and condition as herein-before mentioned, and although my said wife shall have the right to dispose of the real estate hereby devised to her, I confidently expect that she will carefully and prudently save and invest the proceeds realized from the sales of such real estate for the benefit of my brothers and sisters and their heirs, as the case may be.
“And I hereby appoint my said wife executrix of this my last will and testament.
“In witness whereof, I have signed and sealed these presents and declared the same as and for my last will and testament, at Bay City, in the county of Bay and State of Michigan, this nineteenth day of June, A. D. 1879.
“Caspar Moor. [L. S.]
“ The above instrument, consisting of one-half sheet, was at the date thereof, by the said testator, Caspar Moor, signed and sealed and published and declared as and for his last will and testament, and we, the undersigned, have subscribed our names thereto as attesting witnesses, in the presence of the said testator, and of each other, the day and year hereinbefore mentioned.
“Harvey Gilbert,
“F. Simon,
“E. Anneke.
“Residing in Bay City, Bay County, Michigan.”

By the terms of the order, made by the court below, it was determined that under this instrument Magdalena Moor took a life estate only in the real estate and in that portion of the personal estate covered by the restriction. It is urged on behalf of appellant that a proper construction of the language used by the testator would result in a holding that Mrs. Moor took an absolute title in fee simple to all the property mentioned in the will.

We think it should be said at the outset that rarely, if ever, has a will been presented to this court for construction where the intention of the testator may be so clearly and certainly determined by an examination of the language used. At the time the will was executed, the testator was engaged in two lines of commercial endeavor. He had a meat market, and was a commercial fisherman. In both lines of business, certain personal property was employed. This property, and all his other personal property, except “moneys, notes, mortgages, bonds or similar-valuables,” by the terms of the will was given to the wife absolutely. Touching these excepted items, the will declares that “ she shall only have the use and interest of the same during the time of her life.” The will then further provides “that after her death such property shall be equally divided among my brothers and sisters or their heirs.”

We next consider the clause dealing with the real estate. This we find is given and devised to the wife “under the same restriction and condition as hereinbefore mentioned.” That the restriction here mentioned refers to the one contained in the earlier paragraph of the will relating to certain personal property is not even questioned. This language, and this alone, is the source of Mrs. Moor’s interest in the real estate. The concluding portion of the paragraph, in which she is clothed with the power of disposition, cannot possibly be construed to enlarge that interest, or to change it from a life estate to one in fee. While she is not commanded, she is confidently expected, to “carefully and prudently save and invest the proceeds realized from the sales of such real estate for the benefit of my brothers and sisters and their heirs, as the case may be.” Her failure to comply with this injunction would not relieve her estate from the necessity of accounting to the brothers and sisters of the testator for the proceeds of such sales. By the terms of the devise she was given the use of the real estate for life only. The testator expected that she would prudently save and invest the proceeds of any sales she might make. Whether she did as he expected or not, her interest in the real estate was not by this language enlarged.

Where the language of the will is plain and unambiguous, as we find it to be in this case, it is elementary that the intention of the testator must be gathered from its terms. Testimony of the condition of the parties and of alleged declarations of the testator, made subsequent to the execution of the will, as to his intention, was offered in the court below. Such testimony cannot be considered, when it is possible to determine, from the words used, the true intention of the testator. Kinney v. Kinney, 34 Mich. 250; Tuxbury v. French, 41 Mich. 7 (1 N. W. 904); Toms v. Williams, 41 Mich. 552 (2 N. W. 814); Waldron v. Waldron, 45 Mich. 350 (7 N. W. 894); Wales v. Templeton, 83 Mich. 177 (47 N. W. 238); Wheeler v. Wood, 104 Mich. 414 (62 N. W. 577); Sondheim v. Fechenbach, 137 Mich. 384 (100 N. W. 586).

Appellant contends that this case is controlled by Jones v. Jones, 25 Mich. 401, Dills v. La Tour, 136 Mich. 243 (98 N. W. 1004), and cases of like character. In that line of cases the testator, after making an absolute devise, with full power of alienation and consumption, attempted to control the disposition of such uncertain portion of the devised estate as might remain after the death of the original devisee. The distinction between such cases and the one under consideration is clear and broad. Here there is no power granted to consume the corpus of the estate or any portion thereof; but the first taker’s interest is strictly limited to the use and interest thereof during her life.

We deem it unnecessary to cite authorities to sustain this construction, but an examination of the following will be found instructive upon the point involved: Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111); Robinson v. Finch, 116 Mich. 180 (74 N. W. 472); Fecht v. Henze, 162 Mich. 52 (127 N. W. 26). See, also, Mansfield v. Shelton, 67 Conn. 390 (35 Atl. 271, 52 Am. St. Rep. 285), where it is said:

“A life estate, expressly created, will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive.”

A portion of the argument for appellant is based upon the use of the word “only;” it being appellant’s contention that this word refers, not to the character of the estate to be enjoyed by Magdalena Moor, but to the term of its enjoyment. Such a construction is strained, unnatural and wholly unwarranted.

It is further urged the word “use,” in the phrase “she shall only have the use and interest of the same during her life,” should be interpreted as granting the power of consumption. Webster defines the word, used as a noun, primarily as follows:

“ The act of employing anything, or of applying it to one’s service; the state of being so employed or applied; application; employment; conversion to some purpose; as, the use of a pen in writing; his machines are in general use.”

In Spooner v. Phillips, 62 Conn. 62 (24 Atl. 524, 16 L. R. A. 461), the court, in defining this word, said:

“What is the ordinary meaning of the use of a thing? It is not the thing itself, or any part thereof, but is that which the thing will produce. If it is a house or other building, or any other form of real estate, it is the rent which can be obtained for it. If it is money, it is the interest which it will earn.”

The word clearly does not, in its ordinary acceptance, impart the power to dissipate, destroy, or consume.

Our conclusion is that the intention of the testator is plain, that he used apt and unambiguous language to express that intention, and that by his will he gave to his wife a life estate only in the restricted portion of his personal estate and in his real estate.

The order of the circuit court is therefore affirmed.

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


author: Stone, J.

text:
    PEOPLE, ex rel. SUTHERLAND, v. FORD.
    Public Officers — Appointment — Quo Warranto — Villages— Municipal Corporations.
    After the resignation of a member of the board of village trustees, and the holding of a special election to elect a successor, the council of the village determined the result of the election, declaring the respondent elected. A motion was carried permitting the candidate to qualify at once and to take office. Held that although, under 1 Comp. Laws, § 2711, the special election was invalid, and the vacancy should have been filled by appointment, the action of the village council complied with the statutory requirement and that quo warranto would not lie to oust respondent and vacate the office.
    Error to Muskegon; Sessions, J..
    Submitted October 25, 1910.
    (Docket No. 110.)
    Decided November 11, 1910.
    Information in the nature of quo warranto on the relation of Alexander Sutherland, prosecuting attorney, against Joseph C. Ford, Jr., to determine the right of respondent to the office of village trustee. Judgment for respondent, and relator brings error.
    Affirmed.

      Alexander Sutherland, Prosecuting Attorney (Cross, Vanderwerp, Foote & Boss, of counsel), for relator.

      William Carpenter, for respondent.
   Stone, J.

This is a proceeding in the Muskegon circuit by information in the nature of quo warranto against" Joseph C. Ford, Jr., to determine his right to hold the office of trustee of the village of Fruitport, a village organized under the general act relating to the incorporation,' powers, and duties of villages within this State. • A vacancy having occurred in the office of trustee, the council of the village ordered a special election for the purpose of electing a trustee to fill such vacancy. The election was held, and respondent Joseph C. Ford, Jr., received a majority of the votes cast at the election. The council met March 30, 1910, and determined the result of the election, whereupon the following proceedings were had:

“Moved by Kline and seconded by Seibert that J. C. Ford, Jr., be declared elected. Carried. Moved by Seibert, supported by Hendryx, that J. C. Ford, Jr., be allowed to qualify at once, and take his seat in the council. Carried.”

Respondent thereupon qualified as such trustee, took his seat in the council, and thereafter participated in its proceedings, and thenceforth claimed the right to hold, exercise, and enjoy said office. It is conceded by counsel for the respective parties that a vacancy in the office of trustee of a village in this State must be filled by appointment by the council, as provided by section 3711, 1 Comp» Laws, which reads as follows:

“Any vacancy occurring in the office of president, trustees or any other elective office, shall be filled by appointment by the council, and such appointee shall hold his office until the next annual election thereafter. All vacancies in any other office shall be filled by the president, by and with the consent of the council.”

It is also conceded that the aforesaid election was of no force or validity in entitling respondent to the office. But it is claimed by the respondent, and was so held by the circuit judge, that the action of the council above set forth constituted and amounted to an appointment of respondent to the office of trustee under the statute. The respondent had judgment, and the relator has brought error. The correctness of the ruling below is challenged by the assignments of error; -it being the claim of the relator ^pdi appellant that the council' never exercised its appointive power to fill the vacancy, and that said office is still vacant, and must remain so until the council shall have exercised that judgment and discretion without which no appointment to office can be made.

It is the claim of the respondent that some light is thrown upon the intention and action of the council at its said meeting of March 30, 1910, .by what it did immediately after it seated respondent as aforesaid, relating to another vacancy in the office of trustee. The following resolution was offered:

“ Whereas, a vacancy has been created by the resignation of H. J. Curtiss, as trustee, and whereas, the village has been put to the extra expense of one special election, and whereas, at said special election, out of ninety-four votes cast, one Arthur Gallup received forty-five votes: Therefore be it resolved that said Arthur Gallup be appointed as trustee by the council, to fill the vacancy caused by the resignation of said H. J. Curtiss. Trustee Hendryx moved the foregoing resolution be adopted, supported by Gilbert. Moved by Seibert, supported by Kline, that the motion be amended by striking out the words ‘ be adopted,* and inserting ‘ be submitted ’ to competent legal authority by the president, and a written legal opinion be secured as to the legality of the council filling the existing vacancy, without holding aspecial election, and that said legal opinion be submitted to the council at the regular April, meeting. Carried.”

It is the. claim of counsel for respondent that from the foregoing action it will be seen that it was already in the minds of the members of the council that the vacancy must be filled by an appointment by that body.

Perhaps the vital question here is: Does it appear that the council by its action designated the respondent as the person who should assume and perform the duties of the office in question ¥ Upon that subject the learned circuit judge said:

“ I am of the opinion that the action taken by the council can be construed in no other way than as an appointment. By ‘appointment’ is meant a selection, an election, a designation, a choosing, and the language is fit and proper to indicate a choice of Mr. Ford to act as trustee of the village. And more than that, the fact that he was designated, that he accepted the office, that he qualified, and was permitted to sit as a trustee upon the board of trustees, or the council, is sufficient in itself to constitute an appointment. It was a recognition of his right, and a selection of Mr. Ford to that office. The language is appropriate, and it matters not whether the selection was made in accordance with the express wishes of the people of the village of Fruitport, at the election (which could have been nothing more than advisory in any event), or whether it was the independent action of the council. In either event Mr. Ford was duly appointed to the office of trustee, and is entitled to hold that office.”

We fully concur in the views above expressed, and are of opinion that the question here involved was settled by this court in Pariseau v. Board of Education of City of Escanaba, 96 Mich. 302 (55 N. W. 799). That was a mandamus case commenced in this court. It was there held that where a member of the board of education of a city places his resignation in the hands of the president of the board just prior to the charter election, after which he accepts a nomination for alderman in a caucus which places in nomination a candidate to fill the vacancy supposed to have been created by such resignation, both of whom are voted for at the election, and a nominee to fill such vacancy is declared elected on a canvass of the votes by the common council, to which such resignation should have been tendered, and which alone had power to accept it, and the board of education admits said nominee to a seat in its body, said member is not in a position to question the validity of such action on the ground that the board alone had the power to fill the vacancy, if one existed, and that he never tendered his resignation to the common council, for which reason no vacancy existed, to be filled by election or otherwise.

Here it appeared that relator’s resignation was not acted upon by the proper body, and that the incumbent whose place he sought to obtain had not been appointed by the board of education, unless its action in declaring him entitled to a seat was equivalent to such appointment. This court held the resignation effective, and a vacancy there-» by occasioned, and the choice of Mr. Champ — the incumbent — as a member of the board valid. We quote from page 306 of 96 Mich. (55 N. W. 801):

“ It is true that by the provisions of the charter his (relator’s) resignation should have been tendered to the common council, but the clerk of the city had been advised that there was to be a vacancy, and, acting in good faith, published the notice of election. The vote was taken, and the council acted upon it, declaring Mr. Champ elected. This was equivalent to an acceptance of the relator’s resignation, under the circumstances, by the council. The vacancy, by this act, was then declared, even if the relator were in a position to set up the claim of want of vacancy ; and, though the election by the people may not be considered as giving Mr. Champ a right on the board, yet the action of the board, after the vacancy thus occurred, legally seated Mr. Champ, as the board, in case of a vacancy, had a right to fill it.”

There, the board of education, acting upon the declaration made by the council that Mr. Champ was elected, admitted him as a member. The mere admission to membership in the board was all the indication there was that the board had actually selected and designated him as the person to fill the vacancy then existing.

In this case, the council itself, the body of which respondent became a member, declared him elected, and thereby ratified and approved the action of the electors, and then by special motion admitted him to a seat in its body, thus specifically designating him as the one who should fill the vacancy. There is no question raised but that the council acted in good faith, and with the desire that respondent should occupy the office which he now holds.

We think his appointment was valid, and the judgment of the court below is affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    McINERNY v. HAASE.
    1. Perpetuities — Estates—Wills—Life Estate.
    A will creating a life estate in the testator’s widow, a life estate in his daughter after the widow’s death, title to vest in a granddaughter, if living at the termination of the life estates; if not, title to vest in his surviving grandchildren, does not violate the statute (3 Gomp. Laws; §§ 8796, 8797), which prohibits the suspension of the absolute power of alienation for a longer period than two lives in being at the creation of the estate.
    2. Same.
    The period of suspension is not determined by the fact that more than two lives were in being when the estate was created, who, by a contingency, might share in its distribution, but by the number of life estates between the creation of the estate and its enjoyment in possession.
    3. Same — Vested Remainders.
    The devise created a vested remainder in the granddaughter, subject to be divested in the event of her death during the life of the mother.

      4. Same — Contingent Remainders — Statutes.
    Remainders are vested when there is a person in being who would have an immediate right to possession on termination of the intermediate or precedent estate; contingent, when the person to whom or the event upon which they are limited, remains uncertain. 3 Comp. Laws, § 8795.
    Appeal from Macomb; Erskine, J.
    Submitted October 2’6,1910.
    (Docket No. 104.)
    Decided November 11, 1910.
    Bill by Hannah Mclnerny against Mary Jane Haase for the construction of the will of Denis Kelleher, deceased. From a decree sustaining the validity of the estates devised, complainant appeals.
    Affirmed.

      George W. Coomer, for complainant.

      Fox & Dohany, for defendant.
   McAlvay, J.

The bill of complaint in this case was filed for the purpose of obtaining a construction of the will of Denis Kelleher, who died on or about March 1, 1862. His will was admitted to probate April 9, 1862. Complainant is the daughter of the testator and the defendant is a daughter of the complainant, and she and another child of complainant were living at the time of the death of the testator. After his death, two children were born to complainant, who are now living. The widow survived the testator and occupied the premises during her lifetime, dying in the year 1868. Upon her death, the daughter Hannah, the complainant, took possession of the real estate in question, and has continued to occupy the same to the present time.

The will in question reads as follows:

“ Erin, Macomb County, State of Michigan,
“January 24th, 1862.
“Know all men by these presents, that X Denis Kelleher, of the township of Erin, county of Macomb and State of Michigan, do hereby solemnly make this my last will and testament, being in full possession of my mental faculties, thank God: I do therefore give and bequeath to my loving wife, Mary Kelleher, my farm in the aforesaid town, described as follows, to-wit: The northwest quarter of the northwest quarter of section 6 in township 1 north, of range 13 east, also the whole of my personal property to have and to hold during her life time, and upon her death I bequeath to my affectionate daughter, Hannah the same property and finally, upon Hannah’s death, to my granddaughter, Mary Jane Mclnerny, should she survive her mother Hannah. And in case the said Mary Jane dies before her mother Hannah, then it is my will that the aforesaid property be equally divided among the surviving children of my daughter Hannah.
“Provided that my son, John Francis Kelleher, who is at present in the United States Army, should return to this place whoever holds the property at the time shall pay him five dollars. And the Lord have mercy on my soul.”

It is the contention of complainant that this will of Denis Kelleher is void because in contravention of sections 8796, 8797, 3 Comp. Laws, which provide in substance : That the absolute power of alienation shall not be suspended for a longer period than during the continuance of two lives in being at the creation of the estate, and that such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Complainant contends that the case presents both propositions under these sections, that the court below passed upon but the first in the order above stated, and, as to that proposition, his construction should be reversed.

Is there any force in complainant’s contention ? Every will speaks from the death of the testator, and the statutes relied upon must be considered with reference to that fundamental proposition. Not considering for the present in the will under construction the clause which is claimed to defeat a devise in remainder, we find that the testator provided a life estate in his wife, a life estate in his daughter Hannah, and a remainder in the granddaughter, Mary Jane, upon the termination of the intermediate estates for life. Two estates for life were created. Upon the termination of those life estates, the suspension of the power of alienation ceased. More suitable or simple words could not have been chosen by a testator drawing his will in conformity with the section of our statute fixing the period within which the power of alienation may be suspended in this State. There can be no difference of opinion upon this conclusion, and we do not understand that complainant contends to the contrary. The dispute arises on account of the words of the will above referred to, used in the devise of the remainder, which we italicize:

“And finally upon Hannah’s death, to my granddaughter, Mary Jane McInerny should she survive her mother Hannah. And in case the said Mary Jane dies before her mother Hannah, then it is my will that the aforesaid property be equally divided among the surviving children of my daughter Hannah.”

In urging the claim that this provision suspended the power of alienation for a period longer than that fixed by the statute, complainant propounds the query:

“Were there more than two lives in being at the time of the creation of this estate and who, by any contingency, might share in its distribution ? ”

The period of suspension is not determined by the fact that more than two lives were in being when the estate was created who by a contingency might share in its distribution, but by the number of life estates between the creation of the estate and its enjoyment in possession. The contingency under which the estate in remainder would go to the surviving children of Hannah could not operate to extend the period of suspension, for the reason that it must occur within the lifetime of Hannah. This court has said:

“ It matters not whether the estate may ultimately vest in one unborn at the time of the creation of the estate, for the existence or nonexistence of such a person has no effect upon the suspension of alienation, which must surely termínate upon the death of the life tenant. ” Torpy v. Betts, 123 Mich. 243 (81 N. W. 1094).

In that case alienation was suspended but for the life of one person, but the principle applies to this case where two life estates were created. The court quoted with approval from Gulliver v. Wicket, 1 Wils. 105:

■ “ The number of contingencies are not material if they are all to happen within a life in being.” Torpy v. Betts, supra.

It remains to be determined whether the last portion of ihe will quoted suspended the power of alienation, not based upon lives, contrary to section 8796. This depends upon whether the estate in remainder was vested or contingent. Our statute (section 8795, 3 Comp. Laws) defines such estates:

“ Future estates are either vested or contingent: They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom or the event upon which they are limited to take effect, remains uncertain.”

We find in the instant case, under this definition, that at the creation of this estate this granddaughter was such person then in being who would have such immediate right to possession. The conclusion is unavoidable that this was a vested remainder. See opinion, authorities, and notes on the distinction between vested and contingent remainders. Kountz's Estate, 213 Pa. 390 (62 Atl. 1103, 3 L. R. A. [N. S.] 639, 5 Am. & Eng. Ann. Cas. 427). Upon the contingency of the death of the grandchild during the life of the mother Hannah, the will provides for an equal division of this property among Hannah’s surviving children. This is a clause divesting the estate, but does not alter the fact that it vested on its creation in the grandchild. L'Etourneau v. Henquenet, 89 Mich. 428 (50 N. W. 1077, 28 Am. St. Rep. 310); Gray, Rule against Perpetuities (2d Ed.), § 108, and cases cited. See Hovey v. Nellis, 98 Mich. 379 (57 N. W. 255).

Our conclusion is that neither contention of complainant can be sustained. The validity of the will as construed by the court is upheld.

The decree is affirmed, with costs.

Bird, C. J., and Brooke, Blair, and Stone, JJ., concurred.


text:
    SACHSE v. HELPER.
    1. Sales — Weights and Measures — Evidence.
    The contentions of defendants, in an action for the price of rags sold, that' the evidence conclusively showed the parties contemplated that defendants should weigh the rags, and also that the defendants’ weights were shown to have been correct according to the government standard, held not supported by the evidence.
    2. Same — Quantity—Standard Weights.
    Although goods were not weighed by United States standard weights, the question of the true weight or quantity concerning which the evidence of the parties, based on their respective scales, was conflicting, was one of fact.
    Error to Bay; Collins, J.
    Submitted October 26, 1910.
    (Docket No. 118.)
    Decided November 11, 1910.
    Assumpsit in justice’s court by Eli Sachse against Samuel and Harry Helper and another for the price of goods sold. Plaintiff had judgment and defendants appealed to the circuit court. Judgment for plaintiff and defendants bring error.
    Affirmed.

      Gilbert W. Hand, for appellants.

      Lewis P. Cowmans, for appellee.
   Stone, J.

The litigation in this case involves the weight of some. rags. The plaintiff claims that in the month of June, 1908, he sold to defendants 3,080 pounds of rags at 75 cents a hundred. The defendants claim that they bought 2,540 pounds only. The difference is 540 pounds, or $4.05. There was conflicting testimony as to the weight of the rags. A careful reading of the record satisfies us that the balancing of the different scales was the only test applied by either party, and the question was as to the right weight, as matter of fact. Such was the view of the circuit judge, and he submitted the case to the jury, and they found for the plaintiff in the sum above named.

The defendants have brought error, and in their assignments of error they claim:

(1) That the court erred in not directing a verdict for the defendants, and in refusing to give defendants’ requests to charge, which were as follows:

“I charge you that the weight at Pinconning and West Bay City is no basis of the accuracy of the weights of the goods. I charge you that there is no testimony that the Pinconning weight was according to the government standard of weights, and therefore plaintiff has failed to prove the actual weight, and therefore plaintiff cannot recover.”

(2) That the court erred in charging the jury as follows:

“Thereis no agreement in this case as to when or how these goods were to be weighed between the parties. * * * There is no agreement in this case that makes the Pinconning weight binding, or that makes the Helper weight binding.”

Counsel for appellants argues his assignments of error together, and claims that the uncontradicted evidence shows that the rags sold to defendants were to be weighed by defendants on their scales. In this contention we think be is mistaken. He also claims that the defendants’ weights were the correct weights according to the government standard of weights, and that they could not be impeached or disputed until the weights of some other scales that had been tested by the government standard of weights were introduced in evidence, and he refers to the case of McGeorge v. Walker, 65 Mich. 5 (31 N. W. 601), to sustain his position. The infirmity in the proposition is that there was no evidence to support it. Defendants rely upon the testimony of Joseph Julian upon this point. That witness testified as follows :

“The proper way to test scales is by the use of test weights. The city has a set here that were bought for the use of the sealer of weights and measures in Bay City. In the fall of 1907 I sold a pair of Buffalo scales, the kind that are fixed in the ground, to Helper Bros. At that time I tested them with the testing weights. They were correct when I put them in. This was in October, I think.”

He further testified:

“ The office of sealer of weights and measures is a dead letter in this town. They pay very little attention to it.”

This was very far from showing that these scales had ever been tested by United States standard weights, or that they were correct in June, 1908.

To show how defendants’ counsel understood it at the trial, we quote from the record his language in his motion to have the court direct a verdict:

“This motion is made for the reason that one set of scales is no comparison or criterion to test another set of scales by; that the only test is the government testj that there is no evidence by either party that at the time of the weighing the test was in accordance with the government standard, either on the part of the plaintiff or on the part of the defendantsj that no presumption is to be drawn that the defendants’ scales were incorrect by bringing in issue the weights of some other scales.”

The circuit judge submitted the question of weights to the jury as one of fact, as follows:

“ There is no agreement in this ease as to when or how these goods were to be weighed between the parties. There is no agreement in this case that both of them should be present at the original weighing. There is no agreement in this case that makes the Pinconning weight binding, or that makes the Helper weight binding. The burden of proof is upon the plaintiff to show that the rags in question weighed 3,080 pounds. If you are satisfied from the testimony that the rags weighed 3,080 pounds, the plaintiff is entitled to a verdict- of $4.05. If that weight is correct, then the plaintiff is entitled to that verdict. If, on the other hand, the weight of 2,540 pounds is correct, then the defendants are entitled to your verdict. If the burden of proof shows that the weighing on the part of the plaintiff is the correct weighing, then, as I have before stated, you will give a verdict to'the plaintiff. If the testimony between the two weights is such that you cannot tell whether either of those weights is correct, your verdict will be for the defendants. The situation is such that the plaintiff must satisfy you not only that his weight is correct, but that the other weight, the weight of defendants, is incorrect. The burden of proof requires that.”

It cannot reasonably be said that because these goods were not weighed by United States standard weights the question of the true weight or quantity is forever foreclosed. There was evidence in the case, pro and con, of the different weighings, the mode of reaching results by the different witnesses, the tests applied, and all of the attendant circumstances. This evidence was, we think, properly submitted to the jury, and they were asked to find the correct weight as a question of fact.

We find no error in the record, and the judgment of the circuit court is affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    NEWTON v. DETROIT UNITED RAILWAY.
    1. Parties — Guardian and Ward —Statute of Amendments— Appeal and Error.
    An action brought by a plaintiff, described as guardian of certain minors, may, under the statute of amendments, be treated on error as brought by plaintiff in his capacity of guardian, where the cause of action was for an injury to an automobile of the wards, in the possession of plaintiff, their general guardian, and where the objection was raised not by plea in abatement but by a motion to direct a verdict at the close of plaintiff’s evidence. 3 Oomp. Laws, § 10268 et seq.

    2. Same — Infants.
    The guardian was not an improper party plaintiff.
    Error to Wayne; Hosmer, J.
    Submitted October 28, 1910.
    (Docket No. 161.)
    Decided November 11, 1910.
    Case by Lumus C. Newton, guardian of the estate of Ruth C. Newton and others, against the Detroit United Railway for damages to an automobile. Judgment for plaintiff; defendant brings error.
    Affirmed.
    Corliss, Leete & Joslyn (William Q. Fitzpatrick, of counsel), for appellant.

      Cullen, Casgrain & Hanley, for appellee.
   Stone, J.

This suit was brought by Lumus C. Newton, guardian of the estate of Ruth C. Newton, Charles W. R. Newton, J. Esther Newton, and Gilbert NewtoD, minors, by virtue of an appointment of the probate court for the county of Wayne, against the defendant to recover damages for an injury to an automobile belonging to said infants and in possession of said plaintiff, said injury having been caused by the alleged negligent conduct of defendant’s servants and employés.

The declaration alleges, among other things, that:

“On the 8th day of July, 1907, said plaintiff by his agent and servant was driving his automobile on Wood-Ward avenue in said village (Highland Park), and when at a place approximately one mile south of the Six Mile road, and while upon the car tracks of the defendant company, said plaintiff’s automobile came to a stop by reason of some temporary fault or defect in the machinery thereof. While plaintiff’s agent and chauffeur was working upon said machine, in order to get the machinery running in such a manner that the automobile might be removed from the tracks of said defendant, and while he was so acting with due care and caution and without any contributory negligence on his part, said defendant, by its servants and employés, then and there on the 8th day of July, 1907, upon said highway, did so recklessly, carelessly, and negligently run, propel, and conduct its said motor car that by and through the said carelessness of said defendant * * * said motor car came upon and struck with great force and violence plaintiff’s said automobile,” greatly breaking and damaging the same, to the plaintiff’s damage, etc.

The plea was the general issue. Upon the trial of said cause the plaintiff testified as follows:

“ I have four children whose names are Ruth C. Newton, Charles W. R. Newton, J. Esther Newton, and Gilbert Newton. These children are minors. I am guardian of the estate of these children. As guardian of these children, I owned a certain Thomas touring car in 1907. It was bought on the 28th day of June, 1907, and I paid $2,625 for it.”

On cross-examination the witness testified, among other things, as follows:

“Q. Did you own this automobile yourself, or did your children own it, Doctor ?
“A. It was bought with guardian’s funds.
“The Court: Well, then, it was the children’s automobile.
“A. The children’s automobile.
“Q. You personally have no interest in it ?
“A. No interest in it. No.”

Thereupon and thereafter certain evidence was given tending to prove that the automobile referred to was on said alleged day, through the negligence of the operatives of one of the defendant’s cars, damaged and injured, and that the extent of said injury and damage represented by the cost of necessary repairs and the depreciation in the value of the automobile equaled or exceeded the amount of the verdict of the jury hereinafter referred to.

At the conclusion of the plaintiff’s testimony, defendant moved the court for the direction of a verdict in favor of the defendant upon the ground that the declaration in the case was the declaration of Lumus C. Newton, personally, against the defendant, or that if is the declaration of Lumus C. Newton, guardian of certain minors, against the defendant, and that the proofs in the case showed that the machine, the injuries to which are sought to be recovered for herein, belongs to the minors above named:Said motion was overruled, and defendant duly excepted. The case was thereupon submitted to the jury, and a verdict for the plaintiff was found by them in the sum of $550 damages.

The same objection was urged by the defendant upon a motion for a new trial, which was denied, and the case is here upon a writ of error, the sole error assigned being that which was urged by defendant in its motion for a directed verdict, and that the court erred in not directing a verdict for defendant, and in not granting a new trial for the same reason. The question discussed by counsel for the respective parties is whether Lumus 0. Newton either personally or as guardian of the minors was entitled to recover, the defendant claiming that he was' not, and that the suit should have been brought by the minors by their next friend.

The plaintiff bases his case principally upon section 8718, 3 Comp. Laws, which reads as follows:

“ Every such guardian shall also settle all accounts of the ward, and demand, sue for and receive all debts due to him, or may, with the approbation of the judge of probate, compound for the same, and give and discharge to the debtor, on receiving a fair and just dividend of his estate and effects; and tie shall appear for and represent his ward, in all legal suits and proceedings, unless where another person is appointed for that purpose as guardian or next friend.”

The plaintiff claims that under this statute there are at least two methods of bringing suit on behalf of minor wards — one by next friend, and the other by the general guardian appointed by the probate court.

In other States the practice does not appear to beuniform. In 15 Am. & Eng. Enc. Law (2d Ed.), p. 56, the rule is stated as follows:

“An infant usually brings suit by prochein ami, or next friend, but in many of the United States the general guardian is authorized by statute to bring suit without being appointed prochein ami. * * * If such suits concern merely the possession of the ward’s property, the right to which is in the guardian, or, if they are upon contracts made by the guardian himself, they may be brought in the guardian’s own name, but generally the guardian must sue in the name of the ward, and not in his own name.”

In 21 Cyc. p. 190, it is said:

“A guardian may protect his ward’s rights in personalty by suit, and he may maintain an action to recover possession thereof, or for damages for conversion thereof, or injury thereto; and he may enforce collection of debts and rents or hire due the ward” — citing, among other cases, Norton v. Ohrns, 67 Mich. 612 (35 N. W. 175 ).

In that case it was held that the guardian of a spendthrift might bring suit in his own name as guardian to recover personal property belonging to, or debts due, his ward under the statute. In Carpenter v. Harris, 51 Mich. 223 (16 N. W. 383), an action was brought by a guardian of an infant, as such, for forcible entry and detainer, and it was held that the action was properly brought. In Reason v. Jones, 119 Mich. 672 (78 N. W. 899), suit was brought by the general guardian of an incompetent person to set aside a deed. This court said:

“It is next urged that the general guardian of an incompetent person cannot maintain this suit, but that it can only be prosecuted by a guardian ad litem. 2 How. Stat. § 6316, confers upon such guardian the management of all his estate. Section 6323 provides that he may also bring suit for all debts, etc., and that ‘he shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose as guardian or next friend.’ We think the power thus conferred is broad enough to entitle a guardian to maintain a suit to recover property which his ward was incompetent to convey away” — citing Norton v. Ohrns, supra; and Carpenter v. Harris, supra.

In Kinney v. Harrett, 46 Mich. 87 (8 N. W. 708), it was held that a guardian by appointment is not authorized in this State to bring ejectment in his own name for lands owned by the ward, and the following reason was given by this court:

“ If ejectment were purely a possessory action, there would be reason for holding that the guardian might sue in his own name. But in this State ejectment determines the title.”

The court held, further, that where the ward’s title is fully set forth in the declaration, and the guardian is only a nominal party, the objection to the pleading should be taken by demurrer, and that it is within the discretion of the court to permit an amendment. In Morford v. Dieffenbacker, 54 Mich. 593 (20 N. W. 600), which was also an action of ejectment, it was held that a declaration in the name of a guardian might be amended after the plea by making the ward the plaintiff suing by his next friend who was the guardian, and a number of earlier cases were cited in support of the right to so amend.

We are not prepared to hold that this action could not be brought in the name of Lumus C. Newton as guardian. If it is claimed that he did not sue as guardian, but in his own name, and that in using the word “guardian” he was simply describing his person, the declaration was certainly amendable. It was held in Wisconsin in Plath v. Braunsdorff, 40 Wis. 107, and in Bandall v. Lons torf, 126 Wis. 147 (105 N. W. 663, 3 L. R. A. [N. S.] 470), that an objection in an action by a guardian that the cause of action was one in favor of the ward alone and must be prosecuted by such ward should have been pleaded-in abatement, and was unavailable to the defendant after having pleaded in bar. Under the following authorities, it would be the duty of this court to-treat the amendment of the declaration, if one were necessary, as made here, as our statute of amendments is very liberal: Wood v. Lenawee Circuit Judge, 84 Mich. 521-524 (47 N. W. 1103); Smith v. Finney, 86 Mich. 484-492 (49 N. W. 305); Lockwood v. Insurance Co., 108 Mich. 334 (66 N. W. 229); Smith v. Cowles, 123 Mich. 4 (81 N. W. 916); Enright v. Insurance Co., 91 Mich. 238 (51 N. W. 928); Steers v. Holmes, 79 Mich. 430 (44 N. W. 922); Barber v. Smith, 41 Mich. 138 (1 N. W. 992); Johr v. St. Clair Supervisors, 38 Mich. 532.

So in any view of the case which we are able to take, we agree with the circuit judge that substantial justice was reached by the verdict and judgment below, that there is no error in the record, and that the judgment below should be affirmed.

Bird, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.