author: Long, J.

text:
    MORGAN v. KINGMAN.
    Creditor’s Bill — Interest Under Will — Settlement of Estate —Decree.
    Where, upon a bill filed to subject the interest of a judgment debtor as legatee under the will of his father, it appears that the legatee is largely indebted to said estate, and that the estate is probably insolvent, the bill should nevertheless be retained until final settlement of the estate, to the end that, if it shall appear on such settlement that there is anything due the legatee, the creditor may be in position to move for the proper decree.
    Appeal from Calhoun; Smith, J.
    Submitted January 30, 1900.
    Decided March 6, 1900.
    Bill by Benjamin F. Morgan against Howard R.-King-man, Steven S. Hulbert, Brainard T. Skinner, and Mitchell N. Packard, trustees of the estate of Richmond Kingman, deceased, and Howard R. Kingman, individually, to subject the interest of defendant Kingman, as legatee under the will of said deceased, to the payment of a judgment in favor of complainant. ' From a decree dismissing the bill, complainant appeals.
    Reversed.

      Hoivard B. Cavanagh, for complainant.

      Hulbert & Mechem, for defendants Hulbert and Skinner.
   Long, J.

Complainant is a judgment creditor of defendant Howard R. Kingman. The judgment was rendered in justice’s court, and execution was there issued, and returned unsatisfied. Transcript of that judgment was filed in the circuit court, and execution thereon issued, and that execution returned unsatisfied October 18, 1897. The amount of the judgment at the time of filing this bill was $192.54 and $3.95 costs. The four defendants, Howard R. Kingman, Steven S. Hulbert, Brainard T. Skinner, and Mitchell N. Packard, are the trustees of the estate of one Richmond Kingman, de- ' ceased, the father of Howard R. Kingman, under the terms of the will. It is claimed by the bill that defendant Howard R. Kingman has rights and interests in the estate of his father amounting to $1,000 and upwards, and it is asked that the trustees pay into court at such times as the same would otherwise be due and payable to said defendant Howard R. Kingman under the terms of said will, if that sum shall be found due him, sufficient to-satisfy the amount decreed to be due on said judgment, together with interest and costs; that for the purpose of the satisfaction of the amount so decreed to be due on said judgment, together with interest and costs, the interest of said Howard. R. Kingman in and to his said father’s estate under the terms of said will be sequestered and taken; and that the said trustees be decreed to pay to the complainant, from moneys and property otherwise due and payable to defendant Howard R. Kingman, a sum sufficient to pay said judgment and costs. The will of Richmond King-man provides an annuity to Howard R. Kingman of $1,666.66, payable yearly; and also said Howard R. Kingman is made a residuary legatee thereunder. Upon the filing of the bill, an injunction was issued restraining

the trustees from paying any money to Howard R. King-man until the further order of the court.

The defendants Brainard T. Skinner, Steven S. Hulbert, and Howard R. Kingman, as trustees, appeared, and demanded a copy of the bill. Howard R. Kingman did not appear personally, but as trustee. Answer was filed by Hulbert and Skinner as trustees, alleging :

“That heretofore, and on the 10th day of September, 1895, an order was made in and by the probate court directing the executors of said will to pay to Caroline B. Kingman, widow of said Richmond Kingman, the sum of $100 per month as an allowance for her support and maintenance pending the settlement of said estate, and until the further order of said court.
“That the hearing of claims against said estate is still open and pending, and that it is impossible at this time to ascertain the extent of the valid claims against said estate.
‘ ‘ That the said Richmond Kingman, in his lifetime, was an officer and director and large shareholder in the stock of the Duplex Printing-Press Company, .a corporation engaged in the manufacture and sale of printing presses at Battle Creek, Michigan; that the said corporation was and is heavily involved and had large obligations, and that the said Kingman, with others interested in said company, had from time to time indorsed and become liable on the notes and obligations of said company to a large amount; that at the death of said Kingman he was so liable on account of notes and obligations of said company then outstanding, which had been indorsed or guaranteed by him in different ways, in an amount in excess of $200,-000; that it was and is understood and agreed between holders of said obligations and the representatives of said estate that the same should not be presented for allowance in the six months allowed in the first instance for presenting claims against said estate, but that the hearing of claims should not be closed until some future time; that it was and is intended in all reasonable ways and manners to aid and assist said corporation in the conduct of its business, to the end that it may work out and pay said obligations, or so much thereof as possible; that it was and is in good faith considered inexpedient and likely to be completely disastrous to force a settlement and liquidation by said corporation, and that the result thereof would be a sacrifice of the assets of said corporation, the ruin of its business, and the complete sweeping away of the assets of said estate; that the said executors are authorized to join in the renewal of the obligations of said corporation on which said Richmond Kingman, in his lifetime, was liable, and charge the assets of said estate therewith; that these trustees are authorized to pay such indebtedness without the allowance thereof in the probate court; and that allowance of such claims in probate court is not necessary, but a matter of precaution merely to these trustees in their final accounting.
“That, in addition to such liability of said estate on account of such Duplex Printing-Press Company indebtedness, the said Richmond Kingman was, at the time of his death, indebted in the sum of'$68,000 and upwards to the City Bank of Battle Creek; that said bank has not filed any claim therefor in the probate court, but claims and has a direct lien and charge therefor on certain assets of said estate, to wit, the capital stock of said bank belonging to said Richmond Kingman in his lifetime, and is applying on said indebtedness all dividends and earnings of said stock; and that said estate is still indebted to said bank, on account of such indebtedness, in the sum of $50,-000 and upwards; that the indebtedness to said bank arose by reason of said Richmond Kingman, in his lifetime, having indorsed and become liable on notes and obligations of said Howard R. Kingman and others; that, at the death of testator, said Howard R. Kingman’s indebtedness on which said testator was liable amounted to $29,916; that, since the death of testator, said bank has rightfully, and with the consent of the representatives of said estate, appropriated, of income and assets which would otherwise have accrued to said estate, the sum of $6,313 and upwards, and applied the same on said Howard R. Kingman’s indebtedness; that, to the extent of the payment of such indebtedness of said Howard R. Kingman out of the assets of said estate, the said representatives thereof have a lien on and offset against the legacy of said Howard R. Kingman; that, to the extent that said estate is now liable on account of the indorsement and liability of said Richmond Kingman in his lifetime to pay said indebtedness of said Howard R. Kingman, the representatives of said estate have now, and will have, an offset against any liability to said Howard R. Kingman, either on account of the legacy of said annuity, or on account of his right to a distributive share in said-estate; that said Howard R. Kingman has not repaid to said estate the amount so paid to said bank on account of his indebtedness, or any part thereof, and has not paid to said bank, or to said estate, the balance of said indebtedness, or any part thereof, and that these defendants have not, nor have any or all of the representatives of said estate, any collateral or security therefor other than the right to offset the same as aforesaid.
‘ ‘ That the income and profits of said estate have been insufficient to meet the necessary costs and charges of administration and of maintaining the estate, and pay the allowance to the widow aforesaid; that nothing has been paid at any time to the legatees named in said will, to wit, said Howard R. Kingman and others, out of said estate, for or on account of such legacies; that there are no funds or assets in the hands or under the control or possession of the representatives of said estate with or out of which any sum can be paid to said Howard R. King-man on account of such legacy; that these defendants are not, nor are any of the trustees and representatives of said estate, indebted to or liable to the payment of any sum whatever to the said Howard R. Kingman; that said Howard R. Kingman has no claim or demand against these defendants as such executors or trustees, or otherwise; that said estate is not in a situation to be closed, and distribution made thereof, and that there is no prospect of its being in such situation in the near future; that it cannot be known at this time what amount, share, or portion of said estate, if any, will ever be available for the payment of the legacies and devises in said will mentioned; and that there is no liability, duty, or obligation now existing resting upon these defendants, or upon any or all of these representatives of said estate and trustees under said will, to pay now or at any future time any money to said Howard R. Kingman, or to turn over, convey, or distribute to him now or at any future time any of the property or assets of said estate.
“That these defendants and the representatives of said estate have not accounted from time to time in the probate court aforesaid, for the reason that all the matters- and things herein set forth have been fully known to and understood by the parties interested therein, to wit, the legatees and devisees under said will and the creditors of said estate; and that these defendants are now, and at all times have been, ready to render a complete and particular account of the administration of said estate. These defendants submit that the proper place for an accounting in the said administration is in the probate court, and that said Howard E. Kingman can make no claim or demand against these defendants until their liability has been fixed and determined in said probate court.
“These defendants submit that said complainant has not, in his bill of complaint, shown any such facts and circumstances as warrant the relief prayed for therein, for the following reasons: (a) That it does not appear by the said bill of complaint that these defendants, or any or all of the representatives of said estate and trustees mentioned, have in their hands interests, incomes, or profits of said estate applicable to the payment of legacies; (■&) that it does not appear by said bill that the hearing of claims against said estate is closed, or that the just debts of said testator have been paid; (c) that it does not appear that there is any liability fixed or determined on the part of said representatives of such estate and trustees to pay any money, or deliver, turn over, or convey any property, to said Howard R. Kingman.”

Proofs were taken in open court, and the court below dismissed the bill. Complainant appeals.

The proofs show that Howard R. Kingman was indebted to the estate of his father in the sum of about $45,-000, and that the father’s estate is largely indebted. It is now within a few weeks of the time when the father’s estate is to be closed up, and the proofs show that it is apparently insolvent. We think, however, that complainant’s bill should not have been dismissed. The decree must be reversed, and a decree entered here restraining further proceedings until after the settlement of the estate of Richmond Kingman, deceased; and if, on the settlement of said estate, it shall appear that there is anything due from it to Howard R. Kingman, complainant may then move for final decree in the premises, or defendants may move for dismissal of the bill; costs to abide the event of the proceedings.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    PATRICK v. BATTEN.
    1. Arbitration and Award — Articles of Submission — Construction — Ex Parte Affidavits.
    An agreement for arbitration between a landlord and tenant was made to cover all questions in dispute, without specifying any particular matter, but provided that the lease then existing should be canceled, and that the premises and all crops growing thereon should be surrendered. The arbitrators awarded the lessor possession, but provided that he should pay the lessee damages for the surrender of his lease before the expiration of the term, and for improvements made by him. Held, that the lessor was not entitled to have the award set aside, on the ground that the arbitrators had exceeded their powers, upon a showing by ex parte affidavits that the question of damages arising from the surrender of the lease was not included in the agreement.
    3. Same — Validity of Award — Time of Filing.
    Failure of arbitrators to file an award within the time fixed by the articles of submission is not ground for vacating it, in the absence of any provision in the articles that the award should be void if not made within the time appointed.
    Error to Wayne; Lillibridge, J.
    Submitted January 31, 1900.
    Decided March 6, 1900.
    Proceedings by Alexander L. Patrick against William Batten to set aside an award of arbitrators. Prom a judgment setting aside the award, Batten brings error.
    Reversed.
    William Batten was a tenant of Alexander L. Patrick. Disputes arose between them, which were submitted to arbitration, under the following agreement:
    “Whereas, differences do now and have for a long time existed between Alexander L. Patrick and William Batten, both of the county of Wayne, State of Michigan, in relation to diverse subjects of controversy and dispute: Now, therefore, the undersigned, Alexander L. Patrick and William Batten, aforesaid, do hereby mutually covenant and agree to and with each other to submit all and all manner of action, cause and causes of action, suits and controversies, and claims of every name and nature, existing or held by and between the said parties, to three arbitrators, who shall be residents of the said county of Wayne, to be chosen as follows: One arbitrator to be chosen by each or said parties, and a third arbitrator to be chosen by the two arbitrators so selected as arbitrators, who, or any two of whom, shall arbitrate, award, order, judge, and determine of and concerning the same; and we do mutually covenant and agree to and with each other that the said award to be made by the arbitrators, or any two of them, shall in all things by us, and each of us, be well and faithfully kept and observed. It is further mutually agreed that a certain lease executed by and between the said parties, of the farms now occupied by the said William Batten, be canceled and surrendered up, and that said Batten shall surrender said premises to said Patrick, and all crops growing thereon, at such time as said arbitrators shall determine: Provided, however, that the said award be made, in writing under the hands of the said arbitrators, or any two of them, ready to be delivered to the said parties in difference on the 30th day of July, 1898.
    “And it is hereby further agreed that the submission and award as hereinbefore provided shall be governed and be subject to the provisions of chapter 292 of Howell’s Annotated Statutes of the State of Michigan. And it is hereby further mutually agreed by and between the said parties that judgment in the circuit court for said county of Wayne may be rendered upon the award to be made pursuant to this submission, to the end that all matters in controversy between them specified in the submission shall be finally concluded.”
    By stipulation, time to file the award was extended to August' 30th. The arbitrators were chosen under this agreement, and each presented his claim before the arbitrators. Testimony was taken, and the material parts of the award are as follows:
    “The said William Batten shall surrender up and vacate the premises he now occupies, belonging to the said Alexander L. Patrick, and surrender the lease he holds of the same, together with all growing crops now on said premises, and shall deliver to said Patrick 200 bushels of oats, to be taken from the share of said Batten, raised on the said premises the present year; that being the amount received by said Batten from said Patrick January 1, 1897. We further award said Batten one-half the increase of the cattle and hogs for the years 1897 and 1898, — -the same divided by us. We further award and determine that said Alexander L. Patrick shall pay the said William Batten the sum of six hundred fourteen and 43-100 ($614.43) dollars, to be paid within 30 days from the date hereof, as damages for the surrendering and vacating the premises now occupied by him before the time fixed by the terms of the lease therefor, and for improvements made by said Batten on said premises. We do further award and determine that said Batten shall vacate and surrender up possession of said premises within ten days from the date hereof. And we do further award, adjudge, and determine that there shall be paid to us the sum of forty ($40) dollars each as our fees as arbitrators, for eight days’ time devoted by us to hearing the same, and a personal examination of the premises of said Patrick, now occupied by said Batten, and making a division of the increase of the stock and grain between them; said fees to be paid out of the award of' six hundred and fourteen and 43-100 dollars made to said Batten; all other expenses and costs to be paid by the party incurring the same.”
    The award was filed October 11, 1898. Thereupon, and on the same day, the court entered judgment on the award, and ordered a copy thereof to be served on Mr. Patrick,' with notice that, if he desired to complain of said award, he must move within 20 days to vacate the same. He appeared and made the following objections:
    1. There was partiality shown by one of the arbitrators.
    2. The arbitrators exceeded their powers, and awarded on matters not submitted to them.
    3. The award is indefinite.
    4. One of the arbitrators was not permitted to act in the completion of the award.
    5. The award was neither made nor filed within the time fixed by the submission:

      The. court set the award aside upon the ground that the arbitrators exceeded their authority in awarding damages or compensation to Batten for the surrender of the lease.

      George W. Ooomer, for appellant.

      James Swan (S. S. Babcock, of counsel), for appellee.
   Grant, J.

(after stating the facts). We think the court erred in setting aside the award. Patrick made affidavit that, at the time of signing said agreement for arbitration, he expressly stated, and it was agreed between him and Mr. Batten, that no question should arise concerning any damages relative to the surrender of the lease, and that no question of damages arising to either party from the surrender of said lease was submitted by said articles of arbitration. This is denied by Mr. Batten. Upon this and upon other points both the parties, their attorneys, and all the arbitrators have made affidavits, and on all material points they are in direct conflict. The agreement for arbitration did not specify any particular question of dispute, but covered all questions of dispute between them. The provision in the agreement that the lease should be canceled, and that the premises and all the crops growing thereon should be surrendered, does not prevent Batten from claiming and recovering for improvements made by him, or for damages for surrendering the lease. The agreement is unambiguous, and contemplated a general settlement of all matters in dispute between them. These arbitration tribunals are favored by the courts; they are chosen-by the voluntary act of the parties; and he who seeks to annul an award must show, by clear and convincing proof, his right to have the same vacated for one of the four reasons fixed by the statute (3 Comp. Laws 1897, § 10932). If a party desires to have a finding upon each item of account or dispute, he must so provide in the articles of arbitration. Speaking of these tribunals, this court, through Chief Justice Campbell, said:

“But it is evident that there are great objections to any general interference by courts with awards. They are made by a tribunal of the parties’ own selection, who are usually, at least, expected to act on their own view of law and testimony, more freely and less technically than courts and regular juries. They are also generally expected to frame their decisions on broad views of justice, which may sometimes deviate from the strict rules of law. It is not expected that, after resorting to such private tribunals, either party may repudiate their action and fall back on the courts.” Port Huron, etc., R. Co. v. Callanan, 61 Mich. 26 (34 N. W. 678).

Having agreed to submit to this tribunal all matters in ■ controversy, neither party can now come into court and by ex parte affidavits establish what it was agreed should or should not be submitted.

Counsel contend that the award is void because not filed within the time specified in the arbitration agreement. In support of this they cite Brown v. Copp, 5 N. H. 223; Elliot v. Hanson, 39 Mich. 157; Marshall v. Powell, 9 Q. B. 779. In Brown v. Copp the action was debt upon an arbitration bond conditioned upon the performance of an award, “ so as the said award be made in writing and ready on or before the first day of December, 1828, then the bond to be void; else to remain in full force.” It does not appear that that was an arbitration under any statute. The bond expressly provided that it should be void if the award was not rendered on or before a certain time. In Elliot v. Hanson the suit was on an arbitration bond conditioned for the performance of an award “ to be made on or before the third day of August, 1872, at ten o’clock in the forenoon.” The award was not made within that time. The court said, “No question arises upon its legality between the parties, but only as to whether the bond covers it.” I find nothing in Marshall v. Poivell which is in point. The parties in this case did not provide that the award should be void if it was not made at the time appointed. The failure to file the award within the time fixed is not one of the reasons provided for by the statute for vacating it.

We have examined the other points raised against the award, and do not find them valid.

Judgment reversed, and entered in this court for the amount of the award, with the costs of both courts.

The other Justices concurred.


text:
    BROWN v. RIGGS.
    Malicious Prosecution — Malice—Evidence.
    Plaintiff in an action for malicious prosecution may show, as bearing on the question of malice, that defendant, after causing plaintiff’s arrest, induced the latter’s father to go for financial assistance in the defense to one H., to whom defendant, immediately after making complaint, had, unknown to the father, sold for §70 a note for §115 against the latter, and that H., after taking security for §200 to be advanced, presented the note instead of the promised money; it being a question for the jury whether the complaint was made in good faith or merely for the purpose of collecting the note.
    Error to Wayne; Lillibridge, J.
    Submitted January 31, 1900.
    Decided March 6, 1900.
    Case by Lee Brown, an infant, by his next friend, John Brown, against Gilbert Riggs, for malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George X. M. Collier, for appellant.

      8. W. Burroughs and Moore & Moore, for appellee.
   Long, J.

This action was brought against the defendant, for malicious prosecution in causing the arrest of Lee Brown. It appears that the parties were neighbors, living in the township of Van Burén, Wayne county; that on November 29, 1896, in the night-time, there was taken ' from defendant’s pasture a 2-year-old heifer. He made search for it on the next day, and, going to Ann Arbor, he found the skin of a heifer at a butcher shop, that corresponded with the one he had lost. He was there informed that the skin had been sold there by one Charles McIntosh and Lee Brown, the plaintiff here. Defendant thereafter made complaint in writing against McIntosh and Brown for larceny of the heifer. This complaint was made on December 2, 1896. The parties were arrested and brought before the justice, and the cause adjourned until December 9th, and a subsequent adjournment was then had until December 14th, on which day the parties were discharged at the request of the prosecuting attorney, and a new warrant issued, upon which the parties were rearrested, and the cause adjourned until the next day, when an examination was had, and the parties were bound over to appear at the Wayne circuit court. The bail was fixed at $500 each. On the first arrest the plaintiff here was committed to the jail of Wayne county for want of bail. On the second arrest he gave bail in the sum of $500, with Bichard Hope as surety. On February 4th following, both defendants in that suit were put on trial before a jury in the Wayne circuit court, and a verdict of not guilty was found by the jury.

On the present trial it appeared from the testimony offered by plaintiff that when he was committed to jail, on December 3d, defendant called on John Brown, plaintiff’s father, and advised him to go to one Bichard Hope and have him aid his son in getting bail, and stated that Hope would furnish all the money necessary to aid his son (the plaintiff here) in making his defense; that he (defendant) did not believe him guilty; that John Brown and his wife went to see Hope the next day, and he went on the bond for the son; that, in order to get Hope to sign the bond, Brown and his wife gave' a deed of their farm, the consideration being expressed therein of $700; that, upon this deed being given, Hope signed the bond, and also promised to give to the parties $200 in money to aid' the son in his trial; that, after the delivery of the deed instead of Hope giving John Brown the $200 in money, as was promised, he presented him with a note of $llb which had been given by Brown to defendant, Riggs. It appeared on the trial that Riggs, after the plaintiff’s arrest, had transferred this note to Hope for $70, and had then sent Brown and his wife to Hope to induce him to go on the bond of their son. In doing this, John Brown and his wife were compelled to take up this note of $115 and secure the payment thereof. The claim of plaintiff on the trial was that the arrest was malicious and without probable cause. Testimony was given by plaintiff’s witnesses that the hide found at Ann Arbor, and sold by McIntosh and plaintiff, came from a heifer belonging to McIntosh. Some considerable evidence was given by plaintiff tending to establish this fact. The defendant claimed that the hide came off his heifer, which he lost as above stated.

The first error claimed is in permitting the deed given to Hope, and the note mentioned as having been purchased by Hope, to be received in evidence. We think the court very properly received the same. The good faith of defendant, Riggs, in making the complaint was involved in the controversy. Quite a singular combination of circumstances was shown. A complaint made by defendant; immediately thereafter the transfer of this $115 note, signed by plaintiff’s father, to Hope for $70; the advice of defendant to John Brown to call on Hope to aid him; and, after the security had been given Hope for $200 to be advanced to aid in the defense of plaintiff, the presentation of this $11,5 note by Hope instead of the money which had been promised. It was a question of fact for the jury to determine whether the complaint was made in good faith, or made for the purpose of the collection of this note. In other words, these circumstances were permitted to be shown by the court below for the purpose of establishing malice, and for no other purpose. The court properly instructed the jury on this question.

It was claimed by the defendant that he went to the prosecuting attorney, and laid all the facts before him, and was advised by him to make the complaint. That question was submitted for the consideration of the jury in a very full and fair charge.

A point is also made that the court permitted the plaintiff to read the testimony of Mrs. Brown taken on the former trial, and that at that time Mrs. Brown was within the jurisdiction of the court. The record does not show that Mrs. Brown was then living, and within the jurisdiction. Neither does it show that any objection was made to the introduction of this testimony.

The verdict was for the plaintiff in the sum of $400. We have examined the record with care, and have con- ' sidered all the points raised by counsel for defendant, and think that no other questions need be discussed. We find no error in the case.

The judgment must be affirmed.

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


text:
    VALLEY CITY MILLING CO. v. PRANGE.
    Contract — Sale—Indefinite Quantity — Failure of Consideration.
    Where one having a contract for graveling and improving a certain street, after examining land from which gravel had been taken, gave his notes for a certain sum in payment for the “privilege of removing, for.graveling such street, 4,500 yards of gravel, moré or less,” the seller refusing to guarantee the quantity or quality, he cannot defeat an action on the notes by showing that the gravel found was not sufficient in quantity nor suitable in quality for all his purposes.
    Case made from Kent; Grove, J.
    Submitted February 1, 1900.’
    Decided March 6, 1900.

      Assumpsit by the Valley City Milling Company against Albert H. Prange upon promissory notes. There was a judgment for plaintiff, and defendant assigns error..
    Affirmed.
    This case was tried before the court without a jury. The suit is based upon two promissory notes for $200 each. With the plea of the general issue, defendant gave notice that he would show that said notes were given by virtue' of a certain contract for the sale of gravel by the plaintiff' to the defendant; that said plaintiff represented to him, through its agent, that there was a large amount of gravel, suitable in quality and sufficient in quantity for the purpose for which it was purchased; and that these representations were false and fraudulent. The court made a. finding of facts and law, and entered judgment for plaintiff. The facts found, so far as they are material to state, are as follows: The contract provided “that, in consideration of the sum of $400.00, the parties of the first part, grant to the party of the second part- the privilege to remove from their farm, adjoining the city on the north, for graveling Plainfield avenue, four thousand five hundred yards of gravel, more or less.” The contract described the land, and excepted a parcel of 100 feet frontage' by 110 feet deep, worked by Woodworth & Fairbanks, and gave defendant the right to obtain gravel from this parcel, provided it was abandoned by Woodworth & Fairbanks for a period of two weeks. It then provided for the giving of the notes, and for the disposal of the refuse and surplus dirt by the defendant. The further findings are as follows:
    ‘ ‘ I further find that, prior to entering into said contract, the defendant, by himself or his agents, examined the ground and premises described in said contract, with reference to the gravel which might be therein, and that, in entering into said contract, the defendant relied upon the examination made by himself or his agents for that purpose ; that the said defendant has been for many years a contractor engaged in the public works in the city of •Grand Rapids, such as the building of sewers, and grading and graveling of the public streets. I further find that the said plaintiff did not, by its manager, William N. Rowe, or otherwise, represent or pretend to the defendant that in the place mentioned in the contract there was an amount of gravel sufficient for the use of defendant for ° the purpose of graveling and improving Plainfield avenue, and that the said Rowe did not represent or pretend to the defendant that, if the defendant would-remove the refuse -and sand from said premises, he would find sufficient gravel of the kind and quality required for the purpose of the improvement of Plainfield avenue, for the making of which improvements said defendant had a contract. I further find that the defendant did not rely upon any representations or statements of the plaintiff as to the amount or kind of gravel there might be upon said lands, in making and executing the contract and notes herein-before described. I further find that the plaintiff did not warrant to the defendant that in the place mentioned in the contract, after removing the refuse and sand from the surface which was left by others after removing gravel therefrom, the defendant would find 4,500 yards of gravel, or any other specific quantity, for the improvement of Plainfield avenue under the contract which defendant had with the city of Grand Rapids therefor. I further find that said plaintiff and its agents did not know how much gravel wa-s on said premises, nor what kinds of gravel could be found thereon, and did not state or represent to the defendant or his agents in any way that there was any particular amount or particular kind of gravel thereon, beyond what appeared on. the surface thereof, or in excavations which had been made thereon prior to the making of said contract; and that the means of obtaining knowledge as to the kinds and quantity of gravel upon said premises prior to and at the time of making said contract was equally at the command of said defendant as of said plaintiff, and that said defendant did, by himself or his agents, make such examination as he desired before entering into said contract and making said notes, and relied upon such examination, and not upon any statements or representations made by plaintiff.”
    The only finding of law was that the plaintiff was entitled to judgment. To this finding defendant proposed amendments, asking the court to find to the contrary all the material facts set forth • in the finding. This was refused. . The defendant alleged exceptions to such refusal, and to the facts as found.

      Birney Hoyt, for appellant.

      Bundy & Travis, for appellee.
   Grant, J.

(after stating the facts). One Reed was the subcontractor under Prange to furnish the gravel. Defendant’s counsel insists that there was no evidence that Reed was Mr. Prange’s agent, or that Mr. Prange, either through himself or his agent, made an examination of the gravel-pit prior to the execution of the contract. Counsel also objects to the finding that Rowe, plaintiff’s agent, did not represent that defendant would find sufficient gravel of the kind and quality required for the purpose of the improvement of Plainfield avenue. We think there was ample testimony upon which to base the finding. There was a clear conflict in the evidence, and a substantial denial by Mr. Rowe of the representations charged to have been made by him. Counsel seeks to bring this case within the doctrine of Gibson v. Pelkie, 3? Mich. 380. To bring the case within the rule there enunciated, it must conclusively appear that there was no subject-matter for the contract. The same principle is found in Gribben v. Atkinson, 64 Mich. 651 (31 N. W. 570), where parties contracted with reference to the mutual belief that there was iron ore in the land. It was found that there was none. These cases, however, do not govern this. Here there was gravel suitable for one of the purposes for which it was intended. Plaintiff refused to sell by the load, for reasons which appeared to be satisfactory to both parties. The defendant had the right to remove the shade trees upon the place, and to dig up the surface, in order to find and remove the gravel. Plaintiff refused to guarantee the quantity or the quality, but offered to sell the defendant the right to remove all the gravel upon the premises, if sufficient could be found for the purpose for which the defendant wanted it. He, through his agents, made an investigation. He was willing to assume the risk, and made the contract with the distinct understanding that the land might not contain gravel of the quantity and quality desired. There was no total failure of the subject-matter, such as constitutes a failure or lack of good consideration.

Judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    SCHOOLCRAFT v. SIMPSON.
    1. Replevin — Demand—Sufficiency.
    The fact that plaintiff in replevin against a sheriff to recover property in his custody under attachment against a third person, on demanding a delivery of the property prior to suit, did not state the nature of his interest, did not invalidate the demand.
    2. Title to Personalty — Estoppel.
    Plaintiffs, who furnished the money with which W. bought potatoes, under an agreement that title should be in them until they were reimbursed out of the receipts of sale, were not estopped to set up their title as against an attaching creditor of W., because, before the attachment was levied, but after the debt sought to be collected was incurred, they stated to an agent of the creditor, who assumed the role of a prospective purchaser, that W. owned the potatoes and could give a good title.
    Error to' Grand Traverse; Mayne, J.
    Submitted February 1, 1900.
    Decided March 6, 1900.
    Replevin by Owen Schoolcraft and Chauncey E. School-craft against Oscar Simpson, sheriff. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Pratt & Davis, for appellant.

      Patchin & Crotser, for appellees.
   Moore, J.

This is an action of replevin. From a judgment in favor of the plaintiffs, the defendant has brought the case here by writ of error.

The Wade Brothers were at one time engaged in buying potatoes. The Armour Refrigerator Car Company had a claim against them of upwards of $400. It sued out a writ of attachment, which writ was placed in the hands of the defendant, who, under the direction of the attorney for the Armour Refrigerator Car Company, who claimed the potatoes belonged to the Wade Brothers, levied upon the potatoes, — about 1,350 bushels, which were in cars 8,182, 4,756, and 4,624 on the railroad track at Traverse City, Mich. The plaintiffs, claiming to be the owners, made a demand upon the sheriff for the potatoes, and, upon his refusal to give them up, replevied them. The plaintiffs are engaged in the grocery business. Prior to the 20th of March, the Wade Brothers had deposited with them some money for the purpose of paying for potatoes which Wade Brothers were to buy. They purchased potatoes either personally or by their agent. The farmer who sold the potatoes was given bills showing the price and quantity of the potatoes he sold. These bills were presented to plaintiffs, and paid from the money belonging to Wade Brothers. About the 20th of March, Wade Brothers got an order for two car loads of potatoes to be sent to Nashville, Tenn. They did not have money enough to buy them. The testimony is conflicting as to whether they had a small amount of money in the hands of the plaintiffs, or had purchased some potatoes with that money. They applied to the plaintiffs for money to enable them to purchase the two car loads of potatoes, when an arrangement was made, which is stated by Mr. Wade as follows:

“I know the property in question, those three cars of potatoes mentioned here. * * * The arrangement under which these potatoes were bought was, I got an order for two cars, and I didn’t have money enough to fill them, and I proposed to Schoolcrafts that they should put money enough in to fill the cars out, and hold the potatoes for the money; that is, the potatoes were theirs until I paid them -their portion out of it; the potatoes were theirs until they were paid. I told them that, if there was anything in it, I would allow them a cent and a half a bushel for them; that is, they were to have a cent and a half a bushel.
Q. Well, supposing there was nothing in it, how was it to be as to their getting their money out of it ?
“A. Why, they had what money we had into them as security for their money. Their money bought most of these potatoes. We put some potatoes of our own into the same car. The arrangement was that the potatoes we purchased ourselves were to belong to them until they were paid. The potatoes were on the Gr. R. & I. track in Traverse City. * * * First began using any of School-craft Brothers’ money, about the 20th of March. Never used any of their money before that time. The arrangement was made in their store, and I think some time along about the 22d of March; but I am not certain. I had an order from F. J. Loy & Co. for two loads of potatoes, and I didn’t have money enough to fill the cars, and it was an order that they wanted me to accept, and potatoes at that time were coming very slow, and I wanted to fill the cars, so as to have them in shape to ship out, and I proposed to these men to help me fill the cars, and they could hold the cars as security for their money; in other words, they could own the potatoes until I shipped the cars.
‘1 The cars were placed on the Gr. R. & I. track, near the depot, to be loaded. I think we loaded these pototoes in three or four days. * * * Potatoes were all put back into the two cars. Schoolcrafts sold one car and a half, and I sold half a car of them. The potatoes were loaded into the cars here on the G. R. & I. track. I ordered the cars placed there. The cars were out on the track at the time the attachment suit was commenced, were numbered 4,756, 4,624, and 8,182. At the time the understanding was had with Schoolcrafts, -there were two cars that we had orders for, and the understanding was that they were to put in money enough to fill those two cars. The understanding was that whatever money we lacked they would put in. * * * The parties of whom the potatoes were bought had to go to Schoolcrafts to get their money. I had been in the habit of having them go to Schoolcrafts to get their money all winter. That was the place I did my business and had my money deposited. Schoolcraft Brothers always paid out my money as long as I had any there. They paid out all of our money in these two cars,— about $300. They had paid out all money we had on deposit there. I had a right to sell these potatoes subject to their approval. I had no right to sell them without transferring the money over to them. My right to sell them would depend upon whether I transferred the money over to them or put it into my pocket. The idea was just like this: The same as any other man’s property you have' a right to sell it. I had a right to sell these potatoes, and turn them over the money. * * *
“The numbers of the cars in which the potatoes were loaded were 4,756, 8,182, and, I think, 4,624. Two of these cars were the Armour Refrigerator Car Line Co., and were held under a lease from that company, and they are the plaintiffs in the attachment suit. Two letters show that car number 4,756 was being loaded on the 18th of March. I. don’t know how long this car had been loading on the 18th of March. Made this arrangement with Schoolcrafts on the 22d of March, and think we had some money on deposit there then. Don’t know when it was all paid out. Don’t know when Schoolcrafts first began to use their money. I think car number 4,756 was loaded first. It contained about 650 bushels. I don’t know how many days we were loading the first car. * * * The potatoes cost from 45 to 48 to 52 cents per bushel. The man I had working for me kept track of what was paid for the potatoes. He marked the prices to be paid on the weigh-bills that were sent over to Schoolcrafts’ store. Mr. Dewitt would weigh the potatoes, and turn the weight over to Black, and Black would put down the price. The weigh-bills were taken to Schoolcrafts, and paid, and that is the only way I know how much Schoolcrafts paid. * * * The farmers that sold us these potatoes went to Schoolcrafts, and got their pay, just the same as for the potatoes that we had been buying during the winter. In other words, -when we first began to buy potatoes at Traverse City, we made arrangements to leave our money with Schoolcrafts, and they were to pay these checks when they were brought in. I don’t remember just when this arrangement was made. We shipped out potatoes from Traverse City before the 22d of March, and the potatoes in this car had been purchased in the same way. They had been weighed in, ■ and the slips had been sent to Schoolcrafts, and they, had paid for the potatoes. * * *
“Now, we had a different- arrangement, I think, on these two cars, from any cars that we shipped. We never had any arrangement with Schoolcraft Brothers to advance any money for us before, and I don’t think they ever did. I remember having a conversation with Mr. Bryan about these potatoes. He wanted me to turn over two cars, claiming that he had a bill against me of $485. He wanted to know if I could turn over to them two cars to pay his bill. I said, ‘No, I can’t;’that the potatoes did not belong to me. He wanted to know who he was doing business with,— a nonentity, or wasn’t. I told him he was doing business with us all right enough. He wanted to know if I could come down to the hotel, and meet him, at 7 o’clock that night. I told him I would. He said that it had to be settled. I told him I could not settle it, and I went down to go to the hotel before 7 o’clock, and on the way down I went to the cars, to see if they were all right. Mr. Black was with me. I got down there, and the cars had the Gr. R. & I. locks on. Went up to the hotel, and met Mr. Bryan, and he said that he had attached the cars. These potatoes had been loaded there in the cars from some time in March down to the 4th of April, and had our own locks on. Mr. Black carried the keys, and he was in our employment, and the locks that Mr. Black had the keys to had been taken off, and other locks put on. The car 4,624 was one of the cars attached, and the potatoes that were in that car were transferred from car 8,182, and I don’t know when they were put in there.”

Other testimony was given to show that the potatoes were to belong to the plaintiffs.

It was the claim of the defendant that plaintiffs simply loaned Wade Brothers money to buy the potatoes, and were not the owners of the potatoes at all, but simply creditors. He also says, giving the most favorable construction possible to the testimony on the part of the plaintiffs, that they own the part only of the potatoes for which their money paid, and attempted to get a lien upon the balance, but did not secure the lien because, the possession of the potatoes was not turned over to them. The counsel make the following claim in their brief:

“We submit that the property should have been divided into three classes:
“1. The potatoes paid for by Schoolcrafts’ money, the title to which was in them, and for which they were entitled to a verdict.
“2. The potatoes bought by Wade Brothers, and placed in car 8,182, which were paid for with their own money. As to those, the plaintiffs were only entitled to a verdict provided they had actually passed into the possession of plaintiffs. As they had not, the jury should have been so instructed, and a verdict for those should have been entered for defendant.
“3. The potatoes in car 4,756, which were outside of the agreement, and the court should have so instructed the jury.”

As to the last of these propositions, we do not think the testimony sustains the contention of counsel. The jury were not asked to so find. There is nothing to indicate in the record that the judge was of the opinion that plaintiffs could recover for potatoes that were not within the agreement, or that counsel for plaintiffs so claimed. The judge charged the jury as follows:

“Under the evidence in this case, the defendant claims that, at the time of the replevin, he was holding the property in question for the Armour Refrigerator Car Company herein. You are instructed, as a matter of law, that the demand made was such a demand as the law contemplates. No more specific demand is required by law than was given by the attorneys for the plaintiffs.
“If the jury shall find from the evidence that the plaintiffs are entitled to recover any of the potatoes in controversy, they must specify the amount of the same, and also by their verdict, if they find in favor of the defendant, that they state in said verdict the amount of potatoes which are to be returned by said plaintiffsdo said defendant.
“It will become necessary for the jury to proceed to ascertain and determine the ownership of the property in question, in order to ascertain and determine what verdict they are to render in reference to said pi’operty. You are therefore instructed that if, at the time of the commencement of this suit, the said plaintiffs were the absolute owners of any part or portion of the property in controversy, as to what part or portion is to be omitted from any verdict which you are to render in this cause. If, however, the jury find from the evidence that a portion of said potatoes belongs to said John A. Wade and Frank D. Wade, then, as to that part or portion of the property, your verdict must be in favor of the defendant and against the plaintiffs for the return of the same; and it is your duty, in rendering said verdict, to specify the amount in bushels of the potatoes belonging to said John A. Wade and Frank D. Wade, and for which you will render a verdict in favor of the defendant.
“If at the time of the commencement of the attachment suit, as well as at the time of the commencement of this replevin suit, you should find that the Schoolcrafts, the plaintiffs, by reason of their agreement with Wade Brothers, were to have the title to all of those potatoes in question, including not only those purchased with their money, but those which Wade Brothers then had on hand, and which they agreed to turn over to the Schoolcrafts; that those potatoes were turned over to the Schoolcrafts, and were intermingled with the potatoes that were purchased with the Schoolcrafts’ money; that the Schoolcrafts had the custody and control, together with the right of possession and the possession, of those potatoes, the same as they did of those that were purchased with their own money, — then the plaintiff's in this cause are entitled to recover at your hands. At that time the firm of Wade Brothers and the Schoolcrafts had a right to enter into an agreement of this kind, by which the Schoolcrafts were to advance money, taking the title to these potatoes as a security for the moneys advanced. There is no claim that subsequent to that time — the time of making that agreement — that the Armour Car Line Co. advanced or extended any credit to the firm of Wade Brothers, or that, they were deceived, and acted to their own detriment, in their dealings with the firm of Wade Brothers, by reason of this arrangement with the Schoolcrafts and the firm of Wade Brothers. So I say, if you find that that agreement, as claimed by the plaintiffs, was actually entered into, you should find a verdict for the plaintiffs.
“If you should find that the plaintiffs in this cause extended to the firm of Wade Brothers- — that they made them a loan of this money, dealing with them as they would with others, and taking no security; that they merely advanced them the money,■ — -then they stand exactly in the same position as any other creditor. They would have no claim upon these potatoes in question, and the Armour Car Line Co. would have the right to attach them as against the firm of Wade Brothers, and would have a right to subject these potatoes to their claims as against the plaintiffs in this cause.
“ If you find that as to the whole of this property, or to any part of it, that the plaintiffs in this cause only had a special interest in the property, that that special interest was satisfied prior to the commencement of this suit, or that at the present time it only exists as a part of the property, then your verdict should specify the interest which each of the parties has in the property, and you should state the number of bushels to which each is entitled in your verdict. If you find that there was a portion of the property that was purchased with the money of the firm of Wade Brothers, and that that was under an agreement that the firm of Schoolcraft Brothers were to have absolute title to that property, then your verdict should award them such property. If you find that as to that portion of the potatoes which Wade Brothers had and which they owned at the time the money was commenced to be advanced by Schoolcraft Brothers, and which was not purchased by the money of the Schoolcraft Brothers, that it was the agreement and understanding that the Schoolcrafts were to have merely a lien upon that, and not the absolute title and right of possession; and if you find that it was kept separate from the other potatoes purchased by Schoolcrafts’ money; that it was not intermingled with them; that Wade Brothers retained all the possession, custody, and control of those potatoes, separate and distinct from the other potatoes, — then that agreement would be void, and the defendant would be entitled to recover at your hands.
“If, on the other hand, you find there was an agreement for a lien upon this property in addition to the title to the other potatoes, and that Wade Brothers placed these potatoes, together with the other potatoes purchased, in those cars; that they were all intermingled; and that the right, custody, and control of those potatoes were all alike, — were all in the Schoolcrafts, — then the School-crafts have the right to retain the whole until they obtain their money, and they have a right to recover a verdict at your hands.
" ‘ ‘ If you should find further that they were j oint owners, that each had an undivided interest, then your verdict should be for the defendant, because one joint owner can-' not.bring an action of replevin against his joint owner; and in this case the other joint owner would be represented by the sheriff.
“My attention was called by the requests of both these parties to the testimony of this agent, Mr. William E. Bryan. If you find from his testimony that he went to the store of the Schoolcrafts, and represented to them that he wanted to purchase these potatoes, and asked if a perfect title could be obtained in case he did purchase them, and, further, that the Schoolcrafts said that that was so,— that he could get title provided he purchased them, — that statement, made by the Schoolcrafts in that connection, would not estop them from now coming in and maintaining title to these goods, for the reason that they had a right at the time to answer the question as it was asked, believing that, if the firm of Wade Brothers sold and conveyed title to him, that they would get their money out of it by reason of such sale. If the Armour Car Line Co. were here as purchasers relying on that statement, they would be in an entirely different position from what they are in as attaching creditors, inasmuch as the testimony does not show that they extended the credit for which the attachment suit was brought by reason of having been misled, or relying upon the statements made by School-craft Brothers.”

It is claimed the court- erred in saying the demand made by the plaintiffs to the sheriff for a return of the property was sufficient. Counsel say the demand should have given defendant notice of what plaintiffs claimed, for the reason that the sheriff could not tell what to do until he was informed of the plaintiffs’ claim; counsel citing Campbell v. Quackenbush, 33 Mich. 287, and a number of other Michigan cases. A reference to these cases shows that they were all replevin cases, in some of which no demand was made before bringing suit, and it was held that in the several cases a demand was necessary; but none of them indicate that the demand made in this case was not sufficient.

Counsel insist the court erred in his charge to the jury as to the effect of the conversation had between Mr. Schoolcraft and the attorney for the plaintiff in the-attachment suit before the attachment suit was commenced. The witnesses do not agree in relation to that conversation. It does appear, however, that, before this conversation, the attorney had been informed by Mr. Wade-that Wade Brothers did not own the potatoes. According to the testimony of the attorney, he appeared before-Mr. Schoolcraft in the character of a buyer.

“I asked him if I should buy these three cars of potatoes on the track from Wade Brothers, if I would be able to get a good title to them; if Wade Brothers owned the potatoes, and if they were paid for. He said, ‘Yes, they are Wade Brothers’ potatoes;’ and he also said that, if I would buy them, I would get a good title.”

On the cross-examination he testified:

“Their answer was I was all right; go ahead and buy the potatoes; that Wade Brothers owned them; that they were all paid for. Of course, they said, they might owe a dollar or so to the farmers, but, so far as that is concerned, they owe us $275 or $300, money loaned them to-buy these potatoes. ”

Mr. Schoolcraft says Mr. Bryan “wanted to know if Wades owned these potatoes,— had a right to give title to them; but I didn’t state it as Mr. Bryan says, — that we had loaned Wade Brothers $300. I did tell Mr. Bryan that Wade Brothers could give a good title after they had paid us.” Mr. Bryan was not frank with the plaintiffs. He did not ask them if Wade Brothers had an interest in the potatoes which he could attach, but gave them the impression he wanted to buy the potatoes. Of course, the potatoes were for sale. They were bought to be sold again, and Mr. Schoolcrhft might well say a buyer would get a good title, for it was expected the plaintiffs would be paid out of the proceeds of the sale.

The claims of the respective parties were conflicting. Each produced such testimony as it could in support of its claims. The case was fairly submitted to the jury. Judgment is affirmed.

The other Justices concurred.


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    SALTER v. SUTHERLAND.
    Estates of Decedents — Conversion—Right of Action.
    Where a husband, on the death of his wife, takes possession of chattels held by her under an arrangement with the owner giving her the use of them for her lifetime only, the owner alone may maintain replevin, no right of action accruing to the administrator of the wife’s estate.
    Error to Gratiot; Daboll, J.
    Submitted February 1, 1900.
    Decided March 6, 1900.
    Replevin by Marvin R. Salter, administrator of the estate of Julia E. Sutherland, deceased, against Daniel M, Sutherland. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John T. Mathews and John M. JEverden (Cahill & Wood, of counsel), for appellant.

      Searl & Kress and George P. Stone, for appellee.
   Moore, J.

Lorenzo Squire was, prior to 1895, the owner of a farm, upon which he resided with his wife and daughter. His wife died, and his daughter continued to live with him. The daughter married the defendant, Daniel M. Sutherland, in February, 1895. It is the claim of the plaintiff, as stated by his counsel, that: -

4 ‘ In April after the marriage, Mrs. Sutherland said to her father: 41 don’t want to go away; I want to stay here upon the farm with you.’ This conversation was had in the presence of Aaron Squire, his wife, Nettie, and the defendant. The old gentleman replied to her, saying: ‘You may remain in my home here, and occupy it with me as your home, and live with me, and take care of me during my life. You can use my household effects, and I will turn over to you the use of my farm here, and you to pay the taxes, and keep it in good condition; and I will also turn over to you for that purpose — for the purpose of working the farm — my personal property here upon the farm [which was then and there enumerated], to be used, kept, handled, and husbanded upon my farm, for the mutual good of yourself and me; and, if you survive me, then this property, or whatever shall remain of it, shall be yours at the time of my death.’ This property, and the money arising from the sale of personal property and the use of the farm, during the life of Lorenzo Squire, were to be under the joint supervision and control of Julia and her father; and, in his language used to her at the time, ■ while she might have the active management of the property, he proposed to keep his hand upon matters as long as he lived. It was agreed that the personal property should be kept in good condition and repair, and replaced by other stock or new implements when needed. In other words, Julia was to become trustee for her father of the personal estate then turned'over to her, with accumulations, the use of the farm, and its proceeds, out of which she should render to her father his support, care, nursing, and maintenance, pay the taxes upon the farm and personal property; and at his death, if she should have fulfilled the conditions of the trusteeship, she should become absolute owner of the property, or what should remain of it, which might be left after the payment of all expenses of the old gentleman living. Julia consented to this arrangement, and accepted possession of the property in the manner and relation proposed, and occupied it under that agreement until in January, 1898, when she died.”

It is not claimed the father ever parted with his title to the property, but it was to remain in him until his death. After the death of Mrs. Sutherland, Mr. Salter was appointed her administrator, and, with the consent of Lorenzo Squire, brought replevin for some of the personal property turned over to Mrs. Sutherland by her father, which it was claimed was unlawfully detained by Mr. Sutherland. The plaintiff gave testimony tending to establish the above state of facts. No testimony was introduced on the part of the defendant.

The trial judge was of the opinion that, inasmuch as Mrs. Sutherland was not the owner of the property, and only had the right to the use of it during her lifetime, the title remaining in the father, he, and not the administrator, should have brought the suit, and directed a verdict in favor of the defendant. The plaintiff, through his counsel, says:

“ The circuit judge lost sight of an important consideration. Mrs. Sutherland having been intrusted with this property merely to use, keep, preserve, and account for, she had no right, under the arrangement with her father, to give the property to her husband, or to sell it to him or any one else. If she had done so, the father might have reclaimed it from the husband by a suit in replevin. But he was not bound to do so; he might have sued his daughter in trover for the conversion of the property. At her death, her husband, naturally succeeding to the temporary possession of the property, claimed it as his own, and refused to give it up to the administrator on demand. The record does not disclose the nature of his claim, but that is not important, .inasmuch as the court held that the plaintiff could not recover in any event. Under the case made by the plaintiff, the question is: Was the estate of Mrs. Sutherland liable to be charged with the value of the property if it was not produced and turned over to Mr. Squire, the owner ? Clearly, it was, if she had given it to her husband, or otherwise disposed of it contrary to the agreement under which she held it. Mr. Squire was not bound to search' for and reclaim the property from strangers. He had a right to call upon the administrator to turn the property over to him, and, if he failed, Mr. Squire would have had a claim against the decedent’s estate for the value of it.”

They urge that the plaintiff in this case, to protect'the estate of which he is administrator, has a right to get possession of this property, so as to turn it over to Mr. Squire, if he is entitled to it, or to whoever is entitled to it.

It is said that under section 10117, 3 Comp. Laws 1897, the action of replevin survives, and that, when the statute provides that a cause of action shall survive, it is equivalent to saying an administrator may sue on it; citing Wales v. Newbould, 9 Mich. 45; Rogers v. Windoes, 48 Mich. 628 (12 N. W. 882). The record does not show defendant converted any of this property during theIifetime of his wife, so that she might have brought suit during her lifetime; so that, so far as is disclosed here, she-had no right of action against him to which the administrator would succeed by virtue of the statute. She had no title to the property; that was retained by her father. Her administrator, if he succeeds in getting possession of the property, could not sell it to pay the debts of the deceased, if there were any. As to the claim that Mr. Squire might look to the administrator of the estate for the property, and, if it was not turned over to him, would have a claim against the estate, are the facts such as to-warrant that claim ? Mrs. Sutherland did not convert the property in her lifetime, but simply made use of it as she had a right to make under the contract. Her father would have no claim by reason of anything she did. The contract did not provide that the heirs of Mrs. Sutherland, or her administrator, should have any right to the control or possession of the property. The administrator never has had it in his possession, and, of course, has never converted it. How, then, can there be any claim against the-estate because the administrator does not turn over what never came to him, and to the possession of which he was not entitled by virtue of the contract ?

We have not overlooked the case of Cullen v. O'Hara, 4 Mich. 132. That case was an action of trover, in which the administrator claimed the property as administrator of the estate of one B., who died possessed of it. The-defendant claimed it belonged to the estate of one O., who-died intestate, leaving no widow, and but one child, of whom defendant was guardian. He insisted that as such guardian he was entitled to the property as against the plaintiff. No administrator had been appointed upon the estate of O. In that case the court said the rights of defendant were co-extensive with those of his ward, and added:

“When a man dies intestate, his personal property does not, like his real estate, descend to his next of kin or heirs-at law. It remains in abeyance until administration granted upon his estate, and is then, as we have before remarked, vested in the administrator as of the time of the death of the intestate. • No title vests in his next of kin until his estate has been administered upon, and then they take the surplus remaining after payment of the debts of the intestate and expenses of administration, each in his proportion, under the statute of distributions. * * * Until then an heir or next of kin of the intestate, although having a right to his distributive share, has no right to the possession of either the whole or any specific portion of the personal property. * * * In fact, his rights of possession and of action in respect to the personal property before distribution are neither greater nor less than those of a mere stranger.”

For the foregoing reasons, the majority of the court held the plaintiff could maintain the action.

In this case there was no claim that the property belonged to the estate of Mrs. Sutherland; it was admitted it belonged to Mr. Squire; so that the case of Cullen v. O'Hara, supra, is not authority for maintaining this action.

In Smiley v. Allen, 13 Allen, 465, a coroner came into possession of property found upon the body of a person killed by an accident. He sought to defend against the owner of the property, who brought replevin, upon the ground that it was his duty to deliver the same to the administrator of the estate of the deceased person. It was shown upon the trial that the plaintiff delivered the property to the deceased, and permitted him to use it, as a favor and an act of friendship, without any stipulation as to the length of time he should be allowed to do so. The court held:

“The deceased person was a gratuitous bailee. The articles were lent to him by the plaintiff, subject to be reclaimed by her at any moment. His death did not in any way affect or change her right of property, or of immediate possession on due demand. * * * The administrator of the person deceased had no right or title in them, nor could he lawfully claim to retain possession of them as against the plaintiff. There was no lien on them in favor of the intestate’s estate. The bailment was at an end, and the right of the plaintiff to resume possession was absolute. We know of no principle or rule of law by virtue of which an administrator can claim a right, as against the owner, to receive or take possession of property belonging to another person, which was in the hands of his intestate at the time of his death, and which the latter would have been bound to deliver to the former at any moment on demand.”

See, also, Ring v. Neale, 114 Mass. 111 (19 Am. Rep. 316).

If Smiley v. Allen is rightly decided, Mr. Squire not only held the title to this property, but he was also entitled to its possession. Mrs. Sutherland was his bailee. She was entitled, if she complied with the conditions under which she held it, to the possession of the property daring her life. Her death terminated the bailment. Mr. Squire could at once assert, not only title to the property, but his right to the possession of it. The administrator never had possession of the property. He has no title to it. He has no right to the possession. This being so, we think a proper disposition was made of the case.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. KEEP.
    1. Criminal Law — Escape prom Jail.
    Upon a prosecution for robbery, evidence that the respondent escaped from jail while serving a sentence for a misdemeanor is competent, where it appears that he was at the time under arrest for the robbery, and knew that he would be put to trial for that offense.
    2. Same — Robbery—Evidence.
    Upon a prosecution for robbery, where it appeared that stolen articles were found on respondent’s premises, and that a billy belonging to him was picked up near the scene of the crime, it was proper to admit evidence that a pointed-toé shoe found concealed in respondent’s barn, and which made tracks corresponding to those near the place of the robbery, fitted the respondent; it appearing that he wore such shoes at the’time of the robbery, and ceased their use a short time afterwards.
    Error to Kalamazoo; Buck, J.
    Submitted February 1, 1900.
    Decided March 6, 1900.
    Milo Keep was convicted of robbery, and sentenced to imprisonment for seven years in the state prison at Jackson.
    Affirmed.

      T. E. Barkworth, for appellant.

      Sheridan F. Master, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted upon an information having two counts, — one for robbery and one for larceny. The record shows that on the 13th of August, 189?, William Duggan was living alone upon a farm. A little after noon he had occasion to go into the house. As he put his head inside the doorway, he was struck a severe blow upon the head. He was severely beaten, his arm was broken, and he was robbed of upwards of $35. When he recovered consciousness, he went to the house of a neighbor. The alarm was given, and an effort was made to learn who his assailants were. His assailants were at least two in number. In passing through a field of corn, they left tracks indicating that one of them wore shoes having round or square toes, and the other, shoes having pointed toes.

But two assignments of error are argued. The people were allowed to show by the sheriff, without objection, that while respondent was in jail he escaped from jail. When inquiry was made as to the manner of escape, a motion was made to strike out all the testimony. The ground of the motion was not very clearly stated to the trial judge, but the overruling of the motion is now urged as error, because the respondent was serving time under a sentence for a misdemeanor, and it is said that, to make the testimony competent, the escape must relate to an attempt to avoid a trial of the offense for which the accused is on trial. The record is not very full, but it does appear from it that, at the time of the escape, respondent was under arrest for this offense, and knew, from conversations with the sheriff, that it was claimed that he was one of the persons who robbed Mr. Duggan, and would be put upon trial for the offense. Under such circumstances, the testimony was competent. Whart. Cr. Ev. (9th Ed.) § 750.

It is alleged that error was committed in allowing evidence that a shoe which was offered in evidence fitted the respondent. It is said that the evidence was too shadowy to be dignified as proof, and that its admission prejudiced the respondent. The record discloses that respondent and his father lived together alone; that, the night before the robbery, some sheets were stolen from the house of Mr. Duggan, which were found in the house occupied by respondent and his father. Near the place of the robbery, a billy was'found, made out of the butt end of, a whip. The other portion of the whip respondent admitted belonged to himself, and said that he had cut it off to use in a parade. It was shown on the part of the people that at the timé of the robbery, and a few days thereafter, respondent wore pointed shoes, and that shortly after-wards he ceased' to wear them. Prior to the trial, a pointed shoe was found concealed in the hay in a barn used by’the respondent and his father. Tracks made by this shoe corresponded in measurements to the pointed tracks found in the cornfield. This shoe was, without objection upon his part, tried on by the respondent. The people were allowed to show that the shoe fitted him. This is said to be error. We think, under the proofs shown, that the testimony was entirely competent.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE V. HOGAN.
    Burglary — Evidence—Sufficiency.
    One of two burglars escaped by breaking through a window, but the other was killed. The next morning respondent was arrested at a neighboring town, taken to the place of the burglary, and acknowledged that the dead burglar was his friend. They had been seen together the afternoon before the burglary, going towards another house, from which a pair of shoes and two shirts were stolen. Respondent had on the shirts, and the dead burglar wore the shoes at the time he was killed. They were also seen together late on the night of the burglary. Respondent had a cut on his hand, and was also shown to have breakfasted at a place between the town where he was arrested and where the burglary was committed. Held, to warrant a conviction of the burglary.
    Error to Cass; Coolidge, J.
    Submitted February 1, 1900.
    Decided March 6, 1900..
    Harry Hogau was convicted of burglary.
    Affirmed.

      Charles E. Sweet, for appellant.

      Cassius M. Eby, Prosecuting Attorney, for the people.
   Moore, J.

The respondent appeals from a conviction upon the charge of burglary. The record shows that early one morning in May, 1898, a night watchman in the village of Marcellus discovered burglars in a hardware store. He obtained the assistance of the village marshal, and the two repaired to the rear of the store. When they were within a short distance of the back door, a man stepped out with a drawn revolver, and directed them to throw up their hands. The marshal at once shot and killed the man. Almost immediately after this they heard a crash in the front of the store, and found a window broken out, and heard the footsteps of a man running away. The next morning the respondent was arrested, at Cassopolis. He said he stayed the night before at South Bend, Ind. When taken to Marcellus and shown the dead man, he at first denied any acquaintance with him, but afterwards said that he was the best friend he ever had, and that his name was Helmer. There was a small cut upon the hand of respondent when arrested, which he said was made upon a tin can he was using to make coffee for breakfast. Testimony was given on the part of the people tending to show that, on the afternoon of the burglary, the respondent and Helmer were seen going toward^ the house of Mr. Clark, near Marcellus. Mr. Clark and his people were not at home. When they returned, it was found that the house had been entered in their absence, and, among other things, two shirts and a pair of shoes were stolen. Testimony was given that two persons, who the witness believed were respondent and Helmer, were seen in Marcellus about 11 o’clock the night of the burglary. It was also shown that respondent, the next morning after the burglary, stopped at a house between Marcellus and Cassopolis, and was given his breakfast. The shoes stolen from Mr. Clark were on the feet of the dead man when he was shot. The shirts were on the respondent when he was arrested. He denied that he had stolen them, but said that he bought them of two strangers. He was sworn as a witness in his own behalf.

It is argued in the brief of counsel that there is no evidence whatever that the respondent committed the burglary. It is said that the judge erred in leading the jury to believe that, if the respondent was guilty of the larceny of the shirts, he was guilty of the burglary; counsel arguing that the possession of stolen property is not prima facie evidence of the guilt of the party in possession of it, and citing People v. Gordon, 40 Mich. 716, and Stuart v. People, 42 Mich. 255 (3 N. W. 863 ). We cannot agree with counsel in his opinion of the evidence. There was a great deal of testimony tending to show the guilt of respondent. In view of the various claims made by respondent as to where he spent the night of the burglary, and of how he came by the shirts, and of his denial that he knew Helmer or that he was in Marcellus when the burglary was committed, the testimony of which we have given a brief summary was all competent. The learned judge was very careful to say to the jury they were not to convict the respondent of burglary unless his guilt was shown beyond a reasonable doubt. It is true, he said to them that the unexplained possession of goods recently stolen might be evidence of the larceny of the goods, which we understand to be the rule. People v. Carroll, 54 Mich. 334 (20 N. W. 66); People v. Walters, 76 Mich. 195 (42 N. W. 1105). But he also charged the jury that respondent was a competent witness in his own behalf, and they had the right to consider his testimony the same, precisely, as they would that of any other witness. He also told them that while the finding of the shirts in possession of the respondent, if it be true, and his not giving a reasonable account of how he came by them, is evidence of his guilt of larceny, it is not evidence of burglary. In another part of the charge they were told that, if respondent was guilty of the larceny of the shirts, it was not evidence of a burglary, but it was an important fact in the case. The learned judge was careful to see that respondent had a fair trial, and we do not see how, from the evidence, the jury could reach any other conclusion than the one reached by them-The conviction is affirmed.

The other Justices concurred.


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    WAIT v. GARDINER.
    State Tax Lands — Purchase by County Treasurer.
    The duties of the county treasurer and his deputies in relation to keeping lists of lands subject to purchase as State tax lands, and furnishing information therefrom to the public, are such as to preclude either of them, on the ground of public policy, from purchasing such lands from the State.
    Appeal from Clare; Dodds, J.
    Submitted January 12, 1900.
    Decided March 6, 1900.
    Petition by R. A. Wait against Joseph W. Gardiner for a writ of assistance. From an order granting the writ, respondent appeals.
    Reversed.

      George J. Cummins, for petitioner.

      J. H. Canfield and C. W. Perry, for respondent.
   Long, J.

This is a petition for a writ of assistance. The lands in question were returned delinquent for the taxes of 1892, sold, and bid in by the State. In January, 1897, the petitioner purchased the State bid, and now asks, by his petition, to be put in possession of the lands. The answer sets out, among other things, that, at the time the petitioner purchased the State bid, he was the deputy cpunty treasurer of Clare county (being the county wherein said lands are situate), and that his purchase of the same was void by reason thereof. It is conceded that the petitioner was deputy county treasurer at that time. The court below granted the writ as prayed, and from such order the respondent appeals.

We think the court below was in error. The county treasurer and his deputies have certain duties to perform for and in behalf of the public, which preclude them from becoming purchasers of such State bids. ' The records of sales are kept in the treasurer’s office. Certainly neither the treasurer nor his deputies can become purchasers at the annual sales, for they are to make the sales to one who will take the least land and pay the tax. When the land is bid in to the State, and no one takes the State bid before the next annual sale, it is then the duty of the treasurer to offer the land to the highest bidder. Act No. 206, Pub. Acts 1893, § 79. It is also the duty of the county treasurer to keep an account of all lands sold from the list bid in by the State, and of all lands on which the taxes have been paid. Id. § 88. It is also his further duty to furnish tax histories and lists of State tax lands on application of any one who may desire them. Act No. 161, Pub. Acts 1895, as amended by Act No- 21, Pub. Acts 1897. The duty of the county treasurer is plainly marked out by the statute. He must make the sales of these lands, and he is obliged to keep a record of their condition, and lists, for the information of the public. The county treasurer and his deputies, then, are always in a position to know the situation and condition of every piece of land in the .county which has been returned delinquent for taxes, and may at any moment give wrong information in reference thereto. If one seeks to purchase a State bid, the county treasurer or his deputy may step in ahead and make the purchase. • Here the deputy treasurer made the purchase soon after he became deputy. The lands were in a list kept in the treasurer’s office, and presumably he derived his information as to the situation and condition of the land by looking over the list. At least, the opportunity was open for him to do so. As illustrated by counsel:

“If a person desires to learn from the treasurer the amount required to buy a certain piece of land that is valuable and particularly desirable, the treasurer has it in his power to inform such inquirer that such parcel is applied for, and immediately apply for it himself, or have some trusted friend do so; thereby defeating the intention of the applicant for what he thinks will inure to his benefit.”

It was expressly held in Clute v. Barron, 2 Mich. 192, that a county treasurer cannot become a purchaser at the annual tax sales; and in Hall v. Collins, 117 Mich. 617 (76 N. W. 72), it was held that the county treasurer cannot act for the purchaser. We think it must be held that neither a county treasurer nor his deputy can purchase lands from the State under such circumstances.

The decree below must be reversed, and a decree entered here setting aside the order made below; and the respondent' having filed an answer in the nature of a cross-bill, asking that the petitioner’s deed be canceled and held for naught, the relief asked here must be granted, with costs.

The other Justices concurred.


author: Hooker, J.

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    TORPY v. BETTS.
    Wills — Perpetuities.
    A will devising a life estate to testator’s wife, remainder to a son on condition that he pay to a daughter a specified sum of money, and providing that, in case of the death of son or daughter without issue before the death of the wife, the survivor shall take the fee, and that, in case of the death of both without issue before the death of the wife, the latter’s life estate shall become a fee-simple, does not suspend the power of alienation for an unlawful period, since, if the provision as to payment be a condition precedent, there would nevertheless be persons in esse at the death of the wife who, by joining, could convey the fee.
    Appeal from Ionia; Davis, J.
    Submitted February 1, 1900.
    Decided March 6, 1900.
    Bill by Frank Torpy against Lenora Betts, Stephen Hunt, and Grace May Hunt, to construe the will of. John Betts, deceased. From a decree for complainant, defendants appeal.
    Affirmed.

      R. A. Hatuley, for complainant.

      W'. H. Mains and George E. & M. A. Nichols, for defendants.
   Hooker, J.

Lenora Betts was at one time the wife of one Torpy. She was afterwards married to John Betts. Frank and Grace Torpy were born to her while she was the wife of Torpy! Her marriage with Betts occurred in 1891, and he died in 1894, leaving a will containing the following provision, viz.:

“First. I do give and bequeath my entire real property of which I mqy die seised and possessed, and which now mainly consists of the east one-half (i) of the northwest one-quarter (J) of section thirty-two (32), town five- (5) north, of range six (6) west (being in the township of Sebewa, county of Ionia, and State of Michigan), with all the appurtenances and hereditaments thereto, to my beloved wife, Lenora Betts, for the term and time of her natural life, with all the emoluments, gains, and profits accruing therefrom, with full authority during said lifetime to make any improvement or alteration in appurtenances of the said real property that she may desire. Upon the death of my said wife, Lenora Betts, then said real property is to become' the property in fee simple of' her son, Frank Torpy, subject, however, and the bequest is specially conditioned upon the payment by said Frank Torpy or his representatives of the full sum of five hundred dollars in money to Grace May Torpy, daughter of my said wife, Lenora Betts, or her legal representatives. In case, however, that either said Frank Torpy or said Grace May Torpy shall die and leave no issue before the-death of my said wife, Lenora Betts, then, upon the death of my said wife, Lenona Betts, either said Frank Torpy or said Grace May Torpy, as may survive, shall take-in fee simple the entire real property of which I may die seised and possessed. And in case both said Frank Torpy and said Grace May Torpy shall both die without issue-before the death of my said wife, Lenora Betts, then, and in that' case only, shall the said property goto such person, persons, or interest as shall be my said wife, Lenora Betts’, last will and testament, or otherwise by indenture disposed of by her; it being my intention that in case of such death of both said Frank Torpy and Grace May Torpy, without issue to either, before the death of my said wife, Lenora Betts, then the life estate heretofore-bequeathed to my said wife, Lenora Betts, shall become-an estate in fee-simple absolute.”

Grace married Stephen Hunt, and after the death of' Betts they continued to live with the widow upon the-premises. The bill in this cause was filed by Frank Torpy, who claims to be remainder-man in fee, to restrain waste, and to obtain a construction of the will. The-defendants claim, under an answer in the nature of across-bill, that the provision of the will that gives the fee to the complainant on the termination of the life estate is void under the statute which prohibits the suspension of the power of alienation for a longer period than the continuance of two lives in being at the creation of the estate’. See 3 Comp. Laws 1897, §§ 8796, 8797.

If we were to hold, as contended by the defendants, that the condition requiring Frank Torpy to pay $500 to Grace is a condition precedent, the remainder does not vest in any one until the termination of the life estate. This is the necessary conclusion from the case of L’Etourneau v. H'enquenet, 89 Mich. 428 (50 N. W. 1077, 28 Am. St. Rep. 310). In that case it was said that the termination of such a remainder (i. e., a vested remainder) by death of the holder created a contingent remainder in the- surviving children designated in the will, and the heirs of any deceased child, and that such contingent remainder “ could not vest until the termination of the life estate, because until then it could not he known who would be entitled to it as heirs or survivors.” In the present case there is no way of knowing who is to be entitled to the remainder in fee until the widow shall die.. Upon the termination of the life estate, the suspension of the power of alienation would at once end, because, if Grace or her issue should -survive, it would be in the power of Frank Torpy or his surviving issue to vest the estate by payment, or an absolute conveyance could be made :by- a deed in which all parties interested should join. There are many cases cited in complainant’s brief supporting the rulé that the statute does not apply when, under the terms of the instrument, it is certain that a title can be conveyed by the joint action of parties interested. Thus, in Murphy v. Whitney, 140 N. Y. 541 (35 N. E. 930, 24 L. R. A. 123), where several brothers and sisters had entered into an agreement to hold land for their joint use, the share of each dying to vest in the survivors, and on the death of the last the whole to go to the son of one brother, it was held that this agreement did not create a perpetuity, because the survivors, with such son, could convey a perfect title at any time; the court using, the following language:

“"The absolute power of alienation is not suspended, because there were at all times persons in being who could convey an absolute fee in possession. All the brothers and sisters, uniting with the plaintiff, could at any time have conveyed a perfect, indefeasible title to the real estate.”

In Sawyer v. Cubby, 146 N. Y. 192 (40 N. E. 869), the following is found:

‘ ‘ The statutory test of what constitutes a suspension of the power of alienation as to real estate, and of absolute ownership as to-personal property, is that it occurs only when there are no persons in being by whom an absolute estate in possession can be conveyed. Tried by that test, I think we shall find that there never was a moment after the death of the testatrix when a good title in present possession might not have been given to the legacy, and the property covered by it, save only during the continuance of the trust created by the sixth clause. Certainly the interest of Cubby, although future and contingent, vested as a right, and so was not inalienable by him; for, even in the case of land, expectant estates, which include those which are future and contingent, are declared by the statute to be descendible, devisable, and alienable, in the same manner as estates in possession.”

In 18 Am. & Eng. Enc. Law, on page 377, the author says:

“The statute declares that it [suspension of power of alienation] exists when there are no persons in being by whom an absolute fee in possession can be conveyed. It is clear that, in itself, this permits all dispositions of succeeding life estates, however numerous, with contingent limitations over which may not vest until beyond even the period of the English rule, provided the limitations are to persons in being. * * * In fact, it is an accurate summary of the whole to say that, leaving out of consideration the clause against successive life estates, there are but two modes in which the absolute power of alienation can be suspended, viz., by an express trust, or power in trust, of such a character that the land cannot be alienated during its continuance, or by a contingent limitation.”

Our own cases are in harmony with this doctrine. Thatcher v. St. Andrew’s Church, 37 Mich. 264; Case v. Green, 78 Mich. 540 (44 N. W. 578); State v. Holmes, 115 Mich. 456 (73 N. W. 548).

In Case v. Green, William Case leased to Hiram and Rebecca Case for their lives, and after death to their son, Adelbert Case, for life. Here were clearly three persons holding life estates, but the instrument was held valid because an absolute fee might be conveyed by the action of all in conjunction with the owner of the reversion.

The provision of the will should in such case (i. e., if the condition be precedent) be considered to be one creating several future estates, to take effect in the alternative, as permitted by 3 Comp. Laws 1897, § 8807. It matters not whether the estate may ultimately vest in one unborn at the time of the creation of the estate, for the existence or nonexistence of such a person has no effect upon the suspension of alienation, which must surely terminate upon the death of the life tenant. Hers is the life selected to measure the period of suspension, and the testator had the right to make such selection. See Crooke v. County of Kings, 97 N. Y. 421; Bailey v. Bailey, Id. 460; Chapl. Susp. Alien. §§ 222, 227, 230.

If it be contended that a remainder cannot be devised to one not in esse at the time of the creation of the estates, an answer is found in section 8810, which clearly recognizes it. Moreover, if an estate,must go to persons in esse, the power of alienation would never be suspended, as, by joining, the owners of the various estates could always convey the fee. In 2 Washb. Real Prop. (5th Ed.) 797, it is said that a remainder in fee after the expiration of two lives in being at the testator’s death may be created in favor of one not in being at that time, and a second limitation may be good to one not in being, who may be living at the death of the first remainder-man, if such remainder-man die under the age of 21; citing Manice v. Manice, 43 N. Y. 303. See, also, Gray, Perp. § 294; also, §§ 164, 170, 392, 393. In Gulliver v. Wickett, 1 Wils. 105, it is said, “The number of contingencies are not material, if they are all to happen within a life in being,” etc Chapl. Susp. Alien. § 230; Crooke v. County of Kings, supra.

We think it clear that the will is not invalid as in violation of the statute against perpetuities. As counsel agree-that this is the only question before us, we have no occasion to discuss other questions that might otherwise be-in volved.

The decree is affirmed, with costs.

The other Justices concurred.