text:
    OSBORN v. WINANS.
    Wills — Construction—Failure oír Bequest — Charge on Other Property.
    Where testator’s will provided that a fund of ¡¡>10,000 should be created and the interest therefrom paid to his granddaughter for life, but the .estate was insufficient to produce this sum, she was not entitled to have the deficit made up out of other property otherwise devolving under the will.
    Appeal from Kalamazoo; Weimer, J.
    Submitted January 21, 1919.
    (Docket No. 66.)
    Decided April 3, 1919.
    Bill by James W. Osborn, and another, executors of the last will and testament of David B. Merrill, deceased, against Mabel Winans and others for the construction of said will. From the decree rendered, Glen E. Balch, executor of the last will and testament of Mabel Winans Balch, appeals.
    Affirmed.

      George P. HopJcms, for plaintiffs.

      Harry C. Howard, for appellant.

      John W. Adams, for defendants Pratt.

      Walter R. Taylor, for defendant Kalamazoo Home.
   Ostrander, J.

David B. Merrill, of Kalamazoo, died testate January 6, 1899, leaving surviving him his widow, his third wife, a grandchild, Mabel Winans, later Mabel Winans Balch, and two nephews, Stephen B. and Clarence Pratt. The granddaughter died testate March 15, 1914, leaving three children, who are infants. Cien E. Balch, her husband, is executor of her last will and testament. The will of David B. Merrill was admitted to probate February 7, 1899, and proceedings to administer the estate have since been and are now pending in probate court. The will reads as follows:

“I, David B. Merrill, of the city and county of Kalamazoo and the State of Michigan, considering the uncertainty of human life, and being of sound mind and memory, do make, publish and declare this my last will and testament, in manner and form, that is to say: _
_ “First: I do order and direct that all my just debts and funeral expenses shall be paid as soon after my decease as can be conveniently done.
“Second: I also direct that immediately after my decease, in case it shall not have been done before, a granite fence, twelve to eighteen inches high above the ground, shall be erected around my burial lot in Mountain Home Cemetery, said cemetery being in Kalamazoo, and I direct that a certain sum of money be paid to the trustee of the Mountain Home Cemetery corporation to procure their agreement to perpetually for my lot, and see that it is kept in good order, and to keep an iron_ flower stand properly painted, and filled with a choice selection of flowers to be kept on said burial lot from the first day of May to the first day of November each and every year during the existence of said cemetery corporation, and I direct that the sum of one hundred dollars be deposited with the trustees of said cemetery corporation to draw interest at the rate of 6% per annum, said interest to be annually paid to the secretary of said corporation to compensate him for seeing that my request with reference be complied with.
“Third: I give, devise and bequeath unto my wife, Ida L. Merrill, the avails of my life insurance policy in the Life Insurance Clearing Co., of St. Paul, and also five thousand dollars to be paid to her within one year from the date of my decease. I also direct that the sum of ten thousand dollars be set apart, and properly loaned on real estate securities and that the interest accruing therefrom be paid to Ida L. Merrill, annually during her life time, and at her death the, same ten thousand dollars ($10,000.00) remain at interest secured as aforesaid, and that the interest accruing therefrom on five thousand dollars ($5,000.00) of said amount be annually paid to the Young Women’s Christian Association of Kalamazoo, and to remain in trust for their benefit during the life of the association. And twenty-five hundred dollars ($2,500.00) of the said sum shall be placed on interest for the benefit of Olivet College, principal to be paid said college within two years afteT her decease, and the remaining twenty-five hundred dollars ($2,500.00) of the said ten thousand dollars shall be placed at interest for the benefit of the ‘Widow’s Home’ hereinafter mentioned.
“Fourth: I do hereby give, devise and bequeath to my present wife, Ida L. Merrill, the use and enjoyment of my two dwelling houses situated on lot seven (7) and eight (8) in Bronson’s addition to the city of Kalamazoo, and the use of the furniture and household goods therein contained. The house on lot seven (7) to be used as a place of residence during her time of natural life. The house on lot eight (8) to be rented for her benefit. She to keep both houses in good order and. repair, to pay all taxes and assessments on the same:
_ “I also direct the rent of my two stores on the east side of South Burdick street in the city of Kalamazoo, except so much thereof as shall be required to pay' the taxes on said stores, and keep the same properly painted and in good repair, shall also to be paid to Ida L. Merrill during her natural life. At her death I hereby request that the rents from the stores above specified shall be used for the benefit of the Widow’s Home hereinafter specified.
“Fifth: I also give, devise and bequeath to my said granddaughter Mabel Winans during her natural life, the rents of the undivided half of the three stores I own jointly with James V/. Osborn, situated on the west side of South Burdick street, in the city of Kalamazoo, except so much thereof as shall be required to pay the taxes on the said undivided half of said stores, and to keep the same properly painted and in good repair. And. in case of her decease before the decease of my wife, Ida L. Merrill, I give, devise and bequeath said rents to Ida L. Merrill, subject to the payment of said taxes and cost of repair during her natural life.
“I also direct that the sum of ten thousand dollars be set apart and properly loaned on real estate securities, and that the interest accruing therefrom be paid to said Mabel Winans annually during her lifetime and at her decease, the same ten thousand dollars ($10,000.00) remain at interest secured as aforesaid, and the interest accruing therefrom be f>aid annually to the trustees of the Widow’s Home, to use in paying the expenses of Widow’s Home. In case the decease of Mabel Winans before the decease of my wife, Ida L. Merrill, said fund shall be held in trust by the administrator for the benefit of the ‘Widow’s Home.’
“I also give, devise and bequeath to my granddaughter, Mabel Winans, five thousand dollars to be placed at interest secured on real estate, the interest to be paid to her annually, and the principal when she shall be thirty (30) years of age.
“Sixth: I give, devise and bequeath to my nephews, Stephen B. Pratt and Clarence Pratt, the use of fifteen hundred dollars each, to be placed on interest on real estate securities, the interest to be paid to them annually until they each shall be thirty years of age. At that time I direct that the same shall be paid to them. Should either of said boys die before attaining the age of thirty years, I direct that the surviving one shall receive the bequest made to the deceased one. In case of the decease of both Stephen and Clarence Pratt before this bequest shall have been paid, the bequest shall revert to my estate except so much thereof as shall be necessary for their funeral expenses.
“Seventh: I direct that my stock in the Merrill Milling Co., amounting to sixty-five thousand dollars ($85,000.00) shall be disposed of by my executor as soon after my decease as it can be done for a reasonable consideration. The property to be used in meeting the bequests made by me hereby.
“Eighth: If there shall be any part of my estate left after these bequests I have already made are paid, I give, devise and bequeath the sum of five hundred dollars ($500.00) for the Children’s Home, Kalamazoo, Mich., and twenty-five hundred dollars ($2,-500.00) for the Home Missionary Society of the State of Michigan, and that whatever amount there may be left, shall be disposed of, and held by the board of trustees for the Widow’s Home for their benefit.
“Ninth: After the decease of my wife, Ida L. Merrill, and my granddaughter, Mabel Winans, I give, devise and bequeath unto the trustees of the Kalamazoo Home all the rest, residue and remainder of my estate, real and personal mixed, not otherwise disposed of, by this will for the purpose thereof, and I direct that my residence property on lots seven (7) and eight (8) of Bronson’s addition to the city of Kalamazoo, be used by the said Kalamazoo Home, as a home for poor widows of good character, residents of Kalamazoo, who have no other means of support, received only on the order of the board of trustees of said home, and that all the rest and remainder of my said property and estate be used by said trustees in the support and maintenance of said home, under the by-laws, rules and regulations, thereof.
“Tenth: At the decease of my wife, Ida L. Merrill, I give, devise and bequeath unto my said granddaughter, Mabel Winans, the use of my .two dwelling houses situate on the corner of West and Lovell streets in the city of Kalamazoo, lots seven (7) and eight (8) and so much of lot nine (9) as I own, in Bronson’s addition, for and during her life. And at her death I give, devise and bequeath to the Kalamazoo Home for poor widows as hereinbefore stated, and to be used under the directions of said trustees of said home.
“Eleventh: I hereby direct that all bequests to my wife, Ida L. Merrill, and Mabel Winans, shall be paid previous to any other bequests.
“Next in order shall be those of Stephen and Clarence Pratt. In case of any deficiency in my bequests to the Home Missionary Society, that part of my. bequests to the Young Women’s Christian Association shall be paid first. The Children’s Home next in order, then Olivet College. After that the Home Missionary Society shall be next in order.
“Twelfth: I expressly empower my executor, hereinafter named, and in case of his death or disability, the person appointed as administrator ‘de bonis non’ with my will annexed, to compound, compromise or allow time upon, or accept securities, real or personal, for any debt or debts due or owing to my estate. And I especially empower such person aforesaid, not only to do so, but I also give him full power to sell and dispose all or any part of the real estate of which I may die seized and possessed, except that during the life of my said wife and granddaughter, that portion thereof set apart for their use, shall not be sold without their consent and direction, but the sale thereof shall be postponed until after their death, at public or private sale, wherever the same may be situated for such price or prices and upon such terms and conditions as to him may seem best. And to grant and convey the same to the purchaser or purchasers thereof, his or their heirs and assigns, by proper instruments of conveyance, free from all liability, for or on account of the application of the purchase money.
“Thirteenth: I do make, constitute and appoint James W. Osborn, of the city of Kalamazoo, as the executor of this my last will and testament.
“Lastly: I expressly revoke all other wills and testaments heretofore by me made, and declare this to be my last will and testament.
“In witness whereof, I have hereunto set my hand. and seal this twenty-second day of May, eighteen hundred and ninety-six.”

In February, 1900, a bill was filed in the circuit court, in chancery, for the county of Kalamazoo to obtain a construction of certain portions of the will. Later on, other portions of the will were construed in proceedings supplementing those first instituted. Decrees were made, one in May, 1901, one in January, 1902, and from them no one appealed.

The widow of David B. Merrill remarried, the other executor of his will died, and she is now the sole representative of the estate. In 1915, she filed a petition on the footing of the former decrees for a construction of portions of the said last will. The executor of the estate of the granddaughter also asked for construction of portions of the will of said David B. Merrill. There was a hearing, opinion and a decree which was entered October 16, 1917, from which decree the executor of the granddaughter appeals. The opinion of the court, which the decree follows, fairly presents the issues and the attitude of interested parties, and it is here set out:

“The bill in this cause was filed February 24, 1900, to obtain a construction of a will executed May 22, 1896, by David B. Merrill, deceased, who died at an advanced age in Kalamazoo, January 6, 1899, leaving real and personal property including, besides the property specifically mentioned in the will, stocks, bonds, mortgages, notes, real estate and real estate contracts, the appraised value of all which was approximately $125,000. He was survived by his widow, she being a second wife, to whom he had been married but a few years, one grandchild, Mabel Winans, about twenty years of age, the daughter of a deceased daughter by his first wife, and two nephews, Stephen and Clarence Pratt, both of whom,* prior to the death of the deceased, lived in his home. Mabel Winans died March 15, 1914, having married Glen E. Balch. Testator’s widow is still living. Both Stephen and Clarence Pratt are still living. The pertinent paragraphs of the will are the third to twelfth, inclusive. The purpose of this opinion does not require that they be set out at length.
*Tn 1891 articles of association of the Kalamazoo Home were duly executed and filed by the deceased, James W. Osborn, and Alfred J. Mills, as incorporators under and by virtue of chapter 165 Howell’s Statutes, entitled ‘An act for the Incorporation of Charitable Societies.’
“James W. Osborn and Alfred J. Mills were law partners and the legal advisers of the testator. The object of such corporation was stated to be, to found a home for poor widows of good character who were residents of the city of Kalamazoo, and who had no other means of support. Six trustees were required to be elected. It does not appear that any meetings were ever held or that anything further was ever done toward perfecting the organization. The corporation has never had any endowment or assets and there never has been any reason for its existence except as found in this will.
“The testator was for many years active in business and in the affairs of the community in which he lived. His principal business was milling. He was the largest stockholder in the Merrill Milling Company.
“The will was written in long hand, admittedly under the direction of the testator himself, and without the aid of counsel. It is incapable of interpretation or execution without the aid of a court of equity in construing its more or less irreconcilable provisions.
“It is very clear that the testator believed the value of his property and particularly his milling stock to be greatly in excess of its actual worth. The milling stock instead of being of the value of $65,000, proved to be worth, little or nothing.
“Fixed legacies contained in the will aggregate $33,-000, and contingent legacies $3,000. Claims were allowed against the estate amounting to approximately $14,000, making a total of at least $47,000 to be realized from the estate, or such portion as the testator supposed would be available for that purpose.
“A decree was filed May 11, 1901, construing the will in part, and reserving for further adjudication all matters and things involved in this cause not therein determined. By that decree it was adjudicated:
“1. That the third paragraph of the will is valid.
“2. That the Kalamazoo Home is a legal and valid corporation.
“3. That the Kalamazoo Home and Widow’s Home , are one and the same and entitled at the death of Ida L. Merrill to the income of $2,500 mentioned in paragraph three.
“4. That the devises and bequests in paragraphs 4, 5, 8, 9, and 1Ó are valid.
“5. That the property bequeathed by the testator to the Kalamazoo Home should go, as provided in the will, into the hands and possession of the trustees of the corporation for the purposes expressed in the will.
“6. That the bequests and legacies made by the tes.tator are payable first out of the proceeds, of the stock held by him in the Merrill Milling Company, if the sum realized from that stock shall be sufficient, and if not, then such bequests and legacies are payable out of the general funds and properties of the estate in the order mentioned and set forth in the 11th paragraph of the will.
“In October, 1901, a petition was filed by the complainant praying for a further construction of the will. January 9. 1902, another decree was filed by which it was adjudicated that the legacies, bequeathed to Ida L. Merrill and Mabel Winans had no priority the one over the other, but stand upon an equal footing and are to be paid upon that basis.
“By the latter decree' as by the former it was provided that all other matters involved in this cause be continued for the further order, decree and adjudication of this court, and that the parties should be at liberty to bring said cause on for hearing at any time they might be desirous of doing so upon giving fourteen days’ notice thereof, and that all further and other matters involved in this cause be reserved for the further decree and adjudication of the court. No appeal has been taken from either of said decrees. The cause is now before the court upon the petitions filed by Ida Merrill, and Glen Balch, as executor of the last will of Mabel Winans Balch, who died March 15, 1914, and the answers of Stephen B. and Clarence Pratt to both petitions, praying affirmative relief, and the answer of Ida L. Merrill to such answers praying affirmative relief.
“The widow has. had the use of the two dwelling houses until the present time. The store upon the east side of Burdick street, the rents from which were bequeathed to her, has been sold, and she has had the use of the proceeds. The legacy of $5,000, mentioned in the third paragraph of the will was paid to testator’s widow four years after his death. The fund of $10,000 mentioned in the same paragraph has never been provided. Both the widow and the granddaughter, Mabel Winans, have had the use of a fund of $2,000 instead of $10,000. Allowances have been made the widow from time to time by the probate court for the care and repair of the residence property occupied by her.
“Mabel Winans has had the income arising from the proceeds of the sale of the stores upon the west side of Burdick street.
“The legacy of $5,000 mentioned in the sixth paragraph of the will was paid to her at the same time of the payment of the like legacy to testator’s widow.
“After the death of Mabel Winans Balch in March, 1914, the probate court made an order in part as follows:
“ ‘And it further appearing unto the court, upon examination of the will of said David B. Merrill, deceased, that the balance of the corpus of this trust fund should remain in trust during the lifetime of the widow of said deceased, in the event of the death of said Mabel Winans Balch prior to the death of said widow, that widow, now Ida L. Manvel, is still living.
“‘It is therefore ordered that said trustee keep possession of the $2,000 corpus of said estate, during the lifetime of the said Ida L. Merrill Manvel, and that he pay unto the treasurer of the Kalamazoo Home, being the title of the Widow’s Home provided for in the will of said deceased, the net income arising from said trust fund until the death of the said Ida L. Manvel.’
“An appeal was taken by both Stephen B. and Clarence Pratt from this order of the probate court to this court upon the law side. After the hearing of this cause a stipulation in writing was filed in the matter appealed from the probate court providing that the same be transferred to the chancery side of this court, and that said cause be determined upon the files and records therein without the introduction of any testh mony, and as a part and in connection with this chancery suit.
“The petition of Ida Merrill Manvel prays for a construction of the will that will permit the sale of the residence property on West street and the use of the proceeds of a part thereof for a purchase of another piece of residence property in which she may live; the payment to her of interest on the $5,000 legacy during the period beginning one year after the death of deceased and ending at the time of the payment of the legacy; the payment of interest to her upon the sum of $10,000 from one year after the death of the deceased so long as the petitioner shall live, and finally compensation as executrix and general direction from this court as to her rights and duties in the premises.
“Petitioner Glen E. Balch prays for interest upon the $5,000 legacy paid to Mabel Winans Balch for the period beginning one year after the death of the deceased and ending with the actual payment of the legacy. Answers to both petitions have been filed by Clare H. Stearns, trustee, asking allowance and settlement of his final account as trustee of both funds and the allowance of fees as solicitor.
“Stephen B. and Clarence Pratt filed answers in which they ask that the sum of $2,000 in the hands of said Stearns, as trustee, be not paid to the Widow’s Home but be used for the payment of their legacies.
“The authority of this court to construe the will must not be confined or permitted to conflict with the authority of the probate court in the administration of the estate of the deceased, neither should the decree to be made now conflict with the two former decrees herein.
“Both of the former decrees herein are silent upon the question of whether or not the testator intended to make a specific devise of the. remainder of the West street property to the Widow’s Home after the life use thereof to the widow and Mabel Winans. If, therefore, it appears from the will and the circumstances surrounding the testator that he so intended, we find nothing in the former decrees of this court to prevent such an adjudication.
“The general rule is that construction is to be given to the instrument which will give it effect, for courts can not inquire into the propriety of any disposition that the testator sees fit to make of his property by a legally executed will so long as it is not unlawful; nor can they adopt astute construction to defeat provisions claimed to be unjust. Beecher on Wills, page 216.
“The duty of this court is plain, namely, to ascertain if possible, first from the will itself, and second from the circumstances surrounding the testator, as well as from the extent and character of his property, the value thereof as it appeared to him, the relations between him and the legatees, his general intent, design and purpose in making this will.
“It is not for the court so to construe the will as to determine what the testator should or undoubtedly would have done had he not been mistaken as to the value of his property. In my opinion, it is too clear for argument that his manifest intent and purpose was ultimately to found a home for poor widows upon his homestead, and in the meantime to give his widow and granddaughter $5,000 each absolutely and the use and enjoyment of the homestead and adjoining residence property, but that only and the rents and income of a portion of the remainder of his property, or better perhaps, what he supposed was the remainder of his property.
“It is urged that paragraph 12 of the will authorizes the sale of all the real estate including the homestead and adjoining residence property. I do not so construe the will. We must read it from its four corners, and when considered as a whole and in the light of all the surrounding circumstances, including the organization of the corporation, the will fairly teems with an evident determination that after the death of the widow and granddaughter, the homestead property shall be used as and for a home for poor widows. The mind of the testator was so absorbed with that plan and purpose that it is found expressed and referred to repeatedly. Paragraph 4 of the will provided:
“ ‘I do hereby give, etc., the use and enjoyment of my two dwelling houses and the use of the furniture and the household goods therein contained to my present wife, Ida L. Merrill, the house on lot 7, to be used as a place of residence during the time of her natural life, the house on lot No. 8 to be rented for her benefit, she to keep both houses in good repair, pay all taxes and assessments on the same.’
“In the third paragraph, the testator directed the rent of his two stores on the east side of Burdick street to- be paid to his widow during her_natural life. There was clearly a distinction in his mind when he framed the several clauses of this paragraph.
“In the fifth paragraph of the will the- testator directed that the sum of $10,000 be set apart, and that the interest accruing therefrom be paid to Mabel Winans during her life time, and at her decease the interest therefrom be annually paid to the trustees of the Widow’s Home to use in paying the expenses of the Widow’s Home.
“Then follows this language:
“ ‘In case of the decease of Mabel Winans before tbe decease of my wife, Ida L. Merrill, it shall be beld in trust by tbe administrator for tbe benefit of tbe-Widow’s Home.’
“The only inference to be drawn from the last provision quoted is that there could be no Widow’s Home before the decease of the testator’s widow, for the reason that until that time the property provided for the home would be occupied by her; having organized a corporation for the purpose of providing a home for poor widows, the testator provided some income with which to maintain the home, but nowhere any fund with which or place upon which to establish the home except his residence property.
“Paragraph 9 of the will is particularly pertinent upon this point. It is:
“ ‘After tbe decease of my wife, Ida L. Merrill, and my granddaughter, Mabel Winans, I give, devise and bequeath unto tbe trustees of tbe Kalamazoo Home all tbe rest, residue and remainder of my estate real, personal, and mixed not otherwise disposed of by this, my will, for tbe purpose thereof, and I direct that my residence property on lot 7 and 8 of Bronson’s addition to tbe city of Kalamazoo be used by tbe Kalamazoo Home as a home for poor widows of good character, residents of Kalamazoo, who have no other means of support, received only on tbe order of tbe board of trustees of said home, and that all tbe rest and remainder of my said property and estate be ■used by tbe trustees in the support and maintenance of said home under tbe by-laws, rules and regulations thereof.’
“Paragraph 10 provides:
“ ‘At the decease' of my wife, Ida L. Merrill, I give, devise and bequeath unto my said granddaughter, Mabel Winans, the use of my two dwelling houses situated on the corner of’West and Lovell streets in the city of Kalamazoo, lots 7 and 8, and so much of lot 9 as I own in Bronson’s addition for and during her life, and at her death, Í give, devise and bequeath to the Kalamazoo Home for poor widows as hereinbefore stated and to be used under the direction of said trustees of said home.’
“The frequency with which the testator reiterated his design leaves no room for doubt as to his intent. It was his evident purpose to limit the amount that his widow and granddaughter should each receive from the corpus of his estate to $5,000, and preserve the rest, and residue thereof, subject to their use as a portion, to the residuary legatee, namely, the home for poor widows.
“The provisions for two funds of $10,000 each was made in the belief that those funds would be available and a considerable amount besides. What provisions the testator would have made had he known the actual value of his estate is not in question. Likely as not he would have been less generous both as to the legacies of $5,000 and the contemplated funds of $10,000 each.
“In my opinion the will should be construed as follows, namely:
“ (a.) Not to permit the sale of the residence property or the purchase of other property in the place and stead of it.
“(b) Interest should be paid both Ida Merrill Manvel] and the estate of Mabel Winans Balch upon the $5,000 legacies for sueh period as payment thereof was deferred after one year from the death of testator.
“(e) The corpus of the estate should not be used for the payment of the interest on the contemplated funds of $10,000 which failed for want of property from which to create them.
“(d) Ida Merrill Manvel should have the use and income of the $2,000 fund now in the hands of Clare H. Stearns, as trustee, from and after the death of Mabel Winans Balch.
“(e) Upon the death of Ida Merrill Manvel, Stephen B. and Clarence Pratt, or the survivor of them, should receive from the corpus of the estate the amount intended for them with interest from the time_ that they each attain the age of thirty years respectively. I find that it was the testator’s intention that these nephews should share in his estate subsequent to his widow and granddaughter, but prior to all others.
“(f) After the payment of the legacies to Stephen B. and Clarence Pratt, the funds decreed to the Widow’s Home should be paid. I find it was the testator’s intention first to endow the home in the several amounts stated. It is quite clear that the condition of the estate after all these years will not permit of the payment of any of the other bequests mentioned, but if there should remain any estate after the payment of the bequests to the Widow’s Home, then payment of the other bequests should be made in the order stated in paragraph 11, namely, the Y. W. C. A., the Children’s Home, Olivet College, and the Home Missionary Society.
“(g) The final account of Clare H. Stearns, the trustee of both funds, should be allowed and settled, and his fees determined upon the settlement of the decree. ■ ■
“(h) The determination of the compensation of the executrix and the matter of general direction as to her rights and duties, prayed in her petition, are in my judgment properly matters for the probate court rather than involved in the construction of the will.
(i) All parties will be allowed attorney’s fees payable out of the estate in amounts to be determined upon the settlement of the decree.”

Appellant is of opinion that the court, in arriving at the conclusions stated in the opinion, proceeded upon the assumption that “the main thought in the mind of the testator was to found a home for poor widows,” when he should have assumed that the primary purpose of the testator was to provide for his wife and grandchild, and that, assuming the primary purpose to be to provide for the widow and granddaughter, the corpus of the estate, that is to say, the fund received from the sales of realty,' ought to be diverted, in part, to paying the equivalent of the sum which would have been derived from a fund of $10,000 at interest. It is claimed that the interest upon a fund of $10,000, provided for in the fifth paragraph of the will, would have been $11,099.68, and that this amount was due to the granddaughter when she died.

The fund in the hands of trustee Stearns, some $20,000, is the proceeds of the sale, in partition proceedings, of the Merrill interest in the Merrill-Osborn business block. It is the proceeds of the sale of property mentioned in the fifth clause of the will, the rentals ©f which were bequeathed to the granddaughter. In lieu of the rent, she has been paid interest upon the sum received for the real estate. This, she having consented to the sale, or -at least not being able to prevent it, seems to satisfy the provision in the will for the payment to her of rentals. It is this paragraph of the will, also, which provides for the creation of a fund of $10,000, the interest upon which is also to be paid to the granddaughter. The testator intended her to have the rent and the interest upon the fund to be created, but the estate was insufficient to provide this fund beyond the sum of $2,000. There is no evident purpose to charge this real estate with the payment of interest upon a fund to be created out of other property. The evidence is all opposed to such a conclusion. It is clear that neither the widow nor the granddaughter has had the annual benefit which, the testator intended they should have. We find in. his purpose and in the fact that it has failed no reason for charging property ultimately otherwise devolving under the will to make up the deficit.

The court arrived at proper conclusions, and the decree should be affirmed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    KYNOCK v. WILWIN CO.
    1. Sales — Evidence—Customs and Usages — Trial—Instructions to Jury.
    In an action for the price of a steam-heating plant, where the defense was that the plant had failed to fulfill the terms of the guaranty to heat the bungalow to 70 degrees Fahr., when the outside temperature was 30 degrees below zero, all controversy as to defendant’s duty to equip the bungalow with storm windows should have been withdrawn from the jury, in the absence of any evidence of a custom to so equip new' houses in that vicinity; there being no such requirement in the contract.
    2. Evidence — Expert Testimony — Opinion—Competency — Guaranty.
    Where the defense to an action for the price of a steam-heating plant was that it had failed to heat the house-to the degree guaranteed in the contract, a graduate of an engineering school who had had an opportunity to acquire extra knowledge upon the subject of heating, and who had had more than three years’ practical experience in general engineering, was competent to testify that in his opinion the plant in question, which he had “figured,” from the size of the boiler and the number of feet of radiation, the condition the house was in — -the number of feet that should be heated — that the heater and radiators were sufficient to heat the house, if properly installed, to the degree guaranteed, although he had never before installed a plant.
    Error to Mackinac; Shepherd, J.
    Submitted January 21, 1919.
    (Docket No. 79.)
    Decided April 3, 1919.
    Assumpsit by Charles E. Kynock and another, co-partners as Charles Kynock & Company, against the Wilwin Company, Limited, for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      E. S. B. Sutton (M. M. Larmonth, of counsel), for appellant.

      Prentiss M. Brown, for appellees.
   Ostrander, J.

A representative of plaintiffs having looked the building, a bungalow, over, and having had some conversation with a representative of defendant, the agreement the parties finally 'made is evidenced by writings here set out:

“Wilwin Co Ldt,
“Trout Lake, Mich,
“Attn, Mr, W, J, Chesbrough
“Gentlemen;
“In accordance with our conversation of the other day we submit herewith a price on the boiler and radiators necessary for steam heating your log bungalow. We will guarantee that the equipment we specify will, if installed according to our recommendations, heat your building to a temperature of 70 degrees Fahr, when the outside temperature is 30 degrees below zero.
_ “The height of the boiler we recommend is, inclusive of nipples, 5'-6". Your pipes are about 18" above ground.level, therefore if you can make a pit 3'-6" deep for the boilér to set in, it will work satisfactorily. The boiler is 6'-6" longx2'-8" wide outside measurement.
“Should we be favored with your order for boiler and radiators, we will be glad to do anything in our power to see that you secure a satisfactory plant whether we do the installing or not,
“Very truly yours
“Charles Kynock & Co,
Enel, “C, W, Kynock B, M, E,”
“Heating Plant for Wilwin Co. Ltd.,
“Trout Lake, Mich.
“Boiler—
“Ideal Sectional Steam Boiler, 19 inch, No. s-19-7, 8 hour rating 900 square feet.
“Radiators—
344 square feet 2 column Rococo Radiators, 38" high.
80 square feet 3 column Rococo Radiators, 38" high.
85 square feet 20" Rococo Window Radiators.
45 square feet 13" Rococo Window Radiators.
“Price—
For the above equipment F. O. B. Factory with 30c per 100 lbs. freight allowance, boiler to be equipped with safety valve, gauges, etc., without smoke pipe, $550.00. ’
“Boiler to be shipped from Buffalo, N. Y,
“Radiators to be shipped from Detroit, Mich. You will note that we have figured this outfit to heat your building to 70 deg. at an outside temperature of 30 below. The amount of equipment needed would be considerably less if this were figured' as is ordinarily done at 70 deg. inside at zero outside.
“We recommend a chimney flue with an inside area of 96 square inches and height of 40 feet.
“On account of uncertainties in the metal market this price is subject to change without notice.”
“Wilwin, Michigan,
“Mackinac Co.,
“October 6th, 1917.
“Mr. Chas. Kynock,
“St. Ignace, Michigan.
“Dear Sir:
“Confirming our telephone conversation of today, we will accept your price of $510.00 for a complete heating outfit for our Bungalow, as specified in your letter of the 21st of September. This outfit, it is understood, will be ample to heat the different rooms of the building satisfactorily, or to 70 degrees F., as you put it.
“Kindly get equipment here as soon as possible, and arrange to have the work done for us by your firm, in order that everything may be put in correctly.
“Yours very truly,
“The Wilwin Co., Ltd.,
“By: W. J. Chesbrough.
“(Signed)”
•“St. Ignace, Michigan,
“Oct. 8, 1917.
“The Wilwin Co., Ltd., .
“Trout Lake,
“Michigan.
“Gentlemen:
“In reply to your letter of October 6th just received.
“We are writing to make sure that no differences of opinion will exist between us as to what is included in our bid of $510.00. For this sum as per our letter of September 21st we agree to furnish you with boiler and radiators only to heat your building F. O. B. Factory with a freight allowance of 30c per 100 lbs. Any other material required in doing this work such as boiler pipe covering, smoke pipe, etc., we will be glad to furnish you at cost plus a small commission for handling. We will be glad to furnish you with a competent man to install this apparatus at $6.00 per day and expenses to, from and at the job. Also a plumber’s helper at $3.50 per day and expenses if he is required.
“We have ordered the material and will make arrangements to install the apparatus at once upon its arrival.
“Yours truly,
“Charles Kynock & Co.”

Plaintiffs, furnishing the materials, proceeded to install the heating plant and turned it over to defendant. Because it did not heat the building, defendant refused to pay for it and plaintiffs brought this suit. A jury returned a verdict for plaintiffs for $902.14, and judgment was entered on the verdict. A new trial was refused, and upon the record brought into this court defendant has assigned 19 errors.

It is necessary to notice and we do notice two only of the claims of error, one becausé it requires a reversal of the judgment and a new trial, the other because the same or a similar situation is likely to arise upon a new trial.

Looking over the case through the medium of the testimonjq it seems incredible that the jury could have determined that the heating, plant, in performance, met the warranty. That it did not heat the house to a temperature of 70 degrees, even with weather much warmer than 30 degrees below zero, is a fact abundantly, it may be said conclusively, established by testimony. The theories according to which the cause was tried and submitted to the jury are well disclosed in the charge of the court. It is short and is set out here in full:

“We have for your consideration a case not very difficult — that is not very much involved — I have not made myself plain yet — it is not a complicated case.
“The plaintiff claims he sold to the defendant a furnace, for which he has not received his pay. The defendant admits that he contracted to purchase the furnace but claims that the furnace was not such a one as he bought. In other words, the plaintiff was to put in and install a furnace up there in the house in question that would heat the house, with ordinary care on the part of the defendant, in running the furnace, which ordinary care was not expressed in the contract, but the court instructs you, was anticipated —that they should use ordinary care of their house and in firing their furnace. And he agreed that the furnace would heat the rooms in that house to a temperature of 70 degrees when the thermometer was 30 degrees below zero outside.
“He is claiming he put in such a furnace. The defendant claims he has not.
“If he has put in such a furnace, he is entitled to recover at your hands a verdict of $902.14. If he has not put in such a furnace he is not entitled to recover anything, and the furnace still belongs to him, and not to the defendant.
“In this connection lest I forget to state it later, the burden of proof is upon the plaintiff. The plaintiff must have proved his case by preponderance of the testimony — by testimony that is more convincing than that produced by the defendant, or he is not entitled to recover. On the contrary, if he has proved his case by- a preponderance of the testimony, he is entitled to recover.
“Now the plaintiff went up there and looked at the house, and saw what kind of a proposition there was before him. He is bound by the conditions as he found them. And in that connection I charge you, that when he saw those' pipes there — and it was his duty to see them if he did not — that if he was not satisfied with those pipes, that it was his duty to make his contract with reference to them, and tell the defendant that different pipes must be used. I mean the pipes that were already installed in the house. They were a part of the house to be used for heating by á furnace there, and he is presumed to have contracted by the conditions of the house as he found it. That eliminates that pipe proposition.
“The defendants say that after the furnace was installed, that though they used their utmost endeavor in firing it — and used different kinds of fuel — and not only used the heat from the furnace, but the heat from the fireplace — that still the heat so far from being 70 degrees temperature in the large room was uncomfortable and impossible to live in, and they were obliged to move out. If that is the case and that was not their fault, then it was not such a furnace as they bought, and not such a furnace as they were bound to pay for.
“The plaintiff claims that this was due to the fact that the boiler was installed at a greater distance from the house, than was contemplated when the contract was made — than was planned for by the plaintiff. Now if moving that boiler that distance away, was the cause of not heating the house to the degree contracted for, then the plaintiff is entitled to recover for the boiler — for the furnace — if the furnace would have heated the house 70 degrees temperature inside, with a temperature of 30'degrees blow zero outside, if the boiler had been put where it was contracted.
“The defendant in answer to that says that the putting of the boiler outside would make but slight difference any way. And further he says even with the boiler outside, the boiler heated the radiators as hot as was required — as hot as steam would make them and that therefore it would make no difference then. The province of the boiler is to heat the radiators, and if the boiler heated the radiators as hot as steam could make them, it don’t make any difference whether the boiler was away six feet, or six hundred feet, or six miles, so far as the placing of the boiler far off is concerned. It didn’t make any difference they claim; and if it didn’t make any difference, then the plaintiff could not complain if the defendants have made some change in the conditions of the contract, so long as the change exerts no material difference — it will not void the contract on either side.
“It is the claim of the plaintiffs also that ordinary prudence required of the defendants that they should have placed storm windows on the house. If placing storm windows on the house, together with the boiler in the place where it was located in the first place, would have rendered the furnace, such a furnace as they agreed to furnish, then he would be entitled to recover.
“You understand, do you not, that the plaintiff was entitled to recover if the furnace, if put in according to contract, would have done the work. If it would have not done the work, even if the storm windows had been on the house and the boiler had been put 6 feet from the radiator, as contemplated, still if it would have not done the work, then the plaintiff is not entitled to recover. If it would have done the work, he would be entitled to recover.”

The bungalow was a new building. In its outside walls a large amount of glass was used in windows and doors. It does not appear that there was any fault found, or to be found, with the glazing of windows or doors or that the construction was in any respect faulty, so far as like construction can be made effective in excluding air and cold. After plaintiffs had rested their case, upon the cross-examination of Mr. Will Chesbrough, the first witness for defendant and a representative of defendant, he was asked: “Did you put storm windows on your building?” and answered, “No, sir.” Objection being made by counsel for defendant, this colloquy followed:

“Mr. Brown: I think it is admissible if we can later show that it is customary and usual. Any man who lives up here in this country knows, that it-is a customary practice to put storm windows and doors on a building in this community.
“Mr. Larmonth: We are working under a specific contract. It makes no difference what the usual custom was.
“The Court: Of course he is bound to use ordinary prudence and ordinary care in maintaining the building and keeping up fires.
“Mr. Larmonth: Suppose he had built a building that was not lathed and plastered, as many people do, and this man went in there and took a contract to heat it, and should come in there afterwards and say ‘You ought to have lathed and plastered it.’
“The Court: If he had the lath on, he would have been expected to finish it.
“Mr. Larmonth: Surely; and if he had the frames for storm windows, he would be expected to put glass in.
“The Court: Well, it is out of order. I think it would be necessary to prove custom first. We will reserve that until that is done.
“Q. Did you at any time tell the American Radiator Company that you had storm windows?
“A. No, sir.
“Mr. Brown: 1 offer in evidence exhibit 7.
“Mr. Larmonth: We would object to it as irrelevant and immaterial and not a communication between the parties to the suit, but is a request to an outside concern, and no showing that the plaintiff saw it or relied upon it in making his contract.
“Mr. Brown: It is offered for rebutting the present testimony of the defendant.
“Mr. Larmonth: If you are offering it for just the one purpose, we shall object to it for that.
“Mr. Brown: For what reason?
“Mr. Larmonth: Immaterial.
“The Court: The witness may not be impeached on immaterial matters. *
“While_ the admission is not contractural, I think it is admissible, because if he had storm windows it was his duty to put them on.
“Mr. Larmonth: Note an exception.
“Mr. Larmonth: I object to his reading anything to the jury except that part directly—
“Mr. Brown (interrupting) : That is all I am going to read. Referring to his house and the storm windows. ‘Yes’ is the answer of Mr. Chesbrough.
“Q. Was that answer true, Mr. Chesbrough, or not?
“A. No, sir.
“Q. It was not true. Why did you so state it to the American Radiator Company?
“A. When I figured that out that way, that was a part of their questions, and I put that down because I assumed eventually we would have them.
“Q. That was not true at that time?
“A. No, sir.”

Upon cross-examination of another-witness for defendant, he was asked:

“Q. Would you say that it would be ordinary prudence and care to put storm windows on such a dwelling as this?”

There was objection and the following:

“Mr. Brown: It goes to the precise question that the court has ruled on; that I can show what the ordinary custom or rule would be.
“The Court: I think I will allow that.
“Q. What would you say, Mr. McGuire?
“(Question read to witness.)
“A. Yes, sir, it would.
“Q. It would be?
“A. Yes, sir.”

In view of this testimony, the witness on redirect examination testified as follows:

“Q. Would that become necessary as the building grew older than it would be at the present time?
“A. It would; it would be absolutely necessary afterward.
“Q. But now everything closes tight?
“A. The building at the present time is as tight as a bottle but it will open up as soon as it gets enough heat in that building to shrink the lumber.”

During the argument to the jury by the attorney for plaintiffs, there occurred the following:

“There was no testimony on the part of the defendant that this house would not have been sufficiently heated if equipped with storm windows.
“Mr. Larmonth: I take an exception. Mr. McGuire testified that even with storm windows the plant would not have been large enough to heat the house. I wish to take an exception to the statement of counsel that there was no proof offered that this plant would not have been sufficient if there had been storm windows, on it. Mr. McGuire positively testified that it would not have heated the room even with storm windows on.
“Mr. Brown: I have stated it just exactly as the evidence was.
“The Court: I think the testimony was contradicted by inference. I do not pretend to remember all the evidence; but the testimony of the two plumbers who stated that the radiation should have been nearly double what it was — that contradicted.”

The charge of the court upon this point is above set., out.

The testimony referred to and the charge of the court upon the subject of storm windows may account for the verdict which was returned. No custom of the country was proved or attempted to be proved, no testimony tends to prove that there were storm windows in position or constructed, and no claim is made that plaintiffs before making the contract in question here or before installing the plant knew anything about the letter, or communication, sent by defendant, to the American Radiator Company, brought to the attention of the jury by plaintiffs. Mr. Charles Eynock testified for plaintiffs:

“There is á great deal of glass surface in the house, and I took that into consideration in figuring the amount of radiation I would have to put in the house.” ❖ ❖ ❖

He, the principal witness for plaintiffs, the man who professed ability to determine the capacity of the heating plant required, does not intimate that he understood, or believed, that storm windows were to be placed on the house. The contract, made after an inspection of the premises by plaintiffs’ agent, is silent upon the subject of storm windows. We assume that it is not possible to show that all dwellings in the locality are equipped with storm windows. It appears, therefore, that whether it would have been prudent for defendant to install such equipment is wholly immaterial to the issue.

Under some misapprehensions, we think, of what the language of the charge was, the court, in denying the motion for a new trial, said upon this subject:

“Many of the allegations of error in the storm window controversy are based on the assumption that the court held that evidence of an agreement as to storm windows prior to the execution of the written contract was admissible. The court admitted no such testimony, but on the contrary ruled it out. It was held that it was the duty of the defendant to use ordinary care and prudence and testimony as to what proper or rather ordinary care was, was admitted.”

But prudence on the part of defendant, or ordinary care, in this connection meant but one thing. The advice which was given to the jury had the effect to put plaintiffs in the position they would have occupied if the'contract had called for storm windows and defendant had neglected to use them. The whole subject should have been withdrawn from the consideration of the jury.

Defendant complains because the court refused to strike out certain testimony of the witness Kynock called by counsel expert testimony. The witness, as has been stated, inspected the premises and made the necessary estimates for the steam plant which was installed. He had never before installed a steam heating plant, but he testified that he was a graduate of the engineering school in the University of Michigan, had three years’ practical experience near St. Louis, Missouri, in general engineering, and some further experience during the last preceding three years at St. Ignace, Michigan; that he had studied under heating experts and a part of his university course was “in the heating and ventilating line.” He testified further that:

“From the. size of the boiler and the number of feet of radiation, the condition the Wilwin house was in — that is the number of feet that 'should be heated, I would say that the heater and radiators were sufficient to heat that house, if properly installed, to 70 degrees inside when it is 30 degrees below zero outside.”

This is the only opinion he expressed upon direct examination. On cross-examination he restated his education, or means of education, and his experience, when the motion to strike out was made, refused and exception taken. He was then cross-examined at length and his estimates and method shown to the jury. Counsel say in the brief:

“Therefore, we find a theorist and not a practical person, with any experience, posing before this jury as an ‘expert’ as to steam heating. He knew no more than the juryabout the.matter, yet he was permitted to tell how this plant should be installed. How much radiation. How much boiler capacity. Where the radiators should be set, and how many, etc.; when as a matter of fact he knew from experience nothing whatever about the subject. It was all a theory and an experiment with him.”

In considering the ruling complained about, it must be kept in mind that the contract had been made upon the estimates or advice of the witness. His statement that in his opinion a sufficient plant had been provided for in the contract was but a re-affirmation of what the contract implies. He had “figured” the plant. He possessed,- at least had had opportunity to acquire, extra knowledge upon the subject of heating. He had had some experience in dealing with heating problems and although he had never before installed *a steam heating plant we cannot think it was error to refuse to strike out his opinion, expressed in the words above set out. Beyond that, plaintiffs’ counsel did not take him. It was defendant’s counsel who conducted him into the realm of expert testimony.

The judgment is reversed, with costs to appellant, and a new trial granted. '

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
      In re WILEY.
    Contempt — Invalid Order — Divorce—Alimony.
    Where, in divorce proceedings, an order of the chancery-court directed to a hank to pay money belonging to the husband to the wife’s attorney was invalid because1 the bank was not a party thereto, the cashier of the bank was not in contempt in disregarding said order.
    Certiorari to Wayne; Webster, J.
    Submitted February 6, 1919.
    (Docket No. 73.)
    Decided April 3, 1919.
    George Wiley was adjudged guilty of contempt of court.
    Reversed.

      Archer F. Ritchie (William V. Moore, of counsel), for appellant.

      Frank C. Sibley (James M. Cleary, of counsel), for appellee.
   Ostrander, J.

Rose- McFarland, in her petition, filed some time in May, 1918, sought to obtain an order by which a part of the property and estate of her husband, Russell M. McFarland, or a part of his earnings and income, should be allotted, assigned, set apart and paid to her “as alimony and for her support and maintenance,” relying upon the provisions of—

“An act to provide wives with property and maintenance from their husband’s estates when neglected or deserted by them, or when the husband has become an habitual drunkard or has practiced extreme cruelty towards his wife or committed any offense sufficient to entitle the wife to a decree of divorce or separation.” 8 Comp. Laws 1915, § 11479 et seq.

She set out in the petition that her husband is capable of earning and that he earns from $200 to $500 monthly, that he owns certain redi estate in the State of Indiana, and that he has, as she is advised, “cash in the Wayne County & Home Savings Bank, Detroit, Michigan.” She makes her husband sole defendant in her petition, praying for an injunction restraining him from disposing of any of his property, and that the said bank “be likewise enjoined until the further order of this court.” An injunction issued, by the terms of which—

“it is further ordered that the Wayne County & Home Savings Bank, a Michigan corporation, is enjoined from delivering or disposing of any moneys or property belonging or owing to said Russell M. McFarland until the further order of this court.”

This was served upon the bank on or about May 18, 1918, the officer upon whom service was made being George Wiley, vice-president of the bank. In July, 1918, the court made an order requiring the husband to pay petitioner, or her attorney, $50, as an attorney’s fee, and to the clerk of the court $15 weekly, in advance, as temporary alimony, beginning June 22, 1918. This order contained the further provision that the money in the said bank “be held for expenses of plaintiff in case of her undergoing an operation, or medical treatment.”

Upon her further petition, which set out that the defendant husband had not paid the alimony and had refused to do so, or the solicitor’s fee, praying that the alimony theretofore directed to be paid be taken from the fund in the said bank, and that an order be ma‘de for the payment of $50 attorney’s fee and back alimony of $60, directed to said bank, an order was made, directed to the said bank, commanding it to pay petitioner’s attorney the sum of $110

“of the money now held by you belonging to Russell M. McFarland, and subject to the order of this court.”

A copy of this order was presented to Mr. Wiley with a request for the payment of the money, and the request was refused. This being brought to the attention of the court by the affidavit of petitioner’s attorney, the court on July 30, 1918, made an order requiring Mr. Wiley to show cause why he should not be punished for his alleged misconduct in the premises. In his answer Mr. Wiley says that he is advised by the attorneys for the bank that the order to the bank for the payment of the money is void, because entered in a proceeding to which the bank is not a party, the bank having no opportunity to be heard before the order was granted. The answer further sets out that when the injunction was served Russell M. McFarland had on deposit in the bank in an ordinary commercial account $185.15 and as a consequence the bank was then indebted to him in that amount. It is denied that any disrespect to the court was or is intended, asserted that the bank is acting in good faith and that the order affords the bank no protection. Accompanying the answer is the affidavit of the attorney for the bank, who says he has consulted the general counsel for the bank and is of opinion that the order of the court is void, affording the bank no protection in the payment of the money, and that he advised the bank not to comply with the order. Mr. 'Wiley was found guilty of contempt, fined $50, ordered to pay plaintiff in the original suit $110, “as compensation for the injury done to her, by reason of said misconduct and contempt,” to pay the expenses of the contempt proceeding to plaintiff, taxed at $50, and to stand committed to the common jail of the county until such sums are paid or until the further order of the court.

In the return to the writ of certiorari, which appears to have been issued, not to the court, or the clerk thereof, but to Judge Webster, it is said, among other things, that the order to the bank for the payment of the money was “OK’d by Asher L. Cornelius, attorney for the defendant, who had previously stipulated with the attorney for the plaintiff that this money should be so used.”

It is further returned that the opinion of Judge Webster, and the findings he made, are made a part of the return. A part of the matter thus referred to is the following:

“I wish to add further that under section 5391, judicature act, which is as follows: ‘Parties to suits, attorneys, counselors, and all other persons, for the nonpayment of any smm of money ordered by such court to be paid, m cases where by law execution cannot be awarded for the collection of such sum; the disobedience of or refusal to comply with any order of such court for the payment of alimony, either permanent or temporary, or costs made in any suit for divorce or separate maintenance, and any other disobedience to any lawful order, .decree of process of such court.’ It is under that section that I fine Mr. Wiley $50.”

The reference is undoubtedly to chap. 5, § 1, subd. 5 (8 Comp. Laws 1915, § 12268).

It is not claimed that the bank or Mr. Wiley has, directly or indirectly, violated or disobeyed, or aided McFarland in disobeying, the injunction.

Whether Mr. Wiley was in contempt is to be decided upon the facts existing when payment of the order of the court was refused. The court has made or directed no inquiry to ascertain whether the. defendant McFarland is a depositor in or creditor of the bank, and, if he is, to what extent the bank owes him money. With no information upon the subject, so far as is disclosed by the record, except that afforded by- the petition of the wife, the court made an order, addressed to the bank, directing it to pay out $110 on McFarland’s account. It is true that by the admission of the bank it appeared, before sentence was pronounced, that the bank was debtor to McFarland in a sum greater than the order called for, but this disclosure came after an officer of the bank had been required to show cause why he should not be punished for contempt for disobeying the order. The question presented would be no different if the order had required the payment of $1,000 or of $5,000, or if, in fact, the bank was a creditor and not a debtor to McFarland. Thd first opportunity, of right, to show what the facts are was afforded after an officer of the bank was brought into court to answer for an alleged contempt. It is, of course, wholly unimportant that the attorney for McFarland “OK’d” the order. A valid order of a court of chancery does not require the O. K. of counsel, and an invalid order does not, as a rule, become valid upon being “OK’d” by counsel for one of the parties to the suit. Nor could the bank, if it knew of the O. K., rely upon the approval of counsel for the depositor in disbursing his money.

The jurisdiction possessed by a State over property, tangible or intangible, within its border, regardless of the residence or presence of the owner, is not questioned. Constantly, the courts of the various States seize and apply to the satisfaction of their obligations property belonging to nonresidents as well as residents. Deposits in banks within the State are property within its jurisdiction, and within the jurisdiction of its courts, subject to be sequestered, seized, and finally applied in satisfaction of the debt of the defendant debtor. Instructive cases, generally, upon this subject, are Pennington v. National Bank, 243 U. S. 269 (37 Sup. Ct. 282, L. R. A. 1917F, 1159); Wood v. Price, 79 N. J. Eq. 1 (81 Atl. 1093); Twing v. O’Meara, 59 Iowa, 326 (13 N. W. 321); Murray v. Murray, 115 Cal. 266 (47 Pac. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97); Bragg v. Gaynor, 85 Wis. 468 (55 N. W. 919, 21 L. R. A. 161). This jurisdiction of the State over property within its borders, exercised in the interest of creditors of the owners of the property, is evidenced in this State by statutes providing for garnishment, attachment, receivers, and, in cases like the one at bar, by the provisions, somewhat crude and imperfect, of the act under which Mrs. McFarland’s petition was filed. Among other things it is provided in section 2 of the act (§ 11480) —

“That if upon the filing of such petition it shall be made to appear to the circuit judge that the husband has property, real or personal, credits, stocks or securities, which there is good reason to believe he will dispose of to avoid the decree of the court, the court may grant an injunction restraining the sale and incumbrance of such property, stocks and securities and the collection of such credits, and notice of such injunction served upon any person who is the agent of the husband or his debtor or the secretary of any corporation in which he holds stock, or upon the register of deeds, shall enjoin them from taking any part in aiding the transfer or incumbrance of such property and from the payment of such debts, and be notice to any and all persons to whose knowledge it shall be brought, and operate as an attachment on property in the hands of that person.” * * *

But the sequestration, all and generally, or singularly and specifically, of the property of a husband by the use of the injunction, pending the entry of a decree making provision for the wife or dismissing the proceeding, does not determine the rights of those in whose possession such property may be, or the rights, of alleged debtors of the husband, although it has been before now considered by the trial court that it did.

In Ehlers v. Stoeckle, 37 Mich. 261, it was. determined that an order disposing of one’s property rights in a proceeding to which he is not a party, and in which he has had no chance to be heard, unless as a witness, is. void. In that case, in a proceeding at law in the nature of a creditor’s bill, it was sought to reach certain property supposed to belong to the judgment debtor and to have been placed in the hands of others to put it beyond reach of creditors. The persons alleged to be holding the property of the debtor were sworn as witnesses. The court found they were holding the debtor's property, and ordered it turned over to the sheriff to be sold on execution. This court said:

“What is particularly noticeable in this order is, that it undertakes to dispose finally of the rights of Tiederman and George Stoeckle in a proceeding to which they were not parties, and where they had no opportunity to be heard except as witnesses, and in that capacity, of course, only as they were questioned. They have appealed from the order, but it was not necessary, because as to them it was void. Every man is entitled to his day in court before his rights can be finally disposed of, and even the legislature could not deprive him of the right. But in this case the legislature has not attempted it. On the contrary the statute contemplates the appointment of a receiver for such cases, and suits by him directly against the parties supposed to be covering property for the judgment debtor.”

In the case at bar, the court assumed, in the order it made for the payment of money, to dispose finally of the rights of the bank without opportunity for the bank, not a party to the proceeding, to be heard. The legislature itself cannot do this, and in the act in question has not attempted to do such a thing. We are not now called upon to determine to what extent •the statute provision for enforcing any decree the court may make may be aided, or supplemented, by other actions in which the decree is treated as evidence of an unpaid debt of the owner of the property. It is enough to say that the rights of the debtors of the husband against whom a decree has been made, who are not parties defendant upon the record, are not determined by the decree and must be determined before they can be treated as in default.

We are obliged to hold that the order upon the bank for the payment of money was void and, ex nihilo nihil, it follows that the judgment in the contempt proceeding must be set aside. This conclusion makes it unnecessary to consider, critically, the form of the order made in the contempt proceeding, which appears designed to leave intact the fund in the bank, requiring Mr. Wiley to pay a sum equal to it, as damages occasioned by his misconduct. Owing to the nature of the proceeding, costs are not awarded.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit.


text:
    BORCK v. SIMON J. MURPHY CO.
    1. Master and Servant — Workmen’s Compensation Act — Personal Injuries — Course of Employment — Mixed Question.
    The question whether a workman is injured by an accident arising out of and in the course of his employment may he a question of law or one primarily of fact, or a mixed question of law and fact.
    2. Same — Evidence—Finding of Industrial Accident Board— Conclusiveness.
    Where the finding of the industrial accident hoard that at the time plaintiff was injured he was not doing anything in the course of his employment, hut was neglecting his duties as watchman, and therefore is not entitled to compensation under the workmen’s compensation act, is supported hy competent testimony, the decision of the hoard must he affirmed.
    See notes in L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114.
    Certiorari to Industrial Accident Board.
    Submitted January 22, 1919.
    (Docket No. 1.)
    Decided April 3, 1919.
    Otto C. Borck presented his claim for compensation against the Simon J. Murphy Company for accidental injuries in defendant’s employ. From an order denying compensation, plaintiff brings certiorari.
    Affirmed.

      Carl B. Grown, for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   Ostrander, J.

The respondent owns several buildings in Detroit, among them the Telegraph building, on the southeast corner of the intersection of Congress and Shelby streets, and the-Marquette building on the southeast corner of Congress and Wayne streets — one block east of the Telegraph building. Claimant was employed by the respondent, during the week as janitor of the Telegraph building, and on one Sunday in each month as watchman of the same building. He seems to have acted, too, during the week, more or less, as an utility man, doing errands, etc., when directed to do so. On these Sundays when he was watchman he swept the hall of the building, a performance which occupied very little time. He was paid by the month. .He was,on duty as watchman on Sunday, July 29, 1917. Some time in the morning he left the Telegraph building and went to the Marquette building and into it, and was injured by falling into an elevator shaft. An arbitration committee found that hie accident did not arise out of or in the course of the employment. The board, in its opinion, said:

“Without discussing the testimony which is very long, the board finds:
“(a) That the applicant, at the time he fell down the elevator shaft in the Marquette building, was not at said building on any business of his employer, but that he was there entirely upon his own initiative, and evidently because he had no special work to do, or thought he had no special work to do, in the Telegraph building where he was working, and idly went over to the Marquette building through some idea of his own.
“(b) That at the time he suffered the accidental, personal injury which he did suffer, he was not in the course of his employment and that the accident did not arise out of or in the course of the employment of the applicant.”

The claimant, plaintiff in certiorari, says:

“The only question at issue is as to whether or not the applicant received a personal injury ‘arising out of and in the course of his employment,’ under part 2, section 1 of the act. This is, of course, a question of law and cannot be foreclosed by the industrial accident board’s ruling, which was adverse to applicant.
“The industrial accident board came to its conclusion, naturally, by a review of the testimony, and it is clearly within the province of this court to review the testimony in this cause to ascertain:
“(1) Whether or not the evidence supports the legal conclusions of the board, drawn therefrom, and
“(2) Whether or not there is any evidence in the case to support the legal conclusion of the board.
“In this particular case, to justify a reversal, we do not deem it necessary for the court to find that there is no evidence supporting the conclusion of the board, although we believe such to be the situation, as will be hereinafter pointed out.”

The question whether a workman is injured by an accident arising out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact. In this case, if the finding (a) of the board, which fairly negatives the idea that claimant was doing anything in the course of his employment or anything in the interest of his employer’s business or affairs when he was injured, and which fairly affirms the idea that he was neglecting his duties as watchman in being away from the Telegraph building, is supported by competent testimony, it is decisive of the question and the conclusion (b) would follow as matter of course.

It is evident that neither the committee nor the board believed the story told by claimant to the effect that a messenger from the Marquette building summoned him to go to that building upon the occasion in question. All the testimony introduced by claimant to establish the fact that while acting as janitor he was, upon various occasions, sent upon errands by his superior to different buildings belonging to respondent, goes for nothing if it is believed that no one summoned or directed him upon this occasion but that he went to the Marquette building upon his own initiative to visit with the watchman in the Marquette building. There is abundant testimony supporting the conclusion of the committee and of the board, including testimony of the admissions of claimant contradictory of the testimony he gave in this investigation, and which negatives the idea that he was doing anything but going to the Marquette building to call upon or visit with William Cargill, the watchman at the Marquette building, who, it is alleged, had sent for •him and who denies that he sent for him. ' The testimony is positive and circumstantial, too, to the effect that claimant’s duty while acting as watchman of the Telegraph building required him to stay in the building, not to leave it. There is no testimony which fairly tends to support the conclusion that the several buildings owned by respondent constituted one plant and that the duties of claimant required or permitted him to go from one to the other except upon the direction of a superior.

The board having found controlling facts, and the finding being supported by competent testimony, the award must be affirmed, with costs to defendant in certiorari.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    LYONS v. COTHARIN.
    1. Wills — Construction—Contingent Interest — Intent.
    Where a devise to two sons, subject to a life estate in their mother, provided that, in case of the death of either without issue, then the estate devised should go to and be the estate and property of the survivor, held, to be the intent of the testator that the contingency of issue or no issue was to apply during the life of the devisees; the words and context not importing an indefinite failure of issue.
    2. Deeds^Contingent Interest — Interest Convexed.
    A deed from one brother to the other of an undivided one-half in lands devised to them with the provision that, in case of the death of either without issue, then the estate devised should go to and be the estate and property of the survivor, did not. convey to the grantee the interest of the grantor in the half devised to the grantee contingent upon the grantee’s dying without issue during the lifetime of the grantor.
    3. Reformation of Instruments — Deeds — Mutual Mistake — Evidence.
    To warrant the reformation of a deed because of a mutual mistake, the testimony that a mistake was made must be convincing.
    Appeal from Genesee; Collingwood, J., presiding.
    Submitted January 7, 1919.
    (Docket No. 7.)
    Decided April 3, 1919.
    Bill by Johannah Lyons and others against Arthur Cotharin, administrator of the estate of Dennis Lyons, deceased, and others for the construction of a will and deed. From a decree dismissing the bill, plaintiffs. appeal.
    Affirmed.

      George W. Cook, for plaintiffs.

      Carton, Roberts & Stewart, for defendants.
   Ostrander, J.

Cornelius Lyons, a resident of Gene-see county, Michigan, died, testate, in March, 1872. May 6, 1872, his will was admitted to probate. He gave to his wife, in lieu of dower and other rights, for her life, the use of a third of all his real and personal estate, the clause of the will in which this provision is made concluding with the words,—

“and at her death, the same shall go to and belong to my sons, Dennis Lyons and Daniel Lyons.”

The second and third clauses of his will read as follows:

“2nd. I give, devise and bequeath to my said sons, Dennis Lyons and Daniel Lyons all of my real and personal estate in fee simple, subject to the above devise in favor of my wife, and subject to the condition that my other children, Mary, Margaret, Johanna and Julia, Patrick and John Lyons, shall, until they arrive, respectively, at the age of twenty-one years shall be supported and taken care of by my said sons, Dennis and Daniel Lyons; they keeping said family together, and said younger children rendering such assistance about the premises and to the said Dennis and Daniel as may be in their power until they respectively attain the age of twenty-one years, said real and personal estate to be held by said Dennis and Daniel Lyons forever, subject to the conditions above mentioned, and subject to the further condition that said younger children shall be properly cared for and educated.
“3rd. In case of the death of either of my said sons, Dennis or Daniel, without issue, then the estate hereby bequeathed and devised shall go to and be the estate and property of the survivor of them, subject to the conditions aforesaid.”

. The real estate devised was a farm-of 80 acres described as the southwest quarter of the southeast quarter of section 33, town 8 north, range 7 east, and the northwest quarter of the northeast fractional quarter of section 4, town 7 north, of range 7 east. It is to be inferred, perhaps it ought to be conclusively found upon the whole record, that the widow, with more or less help from the children, and especially with the help of Daniel, operated the farm, maintained a home there, and that the conditions found in the second clause of the will were performed. There is no question here of any failure to perform them. In 1895, Bridget died. Meantime, two other parcels of land had been purchased and title taken in the name of Dennis and Daniel. Dennis, thé eldest child, appears to have had little, if anything, to do with the care and management of the property. In February, 1911, Dennis filed his bill in the circuit court for the county of Genesee, in chancery, against Daniel, in which he charges, among other things, that after the death of his mother in 1895 Daniel took full charge and control of the home farm and the 40 acres purchased in the name of Dennis and Daniel and received the income and that at the time of filing the bill he had refused to make any account of the income to Dennis, or to divide the proceeds except by furnishing a small annual contribution of potatoes and flour. He prays for an accounting. Daniel answered the bill. While this suit was pending, the brothers reached an agreement. It is established that in May, 1911, Dennis delivered to Daniel a deed. Daniel borrowed from defendant Bartlett $3,000, executing his note and a mortgage upon the premises as security for the payment of it, Bartlett’s check for $3,000, payable to the order of Daniel, was delivered to Daniel, he indorsed it to Dennis, and the check was paid to Dennis. The delivery of the deed, the execution and delivery of the mortgage, and the payment of the money amounted to a single transaction. At that time Dennis was married and had children. The deed describes the land devised by the will and also the land purchased and held by the brothers as tenants in common. It contains the covenant of seizin, covenant against incumbrances, a covenant of warranty, and, after the description of the land, the following:

“This conveyance being intended to convey the undivided one-half (%) of the above described lands owned by the first parties hereto.”

Daniel Lyons, not having disposed of any of his interest in the lands, died, intestate, without issue, and without having had issue, on the 4th of May, 1916, leaving a widow, three brothers, two sisters, and two children of a deceased brother. The bill in this cause was filed by the widow of Daniel, one brother and his wife, asking for the construction of the will of Cornelius Lyons and of the deed from Dennis to Daniel hereinbefore mentioned, and praying that if the deed conveyed a lesser interest than the whole of Dennis’ interest in the land it be reformed because of an alleged mutual mistake of the parties. The cause being at issue, on April 13, 1918, Dennis Lyons died and the administrator of his estate was brought upon the record.

It is agreed that as to the lands other than those coming from Cornelius Lyons the deed from Dennis to Daniel conveyed all of Dennis’ interest. But it was the contention of Dennis, and is the contention of his representative, that as to the interest in the lands of their common ancestor which Daniel took by his will it became by the operation of the third clause of the will the property of Dennis because Daniel died without issue and Dennis survived him. .

The validity of the third clause of the will is not disputed — is admitted. Assuming its validity and consulting all of its provisions, it is clear that the intent of the testator was that the contingency of issue or no issue was to apply during the life of the devisees. The .words and context do not import an indefinite failure of issue. Strain v. Sweeny, 163 Ill. 603 (45 N. E. 201); Hall v. Chaffee, 14 N. H. 215; Stone v. Bradlee, 183 Mass. 165 (66 N. E. 708); Tinsley v. Jones, 13 Grat. (Va.) 289. All the estate that the testator could convey, subject to the life estate, was devised to the sons, equally, but the estate of either devisee was defeasible upon his death, without issue, during the life of the other. If either died without issue, the survivor took it all, whether he, the survivor, had issue or not. If both had issue, they continued tenants in common of the land. If one had issue, -his right to at least an undivided half interest was determined. When Dennis' made his conveyance, issue having been born to him, his interest in an undivided one-half of the land was no longer defeasible. He might acquire, by the death of Daniel, the remainder of the land. Whether his interest in one-half of the land was or was not determined upon the birth of issue, the question remains the same. He survived his brother, and his brother died without issue.

Plaintiffs, who are heirs of Daniel, state and argue two principal propositions. They say, first, that Dennis having an indefeasible title to an undivided half of the land, if he had conveyed it to a third person,—

“the title to his said interest in that land, upon the death of Daniel Lyons without issue would have vested absolutely in the grantee. But the conveyance was to Daniel Lyons, the one person having any interest in the property outside of the grantor, and we think when this conveyance was made the fee and the contingent interest were merged in one person and the title bcame absolute in him.”

They say, second, that, if the deed of Dennis conveyed any less that his entire interest in the estate, it should be reformed to include his entire interest, because it was the intention of both Daniel and Dennis that Dennis should convey his entire interest.

They contend, and we agree with them, that an estate defeasibly vested—

“has all the qualities of * * * an absolute estate until the divesting contingency happens.”

The deed of Dennis to Daniel describes what is conveyed as an undivided one-half interest in the land, in fee. We may admit, for the purposes of this case, that, if both had joined in a warranty deed to a third person, they could have conveyed an absolute, indefeasible title in fee simple. It does not follow that, if one conveyed “an undivided one-half interest” in the land, his grantee, the other brother, dying without issue, the grantor surviving, would have succeeded, by force of his deed, to the title and interest of the deceased brother. The point, it seems to us, does not require argument to sustain it. The deed in question here carefully limits what is conveyed and the covenants of the deed apply to the interest as limited. It secured to Daniel absolute control of the property and all of the income therefrom so long as Daniel lived. But the contingency that he might die without issue, his brother Dennis surviving him, remained, affecting the interest which Daniel acquired from his father, the testator. This contingent interest did not expressly, or by legal implication, pass by the deed.

Testimony warranting the reformation of a deed because of a mutual mistake must be convincing that a mistake was made. The testimony in this case falls far short of this. There is no evidence of any mistake of fact, nor of fraud or concealment. Both sons knew the state of the title. In determining whether an instrument ought to be reformed because not expressing the will or bargain of the parties thereto, the language of the instrument is always important. It is especially important here since it appears that with mutual knowledge of the peculiar condition of the title the grantor executed and the grantee accepted a conveyance containing the clause above set out.

If it is regarded as of importance, appellants may take a decree here which, instead of dismissing the bill, adjudges that, under the will and the deed, the interest of the heirs óf Daniel in the land is limited to an undivided one-half thereof, the other undivided half going to the heirs of Dennis; otherwise, the decree dismissing the bill will be affirmed. Appellees will recover costs of this appeal.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Bird, C. J. Ostrander, J.

text:
    PEOPLE v. KELLOGG.
    1. Husband and Wife — Neglect to Support — Criminal, Law— Test as to Guilt — Necessaries Furnished Wife.
    In a prosecution on a charge of being a disorderly person under 2 Comp. Laws 1915, § 7774 et seq., in that defendant neglected and refused to support his wife and baby, where the evidence shows that defendant and his wife were living apart, the test in such cases appears to be whether such a case is established as would entitle a third person to recover against the husband for necessaries furnished the wife.

    2. Same — Living Apart — Burden of Proof.
    During cohabitation the assent of the husband is assumed, but if they are living apart, the burden is upon the person furnishing the necessaries to show that the circumstances are such as to render the husband liable.
    3. Same — Evidence—Directed Verdict.
    Evidence that defendant furnished a home for his wife with his parents, but because it -was sometimes unpleasant for her, although no serious quarrels arose, she left and went back to her parents’ home, held,, to require a directed verdict for defendant.
    Ostrander, J., dissenting.

      Error to Lapeer; Williams, J.
    Submitted January 16, 1919.
    (Docket No. 110.)
    Decided April 3, 1919.
    Charles B. Kellogg was convicted under section 7774 et seq., 2 Comp. Laws 1915, of nonsupport of his wife and child.
    Reversed, and defendant discharged.

      B. F. Reed, for appellant.

      Herbert W. Smith, Prosecuting Attorney, for the people.

      See notes in 65 L. R. A. 529; 47 L. R. A. (N. S.) 279.

   Bird, C. J.

Defendant was convicted in the Lapeer circuit court on the charge of being a disorderly person, under section 7774 et seq., 2 Comp. Laws 1915, in that he neglected and refused to support his wife and baby. By way of defense in the trial court it was; insisted in his behalf that under the conceded facts: he was not guilty. A verdict was requested in his: behalf but was refused. The trial court was of the; opinion that a question of fact was involved, and taking this view of the matter he submitted it to the jury. Defendant makes the same contention in this court.

The parents of the complaining witness and defendant are farmers and lived nearly opposite of each other. The young people were married in December, 1917. In pursuance of a previous understanding they went to reside with defendant’s parents. After a period of six months the wife returned to her father’s home. After being away six months she returned to her husband’s home and remained three and a half months, when she again left and went to reside with her parents. The trial court left it to the jury to say whether she was justified in leaving.

1. The test in such cases appears to be whether such a case is established as would entitle a third person to recover against the husband for necessaries furnished the wife. People v. Pettit, 74 N. Y. 320. During cohabitation the assent of the husband is presumed, but if they are living apart the burden is upon the person furnishing the necessaries to show that the circumstances are such as to render the husband liable. Id. 325; Blowers v. Sturtevant, 4 Denio (N. Y.), 46. Measured by this test we think counsel’s point is well taken that a case was not made for the jury. It was stated by defendant, and concurred in by the wife, that defendant had theretofore offered to support her and her child if she would return to his home. The wife makes no complaint that she was cruelly treated by either her husband or his parents. The wife’s complaint, in substance, is that it was disagreeable to remain in the home with the old people, the reasons given for this are a series of disagreeable remarks and little criticisms on the part of defendant’s mother and father, which were never serious enough to provoke a quarrel. The home was a large and commodious one and defendant was an only child, who was assisting his father in the operation of the farm. No complaint is made against the defendant except that on several occasions when these annoyances were called to his attention by his wife he approved of them. It could hardly be claimed that a showing no more serious than this would entitle one, who had furnished the wife necessaries while living separate from her husband, to have the question submitted to a jury to determine whether she was justified in leaving. In the case of People v. Pettit, heretofore referred to, the facts differed from the present ones in no material respect. In holding that no case was made for the jury, it was said in part that:

“I assume what’ is fairly inferable from her evidence that the residence in the same house with the parents was unpleasant, and we may assume further that they and the husband were in fault. But this does not establish that the husband refused or neglected to maintain his wife. The statute is not a substitute for an action of divorce, it was not designed to settle marital controversies, nor to furnish relief for violation of marital obligations, except in the single particular of requiring a support or maintenance. The statute is summary and highly penal and must be strictly construed. The defendant is charged with neglecting to support his wife. Does he neglect when he offers to support her, and no question is made of the good faith of the offer? As well might it be said that he neglected to support his wife if she had returned with him, because her surroundings were disagreeable. A husband cannot be made a vagrant and a disorderly person, and held amenable to this statute by not complying with any condition in respect to support which the wife may see fit to impose, nor is it proper to refer the reasonableness of the condition to the decision of a jury. She exacted in this instance a separate house. Why might she not a particular kind of a house in a particular neighborhood, or impose other conditions? The husband has a right to select his own residence and the support which this statute was intended to secure is, the necessaries of life, or such as the parties have been accustomed to, and the husband is able to provide.”

The facts in the present case are so like those in the case cited that we think the same conclusion should be reached. It therefore follows that the motion for a directed verdict should have been granted.

The judgment of conviction must be set aside and the defendant discharged.

Moore, Steere, Brooke,' Fellows, Stone, and Kuhn, JJ., concurred with Bird, C. J.

Ostrander, J.

Respondent is convicted of failure to support his child, and the evidence shows him to be guilty. For this reason the conviction ought to be affirmed. In any event the respondent ought not to be discharged.