text:
    DEARING WATER TUBE BOILER CO. v. THOMPSON.
    Replevin — Pleadings—Recoupment.
    Defendant, under plea of the general issue, in an action of replevin for a marine boiler and attachments, the title to which was retained by the vendor, may not recoup unliquidated damages for delay in delivery and deviation from the specifications of contract of purchase.
    Error to Charlevoix; Mayne, J.
    Submitted January 20,1909.
    ( Docket No. 129.)
    Decided April 24, 1909.
    Replevin by the Dearing Water Tube Boiler Company against Claude Thompson. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      J. M. Harris, for appellant.

      Knowles & Converse, for appellee.
   McAlvay, J.

Plaintiff company of Detroit, a Michigan corporation, brought replevin against defendant for a marine boiler, together with attachments, etc., belonging thereto, in the circuit court for Charlevoix county. To the ordinary declaration in replevin filed by plaintiff, defendant pleaded the general issue, without notice of any special defense. This marine boiler was one which plaintiff had made and furnished for George B. Thompson under a certain writing dated October 2, 1902, for the price of $900, to be paid $450 with the order and the balance September 1, 1903. This agreement specified the dimensions, quality, strength, and details of the boiler, which was to be delivered f. o. b. within 90 days, loss, damage, detention, or delay on account of fire, strikes, or other occurrences beyond plaintiff’s control excepted. It was stipulated that the title to this property should remain in the company until fully paid for, and in case of default in payment the company was authorized to enter thn premises where the boiler was located and remove it without liability “either in tort or contract.” The boiler was not delivered until June 8, 1903, and was not ready for use until June 29, 1903. The boiler contracted for-was “to be of the following approximate dimensions: Width, 56 inches; length, 68 inches, etc.” The boiler delivered was 7 inches wider, and 9£ inches longer, than, these measurements. The first payment was made as agreed. No other payment has ever been made. At the time the boiler was received and installed in the boat, the record shows that no complaint was made about the delay nor any objection that the dimensions were larger than provided for in the agreement. On June 22,1904, George B. Thompson, who purchased the boiler, wrote plaintiff, in answer to a letter received by him from plaintiff, asking what he intended to do about the boiler, stating that the boiler leaked, and claiming loss on account of delay in delivery. This was a year after the delivery and installation of the boiler, and appears to be the first time such, a claim was made. Later the title of the boat was transferred by George B. Thompson to defendant, in whose possession it was found, and from whom, after demand, it was replevied.

In his opening statement of his defense made to the jury and later to the court, before the case was submitted, defendant’s attorney, among other claims, said that defendant would claim damages: (a) To the boat by cutting to admit the boiler because it was not of the dimensions ordered ; (6) the rental value of the boat for the time it was idle by reason of delay in delivery; (c) expense for wages of crew kept during this delay. Evidence in support of these claims for damages was offered by defendant, and allowed by the court, subject to the objections and exceptions of the plaintiff, on the ground that it was irrelevant and incompetent and not admissible under the pleadings, and could not be claimed by defendant, who was not a privy to the contract, and who had not shown himself entitled, as assignee of his grantor, to make such claims if any existed. Taking the view of the case indicated by the allowance of the evidence above referred to, the court charged the jury, and a verdict of no cause of action was returned against the plaintiff, upon which a judgment was entered. The case is here for review upon writ of error.

The principal question presented relates to the admission of evidence tending to show the damages as above stated. These claims for damages which the court permitted the defendant to prove were all damages claimed to have been suffered by defendant’s grantor on account of default on the part of plaintiff in the performance of its agreement to furnish this boiler of certain dimensions and within a certain time. Defendant did not claim that the purchase price had been fully paid, or that the title had ever actually passed, but insisted that plaintiff was not entitled to possession of the property because the damages claimed were greater than any balance due on the purchase price. Without reference to the question whether such defense could be admitted under the general issue in replevin without notice, we consider the more serious question to be whether such a defense would be available at all in such a case. This defense does not dispute the default in payment, the plaintiff’s title under a valid contract, the demand, or the detention of the property. The theory of defendant must be that a jury would find these several damages to amount to more than the balance unpaid on the contract, for if the damages found should be less than this amount no claim could be made that defendant could recover.

The law being well settled in this State, sustained by the great weight of the authorities, that in actions of replevin set-offs cannot be pleaded .or allowed (Pinch v. Willard, 108 Mich. 304, and cases cited; 3 Wells on Replevin [3d Ed.], § 630; Cobbey on Replevin [3d Ed.], § 791 et seq.), defendant could only insist on these damages by way of recoupment. Defendant urges that under certain decisions of this court such a defense may be interposed in replevin under the plea of the general issue, citing Clark v. West, 33 Mich. 343; Belden v. Laing, 8 Mich. 500; Singer Manfg. Co. v. Benjamin, 55 Mich. 330; Breitenwischer v. Clough, 116 Mich. 340. Relative to these cases, it is only necessary to say that the question now under discussion, whether unliquidated damages arising out of the same transaction may be recouped in replevin, was not before the court. In several States by statute counterclaim may be pleaded as a defense in replevin suits. We have examined all the available cases and find none sustaining defendant’s contention. The headnotes of a few cases indicating such holdings are not confirmed lay the opinions of the courts. For example: In Macky v. Dillinger, 73 Pa. 85, defendant claimed a charge against the property, and, as the value of the property was to be allowed to plaintiff in damages, the charge was allowed to reduce the damages by way of recoupment. In Babb v. Talcott, 47 Mo. 343, plaintiff replevied some wheat from defendant, who justified the detention on account of lien for warehouse charges. Plaintiff was allowed to recoup damages for negligent loss and destruction of wheat in extinguishment of defendant’s lien.

We do not find that this exact proposition has ever been before this court. In Thirlby v. Rainbow, 93 Mich. 164, plaintiff, the vendor of certain machinery, retained title until full payment of the purchase price. The vendee mortgaged the property, and defendant, a purchaser under a mortgage foreclosure, claimed an interest in the property to the amount paid by the vendee and to be entitled to a verdict for that amount in a replevin suit by the vendor claiming title under the contract of conditional sale. This court held that such issue could not be tried in the replevin case. The contract in that case was similar to the one in the case at bar. These conditional sales where title is retained are contracts of bailment. No title passes to the vendee. The vendor is entitled to possession in case of default. The suit in replevin to establish such possession is not a suit upon the contract for damages, but is based upon its wrongful detention. In the case at bar the equities of defendant are no stronger than in Thirlby v. Rainbow, supra, and the reasoning in that case will apply with greater force to this case. The allowance of such defenses would inject into the trial a distinct and foreign issue and would not determine the right in plaintiff to possession of the property in dispute, which is the only question to be tried. It would also establish the doctrine that recoupment may be pleaded in actions of replevin. We think such a holding would surprise the profession, and could not be maintained upon reason or authority.

This conclusion disposes of the case. Other questions raised need not be considered. Any rights or liabilities between these parties, claimed by defendant, must be determined in other proceedings. The court was in error in admitting the evidence objected to.

The judgment of the circuit court is reversed, and a new trial ordered.

Blair, C. J., and Grant, Montgomery, and Moore, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PEOPLE v. VITALI.
    Criminal Law — Murder in Second Degree — Punishment—Indeterminate Sentence Law — Construction.
    The indeterminate sentence law (Act No. 184, Pub. Acts 1905) is to be construed as amendatory and in harmony with the existing criminal statute; and, where respondent, under section 11471, 8 Comp. Laws, was convicted of the crime of murder in the second degree and sentenced to imprisonment for life, the sentence was not invalid under the indeterminate sentence law, the court in its discretion having imposed a life sentence could not fix a maximum and minimum term.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted February 11, 1909.
    (Docket No. 148.)
    Decided April 24, 1909.
    Andrea Vitali was convicted of the crime of murder in the second degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      Joseph T. Schiappacasse, for appellant.

      John E. Bird, Attorney General, George 8. Law, Assistant Attorney General, Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was informed against in the recorder’s court for the city of Detroit for the murder of Pauli Sacrona. He was duly tried and found by the jury guilty of murder in the second degree. He was later sentenced by the court to be committed to the State prison at Jackson for life.

Respondent was tried, convicted, and sentenced under section 11471, 3 Comp. Laws, which reads:

“All other kinds of murder shall be deemed murder of the second degree, and shall be punished by imprisonment in the State prison for life, or any term of years, in the discretion of the court trying the same.”

Error is assigned upon this sentence as contrary to the provisions of section 3, Act No. 184, Pub. Acts 1905; it being claimed that it is void because it is a sentence for life, and it does not fix a maximum and minimum term of imprisonment.

The act is known as the “Indeterminate Sentence Law.” Section 1 provides that hereafter any person convicted of crime committed after this law takes effect, for which the punishment prescribed by law may be imprisonment in certain prisons named, “the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term of imprisonment which shall not be less than six months in any case,” and that the maximum penalty fixed by law shall in all cases be the maximum sentence except as herein provided, and shall be stated at the time of sentence, and the judge shall recommend at the time of sentence what, in his judgment, would be the proper maximum penalty, not exceeding the statutory limit in any case. Section 2 provides that the maximum term can in no case exceed the statutory limit, and that the minimum term fixed shall not exceed one-half of the maximum term fixed by statute.

The only question raised in the case involves the construction of section 3 of this act, which provides as follows:

“Sec. 3. The provisions of this act shall not apply to any person convicted of an offense the only punishment for which prescribed by law is imprisonment in one of the penal institutions named for life: Provided, That in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix both the minimum and maximum sentence. The minimum term of imprisonment thus fixed by the court shall not exceed one-half of the maximum term'so fixed.”

This section by its terms refers to the provision of the preceding sections, wñich we have stated for the purpose of consideration in arriving at the legislative intent in construing section 3. If the contention of respondent is correct, that a life sentence under section 11471, 3 Comp. Laws, cannot be imposed, then section 3 of the indeterminate sentence law repeals the provision authorizing imprisonment for life contained in this section, and all other sections which authorize a sentence for life, or any term of years.

This court has already held: That the act of 1903, which the act under consideration repealed and superseded, was not intended to repeal any of the criminal statutes; that it was evidently intended and should be regarded rather as an amendment to the criminal statutes. In re Lambrecht, 137 Mich. 450. An examination of our statutes discloses that the construction of respondent would repeal the extreme penalty of a similar punishment provided for by statutes for 13 distinct felonies, and would operate as a release of all so sentenced for crimes committed since this law went into effect. It cannot be presumed that the legislature in this enactment entertained any such intent. This statute is susceptible of another and a reasonable construction. As was intimated in Re Lambrecht, supra, it was intended to be construed in harmony with the existing criminal statutes. It is apparent from the first paragraph that the legislature did not intend to interfere with statutes which provided only life imprisonment as a punishment, and the indication is that in the disputed paragraph the same intent continued wherever imprisonment for life is provided, and that the section refers to sentences where the statute provided imprisonment for life or any term of years and a sentence of imprisonment for a term of years had been imposed. There could be no minimum sentence in case the life sentence were given. Following the reasoning in the decisions of this court already given, and giving a construction to this section which will not be mischievous or absurd, we can say that this statute should be interpreted as if it read: Provided, that in all cases where the maximum sentence in the discretion of the court may be for life or any number of years, the court having in its discretion imposed a sentence for a term of years shall fix both the maximum and minimum sentences.

This statute having repealed no criminal statute, the discretion remained in the court before which this case was tried to sentence respondent for life or any term of years, and the court in the exercise of that discretion sentenced respondent to prison for the term of his natural life. No error was committed.

The judgment is affirmed.

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


author: /Moore, J.

text:
    PEOPLE v. KLISE.
    1. Criminal Law — Evidenoe—Proof of Other Offenses.
    On the trial of respondent charged with an assault with intent to murder, testimony of the sheriff that respondent told him of making threats and displaying weapons on prior occasions, was inadmissible.
    2. Same — Witnesses—Cross-Examination.
    Where, on the trial, respondent takes the witness stand in his own behalf, he subjects himself to the rules of cross-examination applicable to other witnesses.
    Exceptions before judgment from Emmet; Shepherd, J.
    Submitted February 11, 1909.
    (Docket No. 147.)
    Decided April 24, 1909.

      Elmer Klise was convicted of an assault with intent to kill and murder.
    Reversed.

      W. A. Seegmiller, for appellant.

      Wade B. Smith, Prosecuting Attorney, for the people.
   /Moore, J.

The respondent was charged with having /nade an assault with the intent to kill and murder. He was convicted of an assault with intent to do great bodily harm, less than the crime of murder. The case is brought here upon exceptions before sentence.

A great many assignments of error are made, but they may properly be divided into two groups; the first relating to the admission of testimony, and the second to the charge of the court. The people, in presenting their affirmative testimony, called the sheriff, who had an interview with the respondent. Over objection he was allowed to testify to occurrences, other than the one involved in this triadlas follows:

Q. What instances did he tell you about in which he had used threats or a display of weapons ?
“Mr. Dunham: I object to it as not competent, and :\not related to this transaction in question.
“ The Court: The objection is overruled.
“Mr. Dunham: An exception.
“A. He told me of one occasion where he had drawn a gun on either a filer or a sawyer. It was some employe. My recollection is that it was a filer. He spoke at the same time of drawing a knife on somebody up there. I don’t remember the occasion. He told me that somebody had assaulted him in front of the store the night previous to the night that I was up there. He said he ought to have killed him. I think he said it was a man by the name of Perry. He said he had a perfect right to kill him. He assaulted him in front of the store, and ought to have done so.”

-This testimony was clearly inadmissible under the following authorities: Lightfoot v. People, 16 Mich. 507; People v. Schweitzer, 23 Mich. 301; People v. Pinkerton, 79 Mich. 110; People v. Bennett, 122 Mich. 281; People v. Henry, 129 Mich. 100; People v. Peck, 139 Mich. 680; People v. Collins, 144 Mich. 121.

The respondent offered himself as a witness. He was cross-examined at great length. Error is assigned as to many parts of this cross-examination. The respondent, having offered himself as a witness, subjected himself to the rules of cross-examination applicable to other witnesses. Some of the cross-examination was within the rule, and some outside of it. Without calling attention to the testimony in detail, it will be sufficient to say that the rule which should be followed in the new trial may be easily gleaned from the opinions in People v. Farrell, 137 Mich. 127, and People v. Peck, supra.

The assignments of error relating to the charge of the court do not call for extended discussion. That part of the charge which it is claimed is error relates to references made in the charge to the consideration of the testimony, and the inferences to be drawn from it, some of which we have found was improperly admitted. A similar error is not likely to occur again.

For the reasons stated, theykonviction is set aside' and a new trial ordered. /

Ostrander, Hooker, MoAlvay, and Brooke, JJ., concurred.


author: MoAlvay, J.

text:
    WEADOCK v. JUDGE OF THE RECORDER’S COURT OF DETROIT.
    1. Municipal Corporations — Powers —Ordinances—Validity.
    The charter of a municipality authorizing the common council to license and regulate the keepers of junkshops, and to regulate the purchase and sale of old junk, authorizes an ordinance regulating the storage or keeping of the same; said storing or keeping being necessarily incident to said business.

    2. Same.
    An ordinance prescribed a restricted district in which the keeping of junkshops was prohibited, with a proviso that it should not be applicable to such shops as were already established at the time of its passage. It appeared that such business had then become centralized in such restricted locality. Held, that such ordinance was void on the ground of unreasonableness and discrimination.
    Mandamus by Bernard F. Weadock to compel William F. Connolly, judge of the recorder’s court of Detroit, to vacate certain orders dismissing complaints for the violation of an ordinance.
    Submitted February 16, 1909.
    (Calendar No. 23,196.)
    Writ denied April 24, 1909.

      Bernard F. Weadock (P. J. M. Hally, of counsel), in pro. per.

      Miner & Anhut, for respondent.

       As to the municipal power to regulate business of junk dealers, see note to Grand Rapids v. Braudy (Mich.), 32 L. R. A. 120.
      As to municipal power over business of junk dealers as nuisance, see note to Ex parte Lacey (Cal.), 38 L. R. A. 657.

   MoAlvay, J.

This is an application by relator, who is assistant corporation counsel for the city of Detroit, for a writ of mandamus to compel respondent to vacate certain orders made by him, dismissing two cases brought by the proper authorities under an ordinance of the city of Detroit. The undisputed facts are that two complaints were duly made, and two cases instituted in said court against Moses Rosenzweig, one complaint charging him with unlawfully and wilfully establishing and maintaining, at a specified location, “a place for the storage of junk, rags, old rope, papers, bagging, old iron, brass, lead, commonly known as a junkyard, said premises being located within the district established by the common council within which district a junkyard is prohibited to be established or maintained,” contrary to the provisions of a certain ordinance; the other complaint charging him with unlawfully and wilfully establishing and maintaining a junkshop at another and different location, contrary to the provisions of the same ordinance. The answer of respondent admits all the material facts. Answering the order to show cause, respondent asserts that the cases were dismissed and the defendant discharged for the reason that the ordinance under which the complaints were made was invalid and unconstitutional (a) because the charter gave the common council no authority to enact the ordinance; (6) because the ordinance is unreasonable. The charter provision referred to, as far as it relates to this case, reads:

“ The said council may also license and regulate * * * the keepers of junkshops * * * and to regulate * * * the buying or selling of old junk. * * *” Detroit Charter (1904), § 187.

The ordinance in question under which the cases were brought provides as follows:

“ It is hereby ordained by the people of the city of Detroit:
“ Section 1. That section 1 of an ordinance entitled, ‘An ordinance prescribing certain limits within the city of Detroit where a junkshop or what is commonly known as a junkshop, for the purchase, storage and sale of junk, rags, old rope, papers, bagging, old iron, brass, copper, tin, empty bottles, slush or lead, shall not hereafter be established or maintained and the storage or buying and selling of the same be carried on,’ approved Sept. 3, 1907, be and the same is hereby amended so as to read as follows :
“Sec. 1. No building, place or lot where junk, rags, old rope, papers, bagging, old iron, brass, copper, tin, empty bottles, slush or lead are bought, sold or stored shall be hereafter used, established or maintained within the territory within the city of Detroit described as all that portion of the city of Detroit bounded on the west by Beaubien street, on the east by Russell street, on the south by Gratiot avenue, and on the north by alley north of and parallel with Napoleon street; also all that portion of the city of Détroit lying north of the alley north of and parallel with Napoleon street and between the boundary lines of the third ward to the northerly city limits; also all that portion of the city of Detroit lying north of the alley north of and parallel with Napoleon street and between the boundary lines of the fifth ward to the northerly city limits: Provided that this ordinance shall not be construed to apply to any junkshop now being conducted or maintained within the territory herein described.’ ”

It is conceded that the common council has plenary power for the purpose of licensing and regulating the persons engaged in the business of buying and selling old junk, and that such reasonable regulations as the council may see fit to adopt are not open to judicial investigation. It is insisted that, by the provision of the charter above quoted, no power was given to regulate the storage of junk, and therefore this ordinance is invalid. We do not agree with this contention. The rule relied upon by respondent, that the powers which may be exercised by municipal corporations are all derived from the legislature and must be found (a) in the express words of the grant, or (5) necessarily incident to the powers expressly granted, and (c) powers which are essential and indispensable to the declared objects and purposes of the corporation, has always been recognized by this court (Taylor v. Railway Co., 80 Mich. 82), and that an ordinance cannot exceed the limit prescribed by the charter. The charge in the first complaint is that the defendant unlawfully kept “a place for the storage of junk commonly called a junkyard.” The words of the charter and of the ordinance must be taken as used with reference to the business designated. A junk dealer is not a warehouseman. He buys old junk from the owner or from the junk gatherer, and keeps the same in his yard or place of business until sales can be made. The charter contains express power to regulate and license the keepers of junkshops, and to regulate the buying and selling of old junk. The power to regulate has been given a broad signification by the court. To regulate means:

“To adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws.” 24 Am. & Eng. Enc. Law (2d Ed.), p. 243 et seq.

The storing or keeping of old junk which this ordinance aims to regulate is necessarily incident to the business of buying and selling junk.

Respondent’s second contention is that this ordinance is unreasonable, and therefore invalid. This is not the usual ordinance enacted under charter powers for the purpose of the regulation of a certain trade or occupation as upon a first reading would appear. This ordinance is not one providing for the confinement of a class of business within a certain restricted territory easily supervised by the authorities. Nor does it propose to exclude all of a certain class from certain territory as did the ordinance under consideration in Churchill v. Detroit Common Council, 153 Mich. 93. It is an ordinance prescribing a certain restricted locality in which a certain class of business shall not be established or maintained, with a proviso ‘£ that this ordinance shall not be construed to apply to any junkshop now being conducted or maintained within the territory herein described.” There is therefore an express prohibition against disturbing those already established in this district, and it appears in the return of respondent, to which there is no denial entered, that the traffic in junk has become centralized within the restricted locality. The validity of the ordinance is not defended as an exercise of the police powers of the municipality in the interests of the public health. Relator cites and relies upon the decisions of this court relative to the right to regulate this class of business. See City of Grand Rapids v. Braudy, 105 Mich. 670 (32 L. R. A. 116). This case, as well as the Churchill Case, supra, upheld the reasonable exercise of the authority conferred by the legislature, and both cases rest upon the proposition that such classes of business especially require police supervision. In the Braudy Case the question of restricted locality was not before the court; but this court held, where the question was squarely raised, in the Churchill Case, that the power to regulate authorized a municipality to restrict such business to certain localities. We cannot say in the ordinance before us that there is expressed any intent, by the reasonable exercise of the police powers, to regulate and control the junk business, by prohibiting its maintenance within the limited territory where it is now centralized and permitting it everywhere else in the city. The language of the court in both the cases cited indicates that from the nature of this business, and the persons who deal with those engaged in it, police supervision is necessary, and can be better maintained by license and restriction of the territory occupied. We agree most heartily with such decisions, but in our examination of the case before us are unable to convince ourselves that this ordinance can be held to be within these decisions. In the first place, it is not restrictive as to where the business may be maintained, and no reason appears why those not already established there should be prohibited from the district created. Those engaged in this business now centralized in the prohibited territory are not disturbed, although engaged in the same business and under the same kind of license. All others must keep away from this district, and scatter where they please over miles of territory. By what reasonable exercise of delegated power may such discrimination be upheld ? If a power is conferred, but the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid. People v. Armstrong, 73 Mich. 293 (2 L. R. A. 721), citing 1 Dillon on Municipal Corporations (4th Ed.), § 328. It follows that all individuals of a certain class within a municipality under its-legislation must be treated alike and without discrimination. This right is not granted by this ordinance.

Our conclusion is that this ordinance is both unreasonable and unlawfully discriminating. It is therefore unconstitutional and void. Tugman v. City of Chicago, 78 Ill. 405.

The action of the recorder’s court is sustained. The writ of mandamus is therefore denied.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


author: Moore, J.

text:
    GLOEDE v. RAUTENBERG.
    Wills — Conflicting Provisions — Construction — Intent of Testator.
    Testator owned a farm equipped with the usual amount of personal property necessary for its proper management, and also some money, notes and mortgages. By the terms of his will he gave to his wife the use, control and income for life of all his real and personal estate, and by a later provision gave to his children “all the loose money which I now have outstanding, such as notes and mortgages,” etc. Held, that it was the manifest intent of testator to give to the wife the use of the farm and the personal property thereon, and to the children the property described in the later provision; since, in the construction of wills, the real intent and meaning of the testator must, if possible, be given effect, and all the different clauses considered and, so far as possible, harmonized.

      Appeal from Macomb; Tappan, J., presiding.
    Submitted February 17, 1909.
    (Docket No. 39.)
    Decided April 24, 1909.
    Bill by John Gloede, administrator de bonis non of the estate of Dorothea Schreiber, deceased, against John Rautenberg, executor of the last will and testament of Frederick Schreiber, deceased, for a construction of said will. From the decree rendered, complainant appeals.
    Affirmed.

      Jay Fuller, for complainant.

      Spier & Dusse, for defendant.
   Moore, J.

Frederick Schreiber died on the 20th day of February, 1905, testate, leaving a widow and nine children. He left a will which was admitted to probate, and the defendant was the executor thereof. The other defendants are the sons and daughters of testator. The deceased left a farm on which he lived for many years, and personal property consisting of notes, mortgages, and land contract interests. The estate inventoried $10,951.13; about one-half the value being real estate. The will was drawn by a justice of the peace not accustomed to drawing wills. After the will was admitted to probate, the executor refused to give to the widow any part of the income from the personal property, claiming that all the personal property belonged to the children named in the will, free from any claim for income on behalf of the widow. She then filed her bill of complaint praying for a construction of the will as to the question whether or not she was entitled to the use and control of all the personal estate during her natural life. After the filing of the bill of complaint, and before the hearing, the widow died intestate. This suit was revived by John Gloede, administrator.

The circuit judge construed the will as follows:

It is my conclusion that these several sections made the following distribution of the estate: To the widow, the use, income, and control of the farm during her lifetime. To the widow the use, income and control of all personal property of deceased at the time of his death, except mortgages, notes, and land contracts that deceased had outstanding on November 27, 1899, or the proceeds of these. The title and use of the mortgages, notes, and land contracts that deceased had outstanding on November 27, 1899, or the proceeds of these passed to the seven daughters and the son immediately upon death of deceased. Section 3 of the will gives the use, income, and control of all stock and the proceeds of the sale of stock or crops to the widow during her lifetime. It appears in proof that these were sold, but there is no proof as to the amount of the proceeds of the sale held by deceased on February 20, 1905, the date of his death. If there were any such proceeds, they should have been set aside as a fund for the support of the widow during her lifetime. In view of the fact that the will was so drafted as to call for a construction of its terms in order to protect both the executor and the heirs, the executor of the estate is directed to pay out of the general estate, including the mortgages, notes, etc., the legal fees and costs of both the complainant and the estate, and also to pay to complainant’s solicitor the sum of $35, unless the complainant or someone on her behalf has paid to him that amount,” etc.

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

The provisions of the will requiring consideration are as follows:

(3) I give, devise and bequeath to my beloved wife, Dorothea Schreiber, the use, control and income of all my real and personal estate during the term of her natural life. * * *
(6) I give to my seven daughters and my son Louis, equally, that is, after my decease, all the loose moneys which I now have outstanding, such as notes and mortgages, to be divided between (them ).
“ (7) I give, devise and bequeath to my seven daughters hereto mentioned the reversion or remainder of my land situated in the township of Sterling, county of Ma-comb, Michigan, described as follows: * * * Their heirs and assigns, from and after the decease of my said wife, to these or each of these the use and behoof forever, equally divided.”

In construing wills this court has repeatedly laid down the rule that the real intent and meaning of the testator, as expresse d in the will, must be given effect if possible, and all the clauses of the will must be considered and harmonized if possible. Bailey v. Bailey, 25 Mich. 185; Barnes v. Marshall, 102 Mich. 248; Gadd v. Stoner, 113 Mich. 689; Smith v. Jackman, 115 Mich. 194. In 30 Am. & Eng. Enc. Law (2d Ed.), p. 666, it is said:

“ Surrounding facts and circumstances to be considered. In endeavoring to construe a will so as to ascertain the intention of the testator, the court will put themselves as far as possible in the position of the testator by taking into consideration his modes of thought and the circumstances surrounding him at the time of the execution of the will. Thus the courts will consider the condition of his family and estate, the comparative amounts of realty and personalty, his affection for the legatees, his social relations, the mode of life in which his family have been reared, and the means provided by him in his lifetime for their culture and happiness.”

See, also, Tuxbury v. French, 41 Mich. 7; Gilchrist v. Corliss, 155 Mich. 126. In 30 Am. & Eng. Enc. Law, p. 685, it is said:

“ Inconsistency and repugnancy. If possible, the court will reconcile two apparently inconsistent and repugnant provisions in a will in order to carry out the testator’s intentions as to the disposition of his estate, and in so doing will endeavor not to disturb the first provision further than is absolutely necessary to give effect to the second. But, if the provisions are absolutely irreconcilable, the latter will be preferred, and will prevail over the former.”

It is evident that all the provisions of sections 3 and 6 of the will cannot be given effect. When the will was made, the testator lived on a farm of good size, upon which there was the equipment of personal property usual for the proper management of the farm. The testator was the owner of some money, some notes and mortgages, and some papers which were in form land contracts, but, in fact, mortgages. This being the situation, What did the testator intend to do in this poorly drawn will ? We think it apparent he intended to give his wife the use of the farm and the personal property thereon, and to his children named in section 6 of the will the property described in said section.

The decree of the court is affirmed, with costs to ap-, pellees.

Ostrander, Hooker, MoAlvay, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    DETROIT REALTY CO. v. BARNETT.
    1. Appeal and Error — Chancery Appeals — Trial de Novo.
    Where, on appeal from an order dismissing a bill for the abatement of a nuisance, it appeared that such order was entered at the close of complainants’ evidence on the grounds that the court was without jurisdiction, and that the testimony was “wholly insufficient to sustain the relief prayed for, even though the court did have jurisdiction,” the cause being heard de novo in the appellate court, and complainants not asking, and defendants, by not appealing, not being entitled to ask, that the cause be remanded for further testimony, the court will consider the questions raised by the record as presented.
    2. Nuisances — Abatement — Equity — Criminal Law — Injunction.
    Equity has jurisdiction to abate a saloon if a private nuisance, although the nuisance is also a breach of the criminal law; and complainants, being owners and occupants of adjoining property, are affected in a manner different from that experienced by the general public so that they are entitled to the relief prayed for.

      Appeal from Wayne; Donovan, J.
    Submitted February 15, 1909.
    (Docket No. 112.)
    Decided April 24, 1909.
    Bill by the Detroit Realty Company and others against . Edward Barnett and David Oppenheim to abate a nui- ' sanee. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      James H. Pound, for complainants.

      Guy A. Miller, for defendant Barnett.
    The complainants are owners of residences in the city of Detroit; said property being upon the same street with, and in close proximity to, the saloon and dance hall complained of in this case. Defendant Oppenheim is the owner, and defendant Barnett is the lessee and occupant, of the premises used for the saloon and dance hall. The bill is filed for the purpose of obtaining an abatement of a private nuisance, and, if its allegations are true, defendant Barnett has for a long period maintained an unlawful, indecent, and vile place upon the premises with the knowledge and sanction of his codefendant. The complainants introduced the oral testimony of several witnesses, which fully proved the allegations of the bill, when their counsel was asked by the learned circuit judge if the rest of his testimony was not cumulative, and he replied that it was with the exception of that of two witnesses whom he then called, and they were allowed to testify. The court then asked if it was conceded that Barnett was doing business under a license, and, the concession not being made by complainants’ counsel, the court said to Mr. Barnett: “You can rise and say that.” Barnett then said:
    “ I can get the license and bring it in five minutes.

      “Mr. Pound: You do not need to do that.

      “The Court: You are under the regular full license ?

      “Mr. Barnett: Under the $500 license for liquor and beer, and also the United States government license, and I also have a license in tbe restaurant.”
    Thereupon the court dismissed the bill upon the ground that he had not jurisdiction, and upon the further ground that “the testimony is wholly insufficient to sustain the relief prayed for, even though the court did have jurisdiction.” We think it unnecessary to refer in greater detail to the opinion filed in disposing of this case. The complainants have appealed. The defendants did not ask that they be permitted to introduce testimony by way of defense, or raise any objection to the course taken by the trial judge.
   Hooker, J.

(after stating the facts). Upon this record we must treat the case as one to be heard de novo. The complainants do not ask, and defendants have not saved their right to ask, that the case be remanded for further testimony, notwithstanding the fact that the court said during the discussion:

The Court: The question in this case is where a man is under license by the Government and by the State he stands upon another footing from one who erects a boiler shop or a machine shop or commits a nuisance that way; and the question here is: Can the Wayne circuit court restrain the commission of a crime ? Like the closing of a saloon or correcting saloons, the regulation of conduct or the disorderly conduct of the saloon business, can they do that in the Wayne circuit court? Where we are fenced off from the city of Detroit, and.where while we have the entire civil jurisdiction over the city, we have not the criminal jurisdiction over the city whatever. Now, the defendant Barnett keeps a saloon and a restaurant under the State and United States licenses. He is under the State control. He has paid for his keeping the saloon open, and by the statutes of the State which you made, making him pay that license, and his hours are limited and bis duties are clearly defined. He has exceeded the limits and complainants’ rights. If they have rights, as the full bench have decided here practically when they were together, to secure the orderly conduct of the business is also clearly provided and defined by statute; that is, in Detroit the law fixes the hours of opening, the wrongful sale for intoxicating purposes and to minors, or on Sundays, and the control of the saloon business in Detroit is given over to the recorder’s and the police courts, and, the question not all being a new one to me and being before the Supreme Court in three ways, this being the fourth way, I do not feel I ought to enter into the broad sea of controlling the liquor business, and therefore shall decline to interfere with this until I hear from the Supreme Court, shall decline to hear a defense because I hold I am not vested with jurisdiction.”

Considerable testimony was introduced after that, including the dialogue between the circuit judge and Mr. Barnett, and he then filed the opinion called in the record the “second opinion,” which shows that he disposed of the case upon the merits, as well as upon the ground that there was no jurisdiction in the circuit court to grant relief. We have read the testimony, and unhesitatingly say that a more obvious case of private nuisance has not been presented to this court within the recollection of the oldest member, and none has been more clearly proved. We must also confess our ignorance of authorities which would justify the court in his conclusion that, while there is a 'jurisdiction in a court of equity to abate a private nuisance, ordinarily it has not jurisdiction if it is so much of a nuisance as to make criminals of those who maintain it. We find such authority neither in the brief of counsel nor in the opinion of the court, and the proposition is so at variance with the settled law that we are not surprised at its absence.

Equity has jurisdiction to abate a saloon if a private nuisance, although the nuisance is also a breach of the criminal law. See State v. Collins, 74 Vt. 43; State, ex rel. Thorndike, v. Collins, 68 N. H. 299; Joyce on Nuisances, §§ 365, 366, 422, et seq.; Beck v. Protective Union, 118 Mich. 497 (42 L. R. A. 407); 10 Current Law, p. 1042; People v. Board of State Auditors, 42 Mich. 422. That this nuisance is one which affects the rights of these complainants in a manner different from that experienced by the public in general is in our opinion obvious. We think it unnecessary to spread upon this record the obscene details of the evidence on which we base our conclusion. See Forbes v. City of Detroit, 139 Mich. 280; McCormick v. Weaver, 144 Mich. 6; Robinson v. Baugh, 31 Mich. 290; People v. White Lead Works, 82 Mich. 471 (9 L. R. A. 722); Brady v. Spring Co., 102 Mich. 277 (26 L. R. A. 175); Skelton v. Power Co., 100 Mich. 87; Fdwards v. Mining Co., 38 Mich. 46; Pratt v. Lewis, 39 Mich. 7; McMorran v. Fitzgerald, 106 Mich. 652; Treat v. Bates, 27 Mich. 390; Townsend v. Light Co., 105 Va. 22 (4 L. R. A. [N. S.] 87, 8 Am. & Eng. Ann. Cas. 567, note); Fisher v. Railway Co., 102 Va. 363 (1 Am. & Eng. Ann. Cas. 625); Rushmer v. Polsue, 4 Am. & Eng. Ann. Cas. 378 (L. R. [1906] 1 Ch. Div. 234), note; Ingersoll v. Rousseau, 35 Wash. 92 (1 Am. & Eng. Ann. Cas. 35, 38). Many more authorities in point will be found cited in complainants’ brief.

The decree dismissing the bill is reversed, and it is adjudged that said saloon, café, and dance hall as heretofore maintained by said Barnett are a nuisance, and that he abate said nuisance, and that he be perpetually enjoined from hereafter conducting or maintaining the same or any similar place upon the premises, and that defendant Oppenheim be restrained and enjoined from renting or leasing said premises for such purpose. A decree will be entered in this court awarding costs of both courts to the complainants against both defendants and remanding the cause, with directions to the circuit court for the county of Wayne to enter a decree in conformity with this opinion.

Ostrander, Moore, McAlyay, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    SHOWALTER v. MODERN WOODMEN OF AMERICA.
    1. Life Insurance — Beneficial Associations — By-Laws—Prohibited Occupations — Waiver—Instructions.
    In an action for the payment of a benefit certificate, defended on the ground that deceased came to his death while engaged in an occupation prohibited under a by-law of the society, an instruction that if the jury should find that the officers of the local society received his premiums with knowledge that he was engaged in such prohibited occupation, it was a waiver on the part of the society to insist on the provisions of said by-law, and that the failure of the officers of the society to return the amount of such premiums to the representatives of assured upon learning of the fact of such employment after the death of the assured, amounted to a ratification of the waiver by the local society, waserroneous; since (a) there had been no demand for the return of such premiums, nor failure on the part of the society to do any act to avoid a waiver of the provisions; (b) the contract of insurance being made with the society, it was not bound by the action of the local society; and (c) the certificate of insurance being in force except as to death caused by being engaged in the prohibited occupation, the society would be justified in assuming that the payments were made for the benefits which were still open to him.
    2. Same.
    Where, in such action, it appeared that the society, upon learning of the death of assured, claimed as a defense to the payment of the amount of the certificate that the assured came to his death by accident directly due to employment in a prohibited occupation, and later, on request of the attorneys for the beneficiary, furnished blank proofs of death, expressly stating that by so doing it did not w.aive its right to make the said defense, there was no waiver of such defense on the ground that it permitted the beneficiary to incur expense in preparing the proofs of death. Burnham v. Casualty Co., 117 Mich. 142, distinguished.
    Error to Lenawee; Chester, J.
    Submitted February 23, 1909.
    (Docket No. 46.)
    Decided April 24, 1909.

      Assumpsit by Agnes Showalter against the Modern Woodmen of America on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Truman Plantz and Smith, Baldwin & Alexander, for appellant.

      Bird & Sampson, for appellee.
   Montgomery, J.

This action is based upon a certificate of membership issued to the husband of plaintiff, Albert W. Showalter, a member of Wyandotte Camp of the Modern Woodmen of America. The certificate of membership and the laws of the order provided for the payment to the beneficiary named in the certificate of $1,000 in case of death, but also provided in its by-laws — which were made a part of the contract — by section 14, that any person engaged in certain occupations should not become beneficial members of the society. Among other employments designated was that of railroad brakeman on trains, except passenger trains using air brakes only. The effect upon an existing certificate of a holder becoming engaged in the prohibited employments was provided for in section 15, which reads:

“Engaging in, or entering on, or continuing in, any of the occupations or employments enumerated in section 14 of these by-laws, by any beneficial member of this society, heretofore or hereafter admitted to such membership, shall totally exempt said society from any and all liability to such member, his beneficiary or beneficiaries, on account of or claimed as growing out of the death of such member by accident directly traceable to employment in such hazardous occupation or to disease directly traceable thereto.”

Mr. Showalter, after taking out his certificate of membership, engaged in the service of the Detroit Southern Railway as a freight brakeman. His death occurred through his foot being caught in a frog and his being run over by the cars. It is obvious, therefore, that no liability attached to the defendant by virtue of the terms of the contract, unless it can be successfully contended that there was a waiver of the provisions of the policy, and this is claimed. Two grounds of waiver are urged: First, that there was a waiver by accepting the payment of the dues by the local camp with knowledge that the decedent was engaged in the prohibited employment, coupled with the fact that the dues were remitted to the general body and retained and not returned to the assured or his representatives; second, it is claimed that the waiver of this defense to the policy occurred through the action of the company in requiring or permitting the plaintiff to incur expense in preparing proofs of loss.

The alleged waiver by the receipt of the dues is based upon the testimony of the clerk of the local camp at Wyandotte, and of the plaintiff, the latter of whom testified that Mr. Morganthau, the clerk of the local camp, asked her at one time when she went to pay the dues how Mr. Showalter liked his job, and if he had plenty of work. She replied that he had, and that he, Mr. Showalter, expected to quit the service of the railroad soon; that he was going to quit the Detroit Southern as brakeman as soon as he could find something else to do. It appears that, after the death of Mr. Showalter, information of the fact that he had been engaged in braking, and that his death was directly traceable to his employment as freight brakeman, came to the home office, and the circuit judge submitted it to the jury upon this branch of the case upon the theory that the receipt of the premiums by the clerk of the local camp with knowledge on his part that the insured was engaged in the business of braking was a waiver of the right on the part of the company to insist on the provisions of by-law 15, and that the failure of the officers of the home office to return the amount of the assessment to the representatives of the assured upon learning of the fact of such employment after the death of the assured amounted to a ratification of the waiver by the local camp. We think there are two answers to this contention: First. No demand was ever made for the return of the assessment, and within the case of A. M. Todd Co. v. Insurance Co., 137 Mich. 188, we thinkit cannot be said that there was a waiver by the home office of the provisions of section 15. Nor do we think it possible to distinguish the case from the Todd Case upon the ground that what is claimed here is a ratification of a previous waiver. It is said that the local camp had already waived the provision. But the contract was with the great camp, and the waiver must be by the great camp, and a waiver which would bind the great camp must arise from a failure to do some act which it was its duty to do to avoid the waiver. No act of the assured was induced by any nonaction on the part of the great camp.

But, more than this, it will be noticed that under the provisions of section 15 the assured was not excluded from the benefits of the society. There is a social feature connected with the organization. There is also, as before stated, a provision for a payment of a benefit to the assured’s representatives in case of death. Section 15 does not wholly exclude the right to recover in any case under the policy. Had all the notice which the clerk of the Wyandotte camp had been brought home to the great camp, they would still have the right to assume that the payments of dues were for the benefits which were still open to the assured notwithstanding his engaging in an employment named in section 14. That provision only rendered the certificate void as to any claim on ac-, count of the death of a member by accident directly traceable to employment in such occupation or to disease directly traceable thereto. For death occurring from any other cause liability on the part of the company still continued, and it was not bound to assume that the payment made by the assured was with any other purpose than to maintain his policy in force for the benefits which could accrue and would accrue in cáse of death, notwithstanding the fact that he had engaged in an employment prohibited by by-laws 14 and 15. There was no waiver by reason of the acceptance of dues and assessments by this society. Upon this question the case of Modern Woodmen of America v. Talbot, 76 Neb. 621, is directly in point.

Upon the question of waiver by accepting proofs of death with knowledge of the facts as to the manner of the assured’s death, the facts are that the first information of the manner of the death of the assured came to the great camp through a notice from the clerk of the local camp. The clerk of the great camp replied to this letter, addressing the local clerk, stating that upon learning of the .occupation of the assured he should have refused to accept further dues and assessments on his account, and adding:

“You should not assist the beneficiary in executing death proofs unless called upon to furnish evidence in your official capacity as camp clerk only. It is to be regretted indeed that the Neighbor should have met his death directly from his occupation, but under the circumstances I do not see how the society is liable under the certificate held by the Neighbor. I do not think it would be best for you to put the beneficiary to any unnecessary expense in making a trip to Rock Island to present the case to the board, as the case will undoubtedly be referred to some member of the board for special investigation.”

Nothing further appears to have been done until the 30th of July, when Messrs. Bird & Sampson, attorneys for the plaintiff, wrote to the head clerk of the great camp, stating that the claim had been left in their hands for col- . lection, and adding:

“You will please inform us if there is any objection to the payment of this claim, and, if so, what. Please let us know whether the proof of death has been properly made.”

The answer to this on August 1st was:

“Will say as yet death proofs have not been filed at this office for consideration by the board of directors. Therefore the claim has never been passed upon as to whether it is a legal claim against this society. From evidence on file it appears that he was in one of the prohibited occupations, and came to Ms death by reason of such occupation. This being the fact, I presume the beneficiary realized that she has no legal claim against this society. Trusting this will supply you with the desired information,” etc.

Replying to this, on August 6th, Messrs. Bird & Sampson wrote again to the head clerk, asking that blanks for proof of death b,e sent forward. In reply to this the great clerk replied:

“The society does not consider itself liable under certificate No. 832548, issued to Albert W. Showalter through Camp No. 9980, of Wyandotte, Michigan. However, if you wish to present facts for the consideration of the society’s board of directors, you may do so, and for that purpose I enclose a complete set of death proof blanks. By furnishing these blanks the society does not waive its right to deny any and all liability to the beneficiary under the certificate issued to Mr. Showalter.”

It is claimed that expense was incurred in preparing the proofs of death and forwarding them, and it is urged that within the case of Burnham v. Casualty Co., 117 Mich. 154, there was a waiver of the right to insist upon the defense that the deceased was engaged in a prohibited employment. It is obvious that the same contention could be made as to any defense whatever. Indeed, as to any other defense than that attempted in this case, it might be possible to say upon the authority of the case cited that there was a waiver. But the reading of this correspondence makes two things clear: First. That the company did not admit liability. They took every means to disclaim that there was liability. Second. That in the very first communication to Messrs. Bird & Sampson they stated precisely the same defense that is attempted to be made in this case, namely, that from evidence on file it appears that decedent came to his death by reason of being engaged in a prohibited occupation. Again, when transmitting the blanks of proof of death, it was distinctly stated that the society did not consider itself liable. It is difficult to conceive how any other courteous answer could have been made than that which the clerk of the great camp gave. The case is clearly distinguishable from Burnham v. Casualty Co. In that case a distinct ground of defense was foreshadowed in the communication. The language of the communication was:

“Although we do not understand how you are going to' affirmatively prove accidental death in this case, under the circumstances, yet we will comply with your request, and forward the blanks as requested, subject to the notices and stipulations printed thereon.”

It was contended in that case that as to the question of whether there was accidental death there had been no waiver, but the effort was to set up another entirely distinct defense. In the present case there has been no waivering as to the nature of the defense to this claim. The very first communication of the company to its subordinate, the clerk of the local camp, as well as the first communication to Messrs. Bird & Sampson, stated with definiteness what the nature of the defense was, and the last communication again denied liability, but gave the privilege of presenting proofs of death to the society’s board of directors if they saw fit to do so. No one could read this letter and understand that these proofs of death were furnished on any other assumption than at the option of the representatives of Mrs. Showalter, and that, in doing so, they would take their chances on convincing the directors of some legal or equitable claim against the company. But that the company was insisting that the assured had been engaged in a prohibited occupation, and that for this reason there was no liability, is perfectly manifest from this correspondence. There is no room for saying, therefore, that the plaintiff was misled and induced by this correspondence to incur expense or that there is any element of estoppel present.

Reaching the conclusions we have upon the two alleged waivers, it becomes unnecessary to discuss the other questions presented.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, Ostrander, and Hooker, JJ., concurred.


author: Blair, C. J.

text:
    NOLAN v. GARRISON.
    1. Probate Courts — Jurisdiction — Property op Persons Non Compos Mentis — Statutes—Amendments—Construction.
    Under the statute (chap. 33, 1 Comp. Laws, and chap. 234, 3 Comp. Laws) the probate court has exclusive jurisdiction of the settlement of the estates of mentally incompetent persons under guardianship except where its remedies are inadequate; and the amendment of 1871 (Act No. 39, Laws 1871) to section 651, 1 Comp. Laws, is simply declaratory of the existing law, removing any doubt as to the power of chancery courts to exercise their general inherent equity powers where the remedies in the probate court were inadequate, and the expression in said amendment “originally exercised over the same matters ” refers to the exercise of such powers as theretofore existed in this State, and not to such powers as originally exercised by the courts of chancery in England.
    .2. Same.
    The fact that the legality and extent of a demand against an incompetent may be established in common-law courts does not necessarily give a court of chancery concurrent jurisdiction to enforce its decree by the ordinary process of execution ; since under chapter 234, 3 Comp. Laws, the payment of suoh debts may only be enforced by suit upon the guardian’s bond.
    3. Insane Persons — Guardianship—Custody op Property.
    Where, under the statute (sections 9234-9242, 3 Comp. Laws, as amended by Act No. 55, Pub. Acts 1901), a sale was made of property devised by will to the devisee for life and the proceeds thereof placed in the hands of a trustee to be invested and the income to be paid to the devisee, upon his being adjudged mentally incompetent and the appointment of a guardian, the court properly modified its order in directing the fund to be placed in the control of such guardian.
    ' 4. Probate Courts — Jurisdiction — Adequacy or Remedies — Presumptions.
    It will be presumed that a guardian of a person mentally incompetent will comply with his statutory duty to pay the debts of his ward under the supervision of the probate court without the necessity of the debtor’s bringing suit upon his bond; hence, it cannot be determined that such remedy is inadequate so as to give a court of chancery auxiliary jurisdiction, especially since in such case the chancery court would have no greater power than the probate court to allow a preference of complainant’s claim over those of other creditors.
    Appeal from Wayne; Murphy, J.
    Submitted January 5, 1909.
    (Docket No. 1.)
    Decided April 24, 1909.
    Judgment creditor’s bill by Frances A. Nolan against John W. Garrison, Charles Thurman, guardian of said John W. Garrison, the Detroit Trust Company, and the United States Savings Bank. .From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Walker & Spaulding, for complainant.

      Edward McNamara (Geer, Williams, Martin & Butler, of counsel), for defendants Garrison and Thurman.
   Blair, C. J.

The will of John J. Garrison, admitted to probate in 1876, devised certain real estate to his son, John W. Garrison, for life, remainder in fee to his heirs. Proceedings were taken by John W. Garrison under the provisions of 3 Comp. Laws, §§ 9234-9242, as amended by Act No. 55, Pub. Acts 1901, which resulted in the. sale of the property and the payment of the proceeds, over $130,000, to the Detroit Trust Company as trustee thereof. It was provided in the order that the fund should stand in lieu of the land, be invested, and the income paid over to Garrison. In August, 1905, John W. Garrison was by the probate court for Wayne county adjudged to be a mentally incompetent person, and Charles Thurman was appointed guardian of his person and estate. On November 16, 1905, the Wayne circuit court in chancery made an order directing the payment by the Detroit Trust Company to Thurman as guardian of “all of the net income of the fund in its hands belonging to said Garrison in quarterly payments.” Thereafter complainant instituted proceedings in equity against Garrison, his guardian, and others, which resulted in a decree in her favor on October 8, 1906, for $23,611.11 and costs. This decree was after-wards affirmed in this court. 151 Mich. 138. Having collected $7,884.12 upon an execution levy, complainant has filed this creditor’s bill to subject the income of the trust estate to the payment of the balance due upon her decree. The circuit court dismissed the bill of complaint on the grounds (1) that the probate court had exclusive jurisdiction; (2) that, if the chancery court had jurisdiction, such jurisdiction should be invoked by proceedings in the cause where the trust decree was entered. From the decree dismissing her suit complainant appeals to this court.

We think it must beheld that, under the provisions of chapter 33, §§ 646-701, 1 Comp. Laws, and chapter 234, §§ 8697-8747, 3 Comp. Laws, the probate court has exclusive jurisdiction of the settlement of the estates of mentally incompetent persons under guardianship, except where its remedies are inadequate, unless by the amendment of 1871 (Act No. 39, Laws 1871, section 651, 1 Comp. Laws), it was intended to give to the chancery courts concurrent jurisdiction of such cases. People v. Wayne Circuit Judge, 11 Mich. 393; Holbrook v. Campau, 22 Mich. 288; Dickinson v. Beaver, 44 Mich. 624; Church v. Holcomb, 45 Mich. 29; Morford v. Dieffenbacker, 54 Mich. 593; Schlee v. Darrow’s Estate, 65 Mich. 362; In re Andrews’ Estate, 92 Mich. 449 (17 L. R. A. 296); Nester v. Boss’ Estate, 98 Mich. 200; Cole v. Cole’s Estate, 125 Mich. 655; 3 Pomeroy’s Equity Jurisprudence (3d Ed.), § 1154.

Section 651,1 Comp. Laws, appears in the Revised Statutes of 1838 (part 3, tit. 1, chap. 4, § 4) as follows:

“The judge of probate shall have jurisdiction of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship.”

By Act No. 39, Laws 1871, the section was amended by adding the proviso, as it appears in section 651, 1 Comp. Laws:

“ That the jurisdiction hereby conferred shall not be construed to deprive the circuit court in chancery, in the proper county, of concurrent jurisdiction as originally exercised over the same matters.”

The section was further amended in 1905 by enlarging the power of the j udge of probate, so that he might ‘c grant rehearings and may modify and set aside orders, sentences and decrees rendered in such court. ” Act No. 271, Pub. Acts 1905.

In People v. Wayne Circuit Judge, supra, Mr. Justice Campbell said:

“ I am very strongly inclined to the opinion that under our probate system the court of chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the probate court.”

In Holbrook v. Campau, supra, Mr. Justice Cooley said, speaking for the court:

“Estates of deceased persons are not settled in equity under our laws, nor can the court of chancery interfere to remove administrators for abuse of their trust. Complete jurisdiction over these subjects is conferred upon the courts of probate, and, if the interposition of equity is demanded, it must be for some purpose auxiliary to relief being sought in those courts. * * * But we think the circuit judge was entirely right in holding that whatever jurisdiction the court of chancery formerly had of these subjects is now conferred by our law upon the courts of probate. And we have no doubt that jurisdiction in those courts was meant to be exclusive, except as the court of chancery, in exceptional cases, might render them aid and assistance by means of such auxiliary remedies, as might be needful to prevent wrong and injustice before the probate jurisdiction could be rendered effectual.”

These opinions have frequently been cited with approval since the adoption of the amendment, and the practice has been in accordance with them. To hold that the amendment had the effect to confer upon the court of chancery full concurrent jurisdiction “of all matters relating to the settlement of the estates of such deceased persons, and of such minors and others under guardianship,” as originally exercised by the court of chancery in England, would be to revolutionize our practice as understood by the bench and bar throughout the history of our State.

We are of the opinion that it was not the intention of the legislature by the amendment to confer upon the court of chancery the powers originally exercised by that court, but that it was the intention, as declaratory of the existing law, to remove any doubt as to the power of the court to exercise its general inherent equity powers where the remedies in the probate court were inadequate, and that the expression, “originally exercised over the same matters,” should be construed as referring to the exercise of the inherent equitable powers of the court as theretofore exercised in Michigan. State v. Ueland, 30 Minn. 277.

The fact that the legality and extent of a demand against an incompetent may be established in the common-law courts is not opposed to our conclusion. In Simons v. Van Benthuysen, 121 Mich. 697, the method of enforcing such a judgment was expressly left undecided. As early as 1818, at least, the guardians of incompetent persons were required to provide—

‘ ‘ For the comfortable maintenance and support of the said idiot, lunatic, non compos or distracted person and also of his or her household or family * * * and shall also be subject to the payment of all just debts owing by such person which were contracted before their distraction,” etc. 1 Terr. Laws, p. 377, § 4.

Such has been the law down to the present time. By section 8711, 3 Comp. Laws, the guardian is given “the care and custody of the person of his ward, and the management of all his estate, until such guardian shall be legally discharged.” By section 8717 the guardian is required to “pay all just debts due from the ward.” Section 8719 provides that “every guardian shall manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the comfortable and suitable maintenance and support of the ward, and his family, if there be any,” etc. These provisions are inconsistent with the view that the common-law courts may enforce their judgments by the ordinary process of execution. In our opinion their power is exhausted by the rendition of judgment, and payment must usually be enforced by suit upon the guardian’s bond. Wright’s Appeal, 8 Pa. 57; Woerner on American Law of Guardianship, § 139; State v. Dunbar’s Estate, 99 Mich. 99; Conant v. Kendall, 21 Pick. (Mass.) 36; Cole v. Eaton, 8 Cush. (Mass.) 587. In our opinion the guardian became entitled to the income of the trust fund upon his appointment, and the chancery court simply followed its legal duty in modifying its decree to that effect. In re Earp’s Estate, 2 Pars. Eq. Cas. (Pa.) 178.

It remains to consider whether the probate remedies are adequate for the enforcement of complainant’s decree. Under ordinary circumstances, the remedy by suit upon the bond, if payment were refused by the guardian, would be adequate. Conant v. Kendall, supra. It is conceded that in either the probate or the chancery court provisions must first be made for the comfortable support of the incompetent person and his family, and we are of the opinion that the court of chancery, in the exercise of its auxiliary jurisdiction, would have no greater power than the probate court to allow a preference of complainant’s debt over those of other creditors.

It is argued by complainant’s counsel that the remedy by suit upon the bond would be inadequate, because “the judgment against the guardian would be limited to funds in his hands, and the lack of funds or of adequate funds would be a defense, complete or pro tanto, according to the circumstances. In the present case repeated suits would be necessary.” We cannot presume in advance that the guardian will neglect his statutory duty to pay the debts of his ward under the supervision of the probate court, but should rather presume that he will do so, and that, therefore, it will not become necessary to bring suit upon his bond.

The decree is affirmed, with costs.

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


text:
    WATROUS v. KENTON.
    Mortgages — Discharge—Assignments—Fraud—Evidence.'
    On a bill to set aside the discharge and assignment of certain mortgages on the ground of fraud, evidence examined, and held, not to sustain the allegation of the bill, and to support a finding that complainant had understandingly executed said discharge and assignment, and that the mortgages discharged were duly paid.
    Appeal from Eaton; Smith, J.
    Submitted January 20, 1909.
    ( Docket No. 137.)
    Decided April 24, 1909.
    Bill by Mary Elizabeth Watrous against Levi Kenyon and another to set aside the discharge and assignment of certain mortgages. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Kirschman & Kline and Huggett & MePeek, for complainant.

      Frank A. Dean, for defendants.

      R. J. Kelley (Huggett & MePeek and Kirschman & Kline, of counsel), for appellant.

      Arthur Kidder (Frank A. Dean and Garry C. Fox, of counsel), for defendants.
   Blair, C. J.

The bill of complaint in this suit was filed to set aside as fraudulent two discharges and one assignment of certain mortgages, and for an accounting and foreclosure as to two of the mortgages. Prior to the 14th of September, 1904, the complainant was the owner of three mortgages: One executed by the defendants for $500, on March 12, 1901, due March 12, 1906; one executed by defendants on September 3, 1901, for $1,250, payable September 3, 1908; one executed by Joseph W. Yourex April 10, 1901, for $900, payable April 10, 1906. The mortgage for $500 covered the north 25 acres of the west fractional quarter of the northwest quarter of section 6, in Bellevue township, Eaton county, and the money was borrowed by Kenyon to pay off a prior mortgage. The $1,250 mortgage covered the whole of said fractional quarter of the northwest quarter, and the money was used in part to purchase an additional 20 acres of land.

The gist of complainant’s cause of action is set forth in her bill of complaint, as follows:

“Your oratrix further shows unto the court that she is a widow, and is 65 years old, and has been of feeble health for several years; that on or prior to the 14th day of September, A. D. 1904, one Joseph W. Yourex, of Maple Grove, Barry County, Mich., was indebted to your oratrix in about the sum of $948; that such indebtedness was secured by a mortgage on land in Barry county; that your oratrix placed said claim in the hands of said defendant Levi Kenyon for collection, and that on the day last aforesaid said Kenyon represented to your oratrix that it was necessary for him to have a power or authority from your oratrix to collect said claim; that relying upon such statement, and in compliance with such request, your oratrix went with said Kenyon to the office of Horace H. Bidwell, a notary public in the city of Battle Creek, and there signed two or three papers which said Kenyon had caused to be prepared, and represented to your oratrix that they were powers of attorney or authority for him to collect the said Yourex claim; that your oratrix, having left her spectacles at home, could not and did not read said papers, but signed and acknowledged the same, relying upon the representations and statements of said Kenyon.
“Your oratrix further avers that from the said 14th day of September, A. D. 1904, until on or about the 15th day of December, A. D. 1906, she had no intimation or knowledge that the papers so signed by her at said Bid-well’s office were anything different from that which said Kenyon represented to her before and at the time of signing; that on or about the 15th day of December, A. D. 1906, your oratrix caused an examination of the records of mortgages to be made in the register of deed’s office for the county of Eaton, and discovered for the first time that the papers so signed by her on the 14th day of September, A. D. 1904, were discharges of the mortgage hereinbefore set forth, and another mortgage hereinafter mentioned which your oratrix owned and held against the defendants herein.
“Your oratrix further avers that such discharges of mortgages were caused to be recorded by said Kenyon in the office of the register of deeds for said county of Eaton on the 15th day of May, A. D. 1905, in liber 91 of mort-. gages, on pages 368 and 364, and from such record the same appears to have been signed and executed by your oratrix.
“Your oratrix further states, and charges the fact to be, that said discharges of mortgages, if the same were ever signed and executed by your oratrix, were procured by said Kenyon by false and fraudulent representations, and were made without consideration or payment of any kind, and were procured without the knowledge of your oratrix as to their real character.”

The defendants by their answer denied all of complainant’s charges of fraud, and averred that the papers were executed understanding^ by complainant, and—

“That after the execution and acknowledgment by the said complainant of the said assignment of the Yourex mortgage and the said two discharges of mortgages thereafter on the said 14th day of September, A. D. 1904, at the home of said complainant in the city of Battle Creek, Mich., in consideration of the sum of $2,700 then and there paid to the said complainant by the said Levi Kenyon, the said complainant delivered unto this defendant the Yourex mortgage and note and said assignment of the same, together with the two discharges of mortgages so executed and acknowledged by her as aforesaid, but then and there intending to cheat and defraud these defendants, and, well knowing that this defendant could hot read, fraudulently retained in her possession the original mortgages and notes so given by these defendants to said complainant, and so fully paid, discharged, and satisfied.”

The case was heard in open court and the bill dismissed. The circuit judge in the course of his opinion says:

“The gist of the matter is as to whether Levi Kenyon paid complainant on that day $2,700 in payment of the discharged mortgages and the Tour ex mortgage assigned to said Kenyon. He says he did. She says he did not. To find either way will lead to some unnatural conclusions, or in other words to find either way will establish as a fact or facts in the case some unnatural business procedure. A careful consideration of the entire case and the proofs offered and received leads me to the conclusion that the contention of the complainant is not the truth in the case, and I do not think she has established the claim of her bill.”

The complainant’s version of the transactions of September 14, 1904, is that on that day Kenyon came to her home in Battle Creek and paid her $15, which she indorsed on the $1,350 mortgage in the presence of a Mrs. Stevens, who brought her pen and ink for that purpose. She swore that that was all the money paid her on that day; that she received no consideration for the execution of the papers ; that Kenyon said he would need a power of attorney in order that he might collect the Tourex mortgage for her.

I didn’t hesitate. I was so anxious to have the money. I wanted to pay all I owed on my place.”

She and Kenyon went down town together. She directed Kenyon to Mr. Bidwell’s office, and waited nearly an hour for him at a bank. They then went together to Bidwell’s office.

“Q. When you went up there, the papers were all ready F
“A. They were, and I walked right in and signed them. * * *
Q. Didn’t you think it was rather peculiar that it was necessary for you to sign your name several times in order to make a power of attorney F
“A. I didn’t realize that I signed it but once; that is true.
“Q. Were you a little off mentally that day ?
“A. I was very, very poorly. I was sick. I wasn’t fit to have went down there.”

Mary E. Stevens testified: That she went to complainant’s house to reside the last part of August, 1904, and left there in May, 1905. That she was there September 14, 1904, and saw Kenyon there that day, and heard him tell complainant that he had come to pay her $15, and saw the money in her hand. That she took in the pen and ink.

“ I heard her speak about the Your ex mortgage. She was to go down with Mr. Kenyon, and^give him power of attorney to collect this money. She was to sign a paper to give him power of attorney to collect it. I saw her go into the bedroom and get a paper and bring it out, and then Mr. Kenyon had arisen from the table and stepped back a little towards the door that went out, and I saw Mrs. Watrous walk across and hand him a paper. I know she went down town with him. I was there during the afternoon and evening. I was not away all that day. I did not see him there again that day, or hear of him being there. * * * I didn’t go away from the house at all.”

She also testified that she was at the house September 15th all day, and did not see Kenyon there, and that Mrs. Watrous was also there.

Kenyon testified: That he called on complainant August 21, 1904, in response to the following letter conceded to have been written for complainant by her sister, Mrs. Brouthers, viz.:

“Battle Creek, Mich., Aug. 19, 1904.
“ Mr. Kynon : I came Back to Mrs. Watrous this morning found her sick and ought of money to help herself with She wanted me to say to you that you had promised to ras her sum money ear this has wrote you and do not hear from you She say if you do not rase her sum money soon she will have to put it in a colecter’s hands for she has to ras mon to pay her bills as well as to live the first of Nove she has to ras nine hundred and fifty dollers which has to bee pade She would like for you to remorgage the twelve hundred and fifty and intres and she would take it it she is sick and must have sum money Now Mr. Kenyon she wants you to let her hear from you at once or she will have to have sumpthing dun hope to hear from you soon.
“Wrote by
“L. M. Brothers.”

That on that day he paid her $150, and it was agreed that if he paid her $2,700 on or before October 1, 1904, he should have the three mortgages. That it was in pursuance of this arrangement that he called upon her September 14th. That they went together directly to the office of Mr. Bidwell. That complainant carried with her the three mortgages. That she gave instructions to Mr. Bidwell and his son to execute the discharges and assignment in presence of a Mr. Annis. That she was in the office for about three-quarters of an hour while the papers were being prepared. That they were finally delivered to her, and she took them away with her. That, at her request, he went to her home to pay her and did there pay her $2,700, receiving from her an envelope which she said contained his papers, and which he supposed contained all of the mortgages. That on his return home he discovered that the mortgages given by himself and wife were not among the papers, and that on the next day he returned to Battle Creek to obtain them, but could not get in the house, and was informed by a neighbor that complainant had gone to Detroit. That he made no further attempt to find her, and did not record the discharges and assignment until May 15, 1905.

Mrs. Brouthers testified that she “ was there all winter after writing that letter until the next May;” that she was there all day Sunday, August 21, 1904, and did not see Mr. Kenyon there, and he could not have been there and had a long conversation with complainant without her knowing it.

“Q. He couldn’t possibly have met her in that room, and seen your sick sister on that Sunday without your knowing it ?
“A. He could not. He never was there. Now, that is so.”

Complainant testified: That the first time she called at defendants’ home for the purpose of getting interest money after September 14, 1904, was in September, 1905, when Mr. Dolph was with her. That on September 14, 1904, he came in and paid her $15:

“First he gave me a pencil. He said: ‘Here is a pencil. You can indorse it on there.’ I indorsed $15 on the $1,250. * * *
‘ ‘ Q. Did you put it on with a pencil ?
“A. The lady brought her pen and ink, come in the room and gave it to me, and I put it on there. * * * It is true that on the 14th day of September, 1904, I delivered the Yourez mortgage and note, together with the assignment of that mortgage and note, to Mr. Kenyon. I cannot tell-where Yourez mortgage and note are now. You must ask Mr. Kenyon. I turned them over to him September 14, 1904. It was turned over to him so that he could collect it. I gave him power of attorney to collect that mortgage. I gave that mortgage to him in my house. He took it down town, and I went with him. I did not ask him for the note and mortgage again that day, for he was going to collect the money for me. * * *
liQ. Isn’t it true your sister a short time before this at your instigation had written Mr. Kenyon for money ?
“A. My sister was not there at that time, but I wrote to him and other people wrote to him. I don’t think my sister wrote about that time.
“Q. On the 19th of August, 1904?
“A. No; that ain’t true. Mrs. Brouthers was not to my house. * * *
“Q. State whether that is her signature.
“A. Well, sir, I will tell you. I could not be positive about it, but my sister is here. She could speak for herself. I authorized a letter to be written to Mr. Kenyon by the lady that was at my house at that time, and the ' words in this letter are pretty much as I told her to write. I must have authorized this letter. I wanted money so bad. *■ * *
“Q. Are her initials L. M.?
“A. That is her initials, but I don’t see how they got there, because she was not at my house in 1904. I was very hard up at that time.
“Q. In response to that letter, isn’t it true Mr. Kenyon came to your house on the 21st, which was Sunday, drove over there from his home, and found you sick and paid you $150 ?
“A. No, sir. í »!• 4*
“Q. When these assignments were drawn in September, 1904, you claimed to be a resident of Chicago ?
“A. I wasn’t there at that time. I was in Chicago then.
“Q. You went back that very night ?
“A. No; I intended to have went back, but I did not. My health failed me.
“Q. Were you at home on the 15th of September?
“A. I couldn’t tell whether I was or was not. I can’t remember dates as I would like to. * * *
“Q. You are positive you did not have these mortgages with you at Bidwell’s office on the day when he drew up these papers ?
“A. Why, most assuredly I am. * * *
“Q. Isn’t it true in that workbag you had the three mortgages and notes ?
“A. No; I can prove they were locked in my bedroom. I told the lady to lock my door as I went out. They were in my bedroom on the 14th of September, 1904, only when I brought out the mortgage and signed that $15 on it.”

As affecting the probability of complainant’s claim that she understood that she was executing a power of attorney, defendants produced a power of attorney dated September 14, 1901, executed by complainant to defendant Sarah J. Kenyon authorizing her—

“To make collection and receipt for all collections made by her upon credits due the said Mary E. Watrous from any person or persons, firm, corporation or individuals, who are residents of Barry and Eaton couuties in the State of Michigan; the said Mary E. Watrous having loaned money to divers persons in said counties and contemplating the loaning of further amounts in the future at divers rates of interest, the said Sarah J. Kenyon is hereby authorized to collect said amounts and the interest accruing thereon and to receipt for same in the name of said Mary E. Watrous.”

Complainant testified that this power of attorney had been returned to her and destroyed by burning it. The defendants’ version of the transaction in the justice’s office is supported by the testimony of the justice, his son, and Mr. Annis, apparently disinterested witnesses, and not only has the complainant failed to sustain the aliegations of her bill in this regard, but the same are completely disproved.

If the question of payment stood alone for our consideration, unaffected by the testimony as to the execution of the papers, we might be inclined to hold that defendants did not have the $2,700 to pay, and did not pay it. But, viewed in the light of her proofs in regard to the papers, and relying to some extent upon the judgment of the circuit judge as to the credibility of witnesses, we are unable to find that complainant has established her case by a preponderance of the evidence. Her testimony is conflicting, unreliable, and, as to an important element of her case— that the discharges and assignments were obtained from • her by fraud — is entirely overborne by the testimony of the Bidwells and Mr. Annis. While the testimony of the defendants as to the possession of the $2,700 and the way it was accumulated is not very satisfactory, and their conduct when Hoyt was there was not such as would ordinarily be expected of honest people, the conduct of complainant in making no request for money for over a year after September 14th, when she admits, and her letter of August 19th states, she was hard up and must have money, is equally inexplicable upon this record, except upon defendants’ theory. It should be said that defendants claim that, when Dolph called, the talk was entirely about a note for $125, and not about the $1,250 note and mortgage, and we think the record supports this contention. We are not entirely satisfied that the actual transaction between these parties is disclosed by this record, but we are obliged to determine the case from the standpoint of the pleadings and the testimony before us. We are satisfied from the testimony that complainant took her mortgages to Mr. Bidwell’s office, signed the two discharges and the assignment understanding^, and delivered them voluntarily to Kenyon. The possession of the papers under such circumstances and her failure for so long a time to communicate with Kenyon, knowing that he had such papers, tends to support his ■claim that he paid her for them. In view of complainant’s unwarranted denial of knowledge of the actual transaction in Mr. Bidwell’s office, we are unable to find that complainant has sustained the allegation of her bill of complaint that she received no consideration for the execution of the papers.

The decree is affirmed.

Grant, Montgomery, Moore, and McAlvay, JJ., ^concurred.