text:
      In re SEARCHILL ESTATE. FULCO v. ELDRED.
    1. Wills —Admission to Probate.
    Befusal to probate will drawn by suggestion and under direction of one taking under it, who redrafted it leaving only himself, Ms brother, and his sister as beneficiaries, who gathered and took the witnesses of the will to the hospital where it was executed by testator, and who had possession of the will from the date of execution until the time of filing for probate, held, proper, the verdict being clearly supported by the evidence.
    2. Same — Competency op Testator — Evidence'—Nurses’ Notes — • Hospital Becords.
    Nurses’ notes, including observations and notations about mental condition of testator, which were vitally significant to physicians in treating testator’s illness and which were part of hospital record, were properly admitted in will contest in which one of the issues was the competency of the testator to make the will.
    3. Evidence — Becords Made in Begular Course op Business — Hospitals.
    Hospital records made in the regular course of hospital business which are made at or near the time of the act, transaction, occurrence, condition, or event recorded are admissible into evidence under the business records act (CLS 1961, § 600-.2146).
    Beperenoes por. Points in Headnotes
    [1] 57 Am Jur, Wills §§ 435, 436, 944.
    [2] 57 Am Jur, Wills § 127.
    [3,4] 26 Am Jur, Hospitals and Asylums §6: 57 Am Jur, Wills §127.
    [5] 57 Am Jur, Wills § 128.
    | 6] 58 Am Jur, Witnesses § 734.
    [7] 53 Am Jur, Trial § 494.

      4. Same — Hospital Records — Treating Physician.
    Testimony of doctor, whose opinion is based in part on the hospital records, is admissible in evidence in will contest on issue of testator’s competency since the notations made by nurses in the hospital record and the laboratory reports in the records are important to the treating doctor’s analysis of the data and his treatment.
    5. Wills' — Competency op Testator — Lay Persons.
    Testimony of lay witnesses on question of incompeteney of testator is proper where a foundation is laid and an opportunity is given for cross-examination, thus making available to the jury the observations upon whieh the opinions were based.
    6. Witnesses — Credibility—Commission op a Crime.
    Commission of a crime may be shown for purpose of affecting the credibility of a witness (CLS 1961, § 600.2159).
    7. Same — Reading op Perjury Statute.
    The reading of the perjury statute to all of the witnesses at a time when the proponent of a will was on the stand but before he testified to most of the material matters in the case and before there was any discrepancy in his testimony held, not improper.
    Appeal from Bay; Dardas (Leon R.), J.
    Submitted Division 3 November 7, 1967, at Grand Rapids.
    (Docket No. 3,081.)
    Decided March 20, 1968.
    Petition by James Fnlco for admission to probate of a will of Joseph Searchill dated December 16, 1963. Clifford Eldred contested. Verdict for contestant. Motion by James Fulco for judgment notwithstanding the verdict, or in the alternative for a new trial, was denied.
    Affirmed.

      Bernard 8. Frasik and Joseph J. Favasm, for plaintiff.

      Milton E. Higgs, for defendant,
   Holbrook, J.

Appellant, James Fulco, is the proponent of a purported will of one Joseph Sear-chill dated December 16, 1963. Appellee, Clifford Eldred, a legatee under a prior will, contested the admission of the will in question to probate on 3 grounds: (1) The will was not lawfully executed, (2) the testator lacked mental competency, and (3) the will was induced by fraud and undue influence. The jury found against the purported will on returning a verdict for the contestant. Following the trial court’s denial of his motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, the proponent of the will has appealed to this Court.

The position of the proponent for the purported will is the same in this Court as presented to the trial court upon his motion for judgment notwithstanding the verdict, or in the alternative, for new trial. 2345678After careful review of the record, we find that the trial judge in his written opinion denying proponent’s motion adequately set forth the facts and properly met all of the issues raised by the proponent of the will. We adopt his opinion as our own and quote from it as follows:

“Many of the facts in the case are not disputed. Joseph Searchill was admitted to the Veterans Hospital in Saginaw, Michigan, on November 28, 1963, and died on January 20, 1964. While a patient in the hospital he attached his mark to the instrument in question, allegedly his last will and testament, which purported to leave all his property in three equal shares, to wit; Ealph Fulco, James Fuleo, and Eose Eedivo. James Fuleo, the proponent, testified that on the 11th or 12th of December, 1963, while Mr. Searchill was a patient in the hospital, he told him to go and see Joe Favazza and draw, a will (p 249 of transcript). The will was to be made out for Mr. Fulco, his brother and sister, and for Mr. Sear-chill’s brothers and sister who lived in Italy. It was conceded that whatever Mr. Favazza did, he did under the direction of James Fulco and not under the [immediate] direction of Mr. Searchill. That first instrument drafted by Mr. Favazza was taken by Mr. Fulco back to the hospital and read to Mr. Searchill. The transcript at p 257 charges that only Mr. Fulco and Mr. Searchill were present when that first instrument was read to Mr. Searchill and the only record of that conversation comes from Mr. Fulco’s tesitmony. Mr. Fulco testified that the deceased told him to take it back and leave his brothers and sister out of the will, and simply to include the two Fulcos and Eose Eedivo. Mr. Fulco then testified that he took it to the Eepublie Hotel to a public stenographer because Mr. Favazza was busy. He then had the instrument redrafted leaving out Mr. Searchill’s brothers and sister in Italy, That instrument was typed out under the direction of James Fuleo. There is no representation that the stenographer ever talked to Mr. Searchill. Whatever was contained in the instrument was there because James Fulco directed the stenographer to put it in and that same holds true of anything which was left out. This instrument was the one which was ultimately produced and offered as the last will and testament of Joseph Searchill. James Fulco gathered the witnesses and took them to the Veterans Hospital, where it alleged the instrument was executed by the mark of the testator on Monday, December 16, 1963. The date on the will which originally was inserted was crossed off and December written in. Testimony further indicates that the first date inserted was 15, and that 16 was written over the top of the 15. It appears that three witnesses attested to the mark and were available to testify in court, although only two were in fact called. The attorney who drafted the original instrument before it was redrafted in its final form never talked with the deceased before or after the event with regard to any of the subject matter involved. James Pulco admitted in his testimony at p 263 that the doctor told him that Mr. Searchill was ‘quite bad’ at the time. Prior to this time, James Pulco did not cash any checks for the deceased, paid no bills for him, and did not represent he did any business, for him. The testimony shows that the deceased had his hands in restraints [Posey mittens] on December 16th [and his body movement was restrained] by a device known as a locked Posey belt. James Pulco did not call a nurse, but simply removed one of the mitts from the hand of the deceased and placed a pen in it. James Pulco then testified that after he read the instrument to Mr. Searchill, Mr. Searchill said he couldn’t take it with him and that he had some taxes to pay and that he might as well sign it.
“On cross-examination of James Pulco, he did not deny that at the time of the pretrial deposition he said that he suggested Joseph Favazza as the lawyer to make out the will and that the suggestion was not made by Mr. Searchill. Attorney Favazza had done other legal work for James Pulco. Mr. Sear-chill never discussed with James Pulco that he had consulted a lawyer at a prior time, at which time a will for him had been drafted. Mr. Maiola and James Pulco testified that they scratched out the word ‘November.’ Pulco, under cross-examination, admitted that the 16th appearing on the purported will could also he read as 15. James Fulco produced the will and it was filed in the prohate court for Bay county along with a petition for prohate of it on the same day that Mr. Searchill died. Despite the fact that James Fulco was the executor named in that will, he allowed Clifford Eldred, the contestant, to proceed with the funeral arrangements for the deceased. On cross-examination, James Fulco conceded that he forgot, at the time of giving his deposition, to tell about the first instrument that was prepared and which Mr. Searchill did not sign. The instrument here in question which was offered for probate by Janies Fulco was in his possession from the time it was executed until the time he took it to Mr. Favazza on the day of Mr. Searchill’s death and its filing in the probate court with his petition.
“In his motion the proponent complains that the verdict of the jury is contrary to law and facts and is not supported by the evidence. Insofar as the verdict being supported by the evidence is concerned, the court is of the opinion that the verdict was well within and amply supported by the proofs. The court must further state that had it been submitted for the court’s decision it would have reached the same conclusion under the proofs as presented.
“In addition to lay witnesses the contestant produced the testimony of two medical doctors, one of whom had examined the deceased and referred him to the Veterans Hospital for admittance at the onset of his terminal illness and a second who had the deceased under his care continuously from that time forward until his death at the Veterans Hospital.
“Proponent assigns as error the ruling of the court in admitting the hospital record and especially that portion including the nurses notes. For clarification, it should be noted that the offer of the hospital records included only the medical portion as opposed to the administrative portion of the records. Actually, although the entire medical portion was read in evidence, the entire exhibit was not read to the jury and particularly certain information given Dr. Dowidat by relatives was excluded, as not in the scope of the offer and its receipt in evidence, at least in its presentation. The foundation laid for the admission of the hospital records included the testimony of Jerome Bray whose employment at the Veterans Hospital included supervision of the medical records, librarians, and the clerks who do the actual filing. His function adequately qualifies him as custodian of the records. He identified the records offered as that of the patient and testified, with knowledge, as to the method of preparing the record, timeliness, regularity and accuracy. It was established through him that these entries were made in the regular course of the hospital business to make these records at or near the time of the act, transaction, occurrence, condition or event recorded. He further testified with regard to the medical portion of the records, including the nurses’ notes, that the doctor uses the records in the course of the treatment of the patient; and, in fact, makes decisions of life and death based on the accuracy of the records.
“The treating doctor at the hospital, Dr. Dowidat, testified that the nurses’ notes and the observations recorded were all made and initialed by registered nurses in whom he had the utmost confidence insofar as their ability and training are concerned. He further testified that these nurses and observations Avere of vital importance to him for the purpose of aiding and assisting him to make decisions regarding the care and treatment of a patient Avho was suffering from acute cirrhosis of the liver.
“The foundation laid in the admittance of the medical portion of the hospital records, including the nurses’ notes, was well within the principles laid down in Case v. Vearrindy (1954), 339 Mich 579; and Bauer v. Veith (1964), 374 Mich 1. The testimony of Mr. Bray and Dr. Dowidat Avas further fortified by the testimony of Dr. Kulinski, specialist in internal medicine, who testified that the observations and notations of the nnrses with regard to the mental condition of the patient were vitally significant from a medical standpoint considering the nature of the patient’s illness. He testified that in cases involving ‘Laennec’s’ cirrhosis he is particularly concerned about mental confusion as an early indication of the worsening of the patient’s condition. In his testimony he related the mental confusion to the level of blood ammonia which appears in the laboratory reports demonstrating that there was a progressive deterioration of the patient’s condition. There were approximately 15 nurses associated with the treatment of Mr. Searchill, together with numerous laboratory and X-ray technicians, and to require that each of these persons be called to testify in cases of this kind would not serve any useful purpose. In the opinion of the court it is doubtful that their recollection would be any better than their recorded statements, because of the number of people that are handled in the normal course of hospital routine. Furthermore, there are few records, the accuracy of which are more significant than hospital records, because of the nature of the decisions that are made based upon their accuracy. Those who are charged with making these records are well aware of that fact. The court sees no reason to change its ruling in allowing these records to be received in evidence under the provision of the business records act and is further of the opinion that there was no error in admitting them.
“Insofar as the testimony of Hr. Kulinski is concerned, it would appear that the proponent objects on the ground that Dr. Kulinski’s opinion was based purely on the hospital records. Actually the proofs show that Dr. Kulinski examined the deceased on November 27, 1963 at his home and 1 or 2 hours prior to his admittance to the Veterans Hospial at 12:45 a.m. on November 28, 1963. Dr. Kulinski was shown to be eminently qualified in the field of internal medicine and is in fact certified by the American Board of Internal Medicine. The doctor testified that Mr. Searchill’s health and physical condition fell within the scope of his specialized practice of medicine. He testified as to the significance of the laboratory data and of the administration of drugs appearing in the hospital records. He further testified as to the extreme importance of the nurses’ notes to the treating physician and their significance. He explained their significance by relating them to the blood ammonia which appeared in the laboratory reports finding the necessary observations to be consistent with the laboratory reports. With the foundation laid in regard to his connection with the case, his treatment and observations and his analysis of the pertinent data, there could be no question but that the court would have been in error had it excluded the doctor’s testimony.
“As to the testimony of lay witnesses on the question of incompetency, both proponent and contestant offered lay witnesses; in each case before admitting their testimony a foundation was laid to the satisfaction of the court. * * * In each case ample opportunity for cross-examination was offered each side so that the jury would have available to them the observations upon which any opinions were based.
“With regard to the question of proper execution of the will according to the statute being submitted to the jury as well as the question of submitting the presumption of undue influence, the court finds no error. * * *
“With regard to the question of admitting evidence of defendant’s commission of a crime many years ago, it is the position of the court that conviction of a crime may be shown for the purpose of affecting the credibility of the witness under CLS 1961, § 600.2159 (Stat Ann 1962 Rev §27A.2159). The court finds no area of discretion in the matter of the question, but if there were would take the position that there was no abuse of discretion in the instant case. Proponent was offered ample scope of examination to explain the remoteness in time and other circumstances which counsel for proponent did bring forth and which may well have influenced the jury favorably as to credibility.
“With regard to the question of reading the perjury statute, it should be noted that the statute was not read to Mr. Fulco alone, but to all witnesses that were in the courtroom. The court stated (p 250):
“ ‘In order to clarify the whole thing, I think enough witnesses are here and because it did come up, I will read the perjury statute for everybody. We will get it clear for everybody. Anybody who has been a witness in this matter, taken an oath or about to take an oath, there is a law in the State of Michigan which defines the crime of perjury.’ The court went on to read the statute, explained it and stated, ‘this is for the benefit of all witnesses who are at present in the courtroom and for the benefit of the witness on the stand.’
“It should be noted at the time that Mr. Fulco testified and at the time the perjury statute was read was at a time before he had testified as to most of the material matters in the case. The court fails to see that at the time this occurred there was any prejudice to him or anyone else. At the time the court had no discrepancy in testimony before it given by Mr. Fulco and such discrepancies that did occur in his testimony occurred at a later time. It may very well be that the discrepancy between his testimony in court and his testimony at the time he gave his discovery deposition was the result of the serious consideration given by him to that statute. It seems to the court that a jury would likely believe a man’s testimony or place more weight upon it with knowledge that he is aware of the serious consequences of not telling the truth than if he were not aware of it. Counsel for proponent attempts to tie in the reading of the statute with the questions regarding his criminal record.
“The record discloses as a matter of fact the reading of the statute occurred on. Thursday, January 20, at p 250 of the transcript, while the matter of bringing forth his criminal record did not occur until Friday, January 21 at p 303 of the transcript. The court cannot say that counsel for the contestant was not attempting to influence the jury, but does find that he was within hounds and that in any event the two matters were not closely enough related to have any impact standing together. Furthermore, it is the opinion and judgment of this court that neither the reading of the statute nor the remote criminal record, considered separately or considered together, would have had such an impact as to have changed the verdict.”

Affirmed. Costs to contestant-appellee.

Lesinski, C. J., and Burns, J., concurred.

       The following questions have been put to this Court by the proponent:
      (1) Did the trial eourt err in denying proponent’s motion for a directed verdiet?
      (2) Was the verdiet of the jury supported by the law applicable?
      (3) Was the verdiet of the jury supported by the evidence?
      (4) Did the trial court err in admitting in its entirety the hospital records?
      (5) Did the trial court err in admitting the testimony of lay witnesses on the question of incompeteney without proper foundation therefor?
      (6) Did the trial eourt err in admitting the testimony of E. J. Kulinslri, M.D., expressing an expert opinion as to the testator’s incompeteney?
      (7) Did the trial court abuse its discretion in admitting evidence of proponent’s commission of a crime some 33 years previously?
      (8) Did the trial eourt err in reading the perjury statute to the proponent while on the witness stand and in the presence of the jury?

       CLS 1961, § 600.2146 (Stat Ann 1962 Rev § 27A.2146).

       Dr. Dowidat testified that in his treatment of Mr. SearcMU, hie personally visited the patient eaeh day while he was hospitalized. He also testified as to his reliance on the nurses1 notes in the hospital records and that he checked directly with the nurses concerning their notes.

       According to the transcript, proponent Fulco was the one who was questioned concerning a crime committed many years ago. See last paragraph of quoted opinion,


source: Caselaw Access Project

author: Holbrook, J.

license: Public Domain

text:
      In re CHARLTON ESTATE. SMACY v. BARRY COUNTY.
    1. Wills — Construction—Intent.
    The cardinal rule of construction of a will is to give effect to the intention of the testator if the intention was expressed.
    2. Same — Construction—Presumption Asainst Intestacy.
    There is a strong presumption against intestacy when a will is being construed.
    3. Same — Avoidance of Intestacy.
    No part of a testator’s estate should be.treated as intestate if intestacy can reasonably be avoided.

      4. Same — Power of Sale.
    Provision in will giving power of sale of interests in real estate held, hot to provide for equitable conversion of real estate into money which vests in the heirs at law when the power of sale was given for the benefit of the beneficiary and the convenience of the executor “in order to avoid confusion and make distribution to my benefieiary more easily accomplished.”
    5. Same — Construction—-Perpetuation of Museum.
    Central purpose of testator to protect and perpetuate museum he had founded, so that the people of the benefieiary county might have the benefit, stood out as his intention to be effectuated in construing his will.
    References for Points in Headnotes
    [1, 5] 57 Am Jur, Wills § 1133.
    [2, 3] 57 Am Jur, Wills §§ 1157, 1158.
    •[4] 41 Am Jur, Powers §§ 8, 10, 27.
    [6] 57 Am Jur, Wills § 1137.
    [7] 57 Am Jur, Wills §§ 1129, 1136, 1146, 1415-1417.

      6. Same — Construction — Intent — Particular Parts •— Consider Will as a Whole.
    Courts must consider the win as a whole, including its general scope, logical implications, and necessary inferences, when construing the will or interpreting particular words, parts, or provisions and in determining testator’s intent in relation to them.
    7. Same — Construction—Proceeds op Estate — Museum.
    Provision in will that “it is my will that the proceeds of my estate be used for a stone building addition to the present museum” is construed to be a residuary elause giving to beneficiary county, owner of museum, that part of the estate not specifically disposed of in prior clauses, and not as a elause disposing of property already disposed of in the will thus leaving a residue to pass through intestacy to the heirs at law.
    Appeal from Barry; McIntyre (Robert W.), J., presiding.
    Submitted Division 3 November 8, 1967, at Grand Rapids.
    (Docket No. 3,428.)
    Decided March 20, 1967.
    Leave to appeal denied May 22, 1968.
    See 381 Mich 752.
    James H. Conner, executor of the will of Irving D. Charlton, deceased, petitioned for construction of a will and distribution of the residue. Will construed to give residue of estate to Barry county. Zeda Smacy, heir at law, appeals.
    Affirmed.

      FI. Donald Bruce, for appellant.

      Laurence E. Barnett, for executor.

      Richard M. Bauer, Prosecuting Attorney, for Barry county.

      Paul E. Siegel, for Board of Road Commissioners of Barry county.
   Holbrook, J.

This action involves the construction of the last will of Irving D. Charlton, dated July 12, 1961, and admitted to prohate September 30, 1964. The Honorable John "W. Conlin, acting judge of probate for Barry county, after a hearing, ruled that all of the residue in the estate was properly willed to Barry county, and an appropriate order was entered to this effect July 28, 1965. Zeda Smacy, one of 12 cousins, an heir at law, appealed to the circuit court for Barry county. The matter was submitted on the record together with briefs followed by oral argument. The Honorable Robert W. McIntyre, circuit judge, affirmed the order of Judge Conlin and remanded the matter to the probate court for further administration as provided by law. Zeda Smacy has appealed to this Court and raises one question for review which we state as follows: Can the will of Irving D. Charlton be properly construed so as to leave his entire estate to Barry county?

The background of this case as submitted to the trial court was as follows: Irving D. Charlton died on June 12, 1963, at the age of 80 years. He was a resident of Barry county. He had received a college education in civil engineering about 60 years ago and had practiced his profession with success and accomplishment until he retired about 1936. He had been a college professor and in later years was a consultant on engineering matters throughout the United States and Canada. After retirement, he returned to his former home and developed a museum of historical items and articles used by the early pioneers, including such items as steam engines and farm equipment used by the early settlers. He deeded a farm to Barry county and collected these items on this land. It was located on the Thornapple river and had historical significance as a gathering place for the Indian population before the white man came. He initiated gatherings of the Indians and also put on steam engine rodeos. It is claimed that the area as a public park and place of entertainment had as many as 50,000 visitors a year.

He married in middle life, his marriage ended in divorce, and thereafter he had a very antisocial attitude toward women. He operated the Charlton Museum on an arrangement with Barry county that provided for his being the manager, maintenance being a matter of agreement between himself and the county.

The pertinent provisions of Irving D. Charlton’s will are as follows :

“Second, I give and bequeath to the county of Barry, for the use, benefit, instruction and enjoyment of its citizens and of the public at large, my entire collection of museum pieces, articles and items, without reservation or exception, which I have secured over many years and which are now contained in the Barry County Memorial Museum, or elsewhere, and whether the same are labelled, catalogued or otherwise identified. * * * Their value will be clearly established by competent appraisers and will exceed $500,000.00. The items I have purchased and hereby bequeath to the county of Barry constitute a large portion of this value. I mention these facts to emphasize the necessity for an adequate enlargement of the museum to secure the safekeeping of the more valuable items and to point out the wisdom of obtaining sufficient insurance.
“Third, at the date hereof, I am the owner of Pleasant Shores Plat in Castleton township, of Irving Charlton Plat in Hastings township, of ten acres on Center road not far from Charlton Park, and mineral rights to a tract of land near Laramie, Wyoming. Approximately $44,000 is now outstanding and payable under the terms of several land contracts for the purchase of lots and about 145 lots remain, unsold. I give, devise and bequeath unto the county of Barry (subject to the power of sale and directives addressed to my executor, contained in the following paragraph) all of my right, title and interest in and to the real estate above mentioned and of which I die seized, both sold on deferred payments and unsold, hereby assigning and transferring all of my rights or interests therein to said beneficiary, subject, of course, to the terms and provisions of any uncompleted land contract.
“Fourth, I hereby create a power of sale, authorizing, empowering and directing my executor to forthwith, and as rapidly as possible, to sell and dispose of all my unsold real estate at the best market value obtainable and to compromise, reasonably discount or urge and accomplish the settlement in cash of as many of the outstanding land contracts, as possible, with full authority to execute and deliver good and sufficient executor’s deeds in completion of said contracts, said power of sale as to unsold real estate to extend to the making of further contracts for deferred payments if he so decides and to execute all papers and instruments necessary or incident to the sale and disposal of my real estate, or equity therein, without reference or permission of the probate court. I request a delay in the usual closing period of my estate if it will appear to materially assist my executor in reducing my real estate interests to cash in order to avoid confusion and make distribution to my beneficiary more easily accomplished.
“Fifth, I strongly urge my executor to consult with Austin Schantz and my other good friends and interested members of the board of supervisors and especially with the members of the Barry county road commission. I appoint Laurence E. Barnett, my long-time friend and legal advisor, as attorney for my estate if he is still available, knowing that he is aware of my wishes and plans.
“Sixth, it is my will and sincere hope that the proceeds of my estate be used for a stonebuilding addition (or one of equally substantial construction) to the present museum building, similar in design and with a floor area not less than 10,000 square feet, with its rear northwesterly corner adjacent to the rear southeasterly corner of the present building, and extending in an easterly direction, parallel to the line of the present roadway. It should be connected to the present building by a tunnel so that it might be kept closed and secure except for emergency exits.”

Appellant asserts that clause 2 of the will gave the museum pieces to the county of Barry without reservation. However, she claims that the devise of interests in real estate mentioned in clause 3 of the will was subject to a power of sale which provided for equitable conversion of the real estate into money which vested in the heirs at law (CL 1948, § 702.1 [Stat Ann 1962 Rev § 27.3178(71)]; CL 1948, § 702.4 [Stat Ann 1962 Rev § 27.3178(74)]) together with other assets not specifically mentioned in the will, subject only to providing funds for the museum addition described in clause 6 of testator’s will.

The cardinal rule of construction of a will is to give effect to the intention of the testator if the intention was expressed. Love v. Sullivan (1966), 5 Mich App 201; In re McKay Estate (1959), 357 Mich 447; Cleveland v. Second National Bank & Trust Company (1958), 354 Mich 202; Detroit Wabeek Bank & Trust Company v. City of Adrian (1957), 349 Mich 136; In re Lawton Estate (1956), 347 Mich 143; In re Darmstaetter’s Estate (1940), 293 Mich 596. The courts also recognize a strong presumption against intestacy when a will is being construed. In re McKay Estate, supra; In re Chapple’s Estate (1953), 338 Mich 246; Foster v. Stevens (1906), 146 Mich 131; Mann v. Hyde (1888), 71 Mich 278. Under Michigan law, no part of a testator’s estate should be treated as intestate if intestacy can reasonably be avoided. Detroit Trust Co. v. Stoepel (1945), 312 Mich 172. The third clause gave, devised and bequeathed land sold on contract and the land unsold to Barry county (subject only to power of sale in clause 4 for benefit of Barry county and convenience of executor). This clause is sufficiently adequate to cover a vendor’s interest as well as equitable interests in land.

“Since, under a valid contract to purchase land, the vendee is, in equity, the real owner, and the purchase money is treated as a mere encumbrance on the land, as appears in Vendor and Purchaser § 106, this equitable interest which the purchaser has may be devised. So, also, the vendor in a contract of sale, or an option to sell, may devise his interest, and the devisee will take the land subject to the same obligation as the testator, the right of the owner of the equitable title to the land not being affected by the vendor’s will. * * *
“The unpaid portion of the purchase price for land deeded to another may be disposed of by the grantor by will.” 94 CJS, Wills, § 81, p 788. (Footnotes omitted.)

The fourth clause gave a power of sale to the executor to dispose of the real estate or equity therein of the testator “in order to avoid confusion and make distribution to my beneficiary more easily accomplished.” (Emphasis supplied.) We do not read this provision in the will as providing for an equitable conversion of the real estate, defeating the devise contained in clause 3. Because of the need to effect the intent of the testator, we read it as consonant with clause 3 and inserted for the benefit of the beneficiary, Barry county.

We now come to the controversial clause 6 of the will. The pertinent words of this clause as we view them are as follows:

“It is my will * * * that the proceeds of my estate be used [by Barry county] for a stonebuilding addi tion (or one of eqtially substantial construction) to the present museum building * * * with a floor area not less than 10,000 square feet [importance of which is emphasized in clause 2].” (Emphasis and references supplied.)

Unless this clause disposes of property not otherwise specifically named in the will, such property would pass intestate to the heirs at law.

The instant will was obviously in the words and language of the testator, although “drafted” by his attorney. The case of In re McKay Estate (1959), 357 Mich 447, construed the precatory words of the testator, “I request.” A part of the will read as follows: (p449)

“I request # * * that the (Little Sisters of the Poor Share in my estate With (St. Christper Inn of G-raymor N. York.) And (Maryan hill Fathers of Ann Abor trail a mission to be used to edcate Navities priest.”

These words in the will were termed mandatory in considering the will as a whole. Mr. Justice Edwards stated in part on p 452 of the opinion as follows :

“As td the last of the questions posed, again taking the will as a whole, we have little difficulty holding that the intention of the testatrix was to leave the residue of her estate to the 3 charities, share and share alike. We find the residuary feature in the general nature of the clause ‘share in my estate,’ when compared to the specific quality of all the other devises.”

In determining the testator’s intentions from the 4 corners of the instrument, we are convinced of his one central purpose, i. e., to protect and perpetuate the museum that he founded including the many artifacts he had acquired down through years of dedicated search. This he desired to do above everything else so that the people of Barry county might have the benefit. The avenue he selected for the accomplishment of this purpose was Barry county and its officers who had worked with him to advance his cherished goal. That his museum was a success is not questioned. Thousands of citizens each year visited the museum and appreciated seeing* the history of the past by viewing the many items used by the early settlers in our State. This service to mankind was not profit motivated for a good share of his earthly belongings were utilized to make the museum possible, including the gift of the farm on which the museum is located to Barry county. Mr. Charlton was a frugal man in all other characteristics of his daily life. The trial judge in his opinion stated in part as follows:

“Irving D. Charlton died testate June 12, 1963, being 80 years of age at the time. He had lived in Barry county, Michigan most of his life. He was a college graduate, skilled in the art of civil engineering, but devoted very little of his life to the actual practice of this art. Although married for a brief period of time and during World War I, following a divorce he never sought a family life thereafter but became rather a recluse pursuing as his hobby the collection of artifacts concerning* the Indian life in Barry county, and the history of the development and enlargement of the pursuits of the county. He lived a severely economic life, dressed in tattered clothing, drove an ancient car, and devoted very little of his extensive wealth to his own personal pleasures pursuits. * * *
“Although this paragraph 6 may not technically fit the requirements of a residuary clause, it is as close as a layman dictating a will could possibly come to it.
“It is the judgment of this court that when Mr. Charlton used the words, ‘the proceeds of my estate,’ he meant the rest, residue and remainder of my estate. Admittedly, paragraph 6 does not name his beneficiary; however, the earlier wording of the will indicates that the addition to the museum would be for the uses and purposes of the people of the county of Barry. Further, the use of the word ‘beneficiary’ in its singular sense throughout the instrument betrays no other intent and no other construction is conceivably possible looking at the instrument from all four corners.”

In 95 CJS, "Wills, § 620, pp 850-859, it is said in part:

“In construing a will or interpreting the meaning of particular words, parts, or provisions of a will, and in determining the intention of the testator in relation thereto, the courts must consider the will as a whole, including its general scope, logical implications, and necessary inferences.”

In construing the will of Mr. Charlton as a whole to effect his intentions, we come to the conclusion that he had a general plan, i.e., the preservation of the artifacts that made up his museum; enlarging the museum and perpetuating the same for the benefit of the citizens of Barry county. The only beneficiary named in the will was Barry county and there can be no doubt that the general testamentary plan can only be effectuated provided clause 6 is construed as a residuary clause giving to Barry county that part of his estate not specifically disposed of in the first 5 clauses, for the express purpose of enlarging the museum as directed. In re Jones Estate (1959), 358 Mich 85; In re McKay Estate, supra; Union Trust Co. v. Fisher (1927) 240 Mich 68.

We conclude the construction of the will as determined by the probate court and the circuit court was proper.

Affirmed. Costs to appellees.

Lesinski, C. J., and Burns, J., concurred.

       “(1) If general testamentary plan appears from reading of will as a whole, such plan ordinarily offers a valuable aid in construction of language used. Bankers Trust Co. v. Pearson (1953), 140 Conn 332 (99 A2d 224).
      “(2) A will is to be examined with a view toward discovering decedent’s testamentary scheme or general intention, and meaning of particular words, phrases, and provisions shall be subordinated to such seheme, plan, or dominant purpose. In re Eggleston’s Estate (1954), 129 Cal App 2d 601 (277 P2d 469) ; In re Raymond’s Estate (1950), 96 Cal App 2d 808 (216 P2d 515),


text:
    PEOPLE v. LANG.
    Criminal Law — Breaking and Entering — Consequence op Plea op Guilty.
    Informing defendant aeensed of breaking and entering a store building with intent to commit larceny of the nature of the accusation and the consequences of his plea before he was required to plead rather than after held, to be a substantial compliance with court rule regulating acceptance of plea, where the information was read and defendant informed of the nature of the accusation and the possible sentence, and where after pleading guilty he was examined by the court to establish the essential elements of the crime charged, defendant’s participation, and the voluntariness of his plea, and any arguable departure from the procedure required by striet construction of the rule did not result in less than substantial justice (CL 1948, § 750.110, as amended by PA 1964, No 133; GCR 1963, 529.1, 785.3 [2]).
    References por Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 486, 487.
    Appeal from Kent; Hoffius (Stuart), J.
    Submitted Division 3 November 9, 1967, at Grand Bapids.
    (Docket No. 3,462.)
    Decided March 20, 1968.
    Leonard Lang was convicted of breaking and entering with intent to commit larceny. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James K. Miller, Prosecuting Attorney, for the people.

      William J. Ileyns, for defendant.
   Holbrook, J.

Defendant was charged in an information with breaking and entering on December 12, 1966, a store building with intent to commit the crime of larceny therein. On December 16, 1966, at arraignment, the information was read to defendant and he was informed of the nature of the accusation and that the felony charged was punishable up to 10 years in prison. Defendant pleaded guilty and was examined by the court in order to establish the essential elements of the crime charged, defendant’s participation therein and the voluntariness of his plea. On January 27, 1967, defendant was sentenced to prison for a term of 2 to 10 years.

Defendant appeals from the trial court’s denial of his motion to set aside his plea of guilty on the ground that the court failed to comply with GOB 1963, 785.3(2). Defendant seeks to have his plea of guilty set aside and the .sentence vacated on the asserted basis that GOB 1963, 785.3(2) requires a trial court to inform the defendant of the nature of the accusation and the consequence of his plea after, rather than before, the guilty plea is made and before sentence is imposed.

'Defendant cites People v. Goldfarb (1967)] 6 Mich App 7, as applicable to the instant case. The trial judge properly pointed out in his opinion denying defendant’s motion to set aside his plea of guilty that the present case could he distinguished from Goldfarb:

■ “There is nóthing in the record which would indicate that he [Goldfarb] understood the charge. The information was not read to him, and he was only asked if he wished to plead guilty to possession of burglary -tools apd he said he did. He [Goldfarb] was .then questioned as to the voluntariness of this and the, Court found that this trial judge had failed to make sure- that he [Goldfarb] understood the charge and that the [trial] court made-no investigation as to the accuracy. On p 14 of that opinion the Court concluded:
“ Tp our case the defendant, was never asked whether he understood the charge and the court made no investigation as to the accuracy.’ * * *
“In the instant case it is clear that he was advised of the charge and the maximum penalties, his right to counsel, and he was then questioned in detail * * * as to the events and who he was with and how he did go into the store building and what his purpose was. These are all clearly set forth in the’' árxaignment and1.1 am of opinion that tile Goldfarb Case can be distinguished on that particular phase.”

We agree with the trial court that Goldfarb, supra, is not applicable herein.

The relevant portion of GOB 1963, 785.3(2) provides as follows:

“If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea,”

In the case of People v. Wurtz (1965), 1 Mich App 190, the defendant was advised on arraignment of the nature of the accusation against him before his plea of guilty was entered. We stated therein, at p 198, as follows:

“The nature of the charge was explained to defendant at the beginning of the proceedings. This Court concludes that the trial judge substantially satisfied the requirements of Court Eule No. 35A (1945).”

The Wurts Case, supra, is directly in point and is controlling in the instant case. Defendant was afforded opportunity to consider these matters of which he was informed before, as well as after, he entered his plea. We conclude the trial court substantially complied with the requirements of the court rule.

We are not convinced that the asserted variation from the procedure arguably required under strict construction of the court rule has resulted in less than substantial justice. GCE 1963, 529.1.

Affirmed.

Lesinski, C. J., and Burns, J., concurred.

       CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann, 1968 Cum Supp § 28,305),

       The wording in the old court rule 35A (1945) is identical with the wording of the present court rule, GOB 1963, 785.3(2).


author: J. H. Gnus, J.

text:
    PEOPLE, for use and benefit of STATE EMPLOYEES RETIREMENT SYSTEM, v. TRAVERSE CITY STATE BANK.
    1. Bills and Notes — Forged Indorsement.
    A signature forged or made without the authority of the person whose signature it purports to be is wholly inoperative, and no right to retain the instrument or give a discharge or enforce payment can be acquired through or under such signature unless the party against whom it is sought to enforce sueh right is preeluded from setting up the forgery or want of authority (CL 1948, § 439.25).
    2. Same — Impostor and Forger.
    A drawer or maker who pays a holder when the payee is an impostor has no recourse on an indorser, but where the payee’s name is signed by a forger and payment is made to a subsequent indorser, the drawer or maker can recover.
    3. Same — Forgery—Impostor—Intent of Maker.
    The dominant intent of the State in drawing a warrant to the order of a retired employee is to pay the retiree rather than whatever person may represent himself to be the retiree, and indorsement of the payee’s signature on the warrant by an unauthorized person is not an imposture, but a forgery (CL 1948, §439.25).

      References for Points in Headnotes
    [1] 11 Am Jur 2d, Bills and Notes §§ 704, 705, 710.
    [2( 11 Am Jur 2d, Bills and Notes §§ 991, 992, 1018.
    [s; 11 Am Jur 2d, Bills and Notes §§ 706, 709.
    [4 11 Am Jur 2d, Bills and Notes § 331.
    [s: 10 Am Jur 2d, Banks §§ 611, 700, 701.
    [e: 11 Am Jur 2d, Bills and Notes §§ 615, 616, 624.
    [7; 11 Am Jur 2d, Bills and Notes §§ 386, 589, 695.
    [8] 11 Am Jur 2d, Bills and Notes §§ 710-714.

      4. Same — Second Indorsement — Agency.
    Indorsement by wife of her name on deceased husband’s retirement cheek below the supposed signature of the payee husband, which she also signed, removes the possibility of an imposture since she did not assume the status of the payee and the indorsement is that of an agent of the payee (CL 1948, § 439.25).
    5. Same — Indorsement—Verification—Burden on Cashing Bank.
    A cashing bank has the burden of verifying the authenticity of any indorsements appearing on a negotiable instrument.
    6. Same — Guarantee of All Prior Indorsements.
    A guarantee of all prior indorsements on a negotiable instrument is an absolute guarantee.
    7. Same — Fraud in Procuring Dram — Forged Indorsement — Liability.
    The negligent failure of drawer to protect itself against fraud in procuring the making of a draft does not cast upon the drawer the risk that it will be paid upon a forged indorsement (CL 1948, § 439.25).
    8. Same — Warrants Issued to Deceased Betiree — Payment on Forged Indorsement. ' ■ -
    The State is ’not ■ precluded from asserting forgery where it causes payroll warrants to1 be issued tó a deceased retiree believing him to be alive, when defendant bank paid the amount of the warrants to the retiree’s widow on a forged indorsement-(CL 1948, § 439.25).
    Appeal from Ingham; Hughes (Sam Street), J.
    Submitted Division 2 December 6, 1966, at Lansing.
    (Docket No. 2,304.)
    Decided March 21, 1968.
    Complaint by the State of Michigan against the Traverse City State Bank for reimbursement of money paid to the bank on a forged indorsement. Judgment for- plaintiff. Defendant appeal's.'
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengo ski, Solicitor General, Eugene Krasicky and James J. Wood, Assistant Attorneys General, for the people.

      Murchie, Galcutt & Brown, for defendant.
   J. H. Gnus, J.

On December 1, 1947, one Clarence V. Hulbert, an employee of the plaintiff, State of Michigan, retired. Payroll warrants were issued by the plaintiff to Clarence V. Hulbert from December of 1947 to February of 1962. Unknown to the plaintiff, Clarence V. Plulbert died on July 11,1957, so that indorsements on warrants cashed after that date totalling $5,100 must have been forged. On the reverse side of each of these warrants the name of Agnes Hulbert appeared below that of the purported signature of Clarence Y. Hulbert. Fifty-two of the warrants between the months of July 1957 and October 1962 were deposited in the defendant bank. In each instance the defendant collected the amount thereof on its indorsements which recited “Prior indorsements guaranteed.”

Plaintiff required an annual statement of each person receiving a retirement allowance. Requests for such statements were sent annually on post cards addressed to Clarence Y. Hulbert and each statement was returned to the plaintiff. The opposite side of the post card contained the following information :

“Clarence V. Hulbert 1290 :
217 W. 9th Street : Sep. 19,1960 _
_ Traverse City, Michigan : I hereby certify that I am the identical person named hereon; that I am a beneficiary of the Michigan State Employes’ Retirement System and legally entitled to the retirement allowance received therefrom; and that the signature below is in my own handwriting.
“Sept. 16,1960 Clarence V. Hulbert
Date signature
217 W. 9th Street address”

Plaintiff received actual notice of Hulbert’s death in March of 1962 when his widow died and the attorney for her estate returned 4 uncashed warrants. The plaintiff was able to collect $3,080.32 from the widow’s estate. Plaintiff instituted the present suit to collect the balance of its loss from the defendant on the theory that defendant, having paid the funds on a forged indorsement, and having guaranteed the prior indorsements, was liable.

The case was submitted to the trial court on a stipulated set of facts. On May 12,1966, the court having agreed with plaintiff’s theory, granted its motion for summary judgment.

Defendant appeals claiming that the trial court erred in granting this judgment for plaintiff. It asserts two arguments for this conclusion: (1) the facts here presented plainly indicate an impostor situation existed, and (2) the State was precluded from setting up the forgery pursuant to CL 1948, § 439.25 (Stat Ann 1959 Rev § 19.65).

An impostor situation and the payment on a forged indorsement are closely related but each has a distinct meaning and result in the law of commercial paper.

As the court pointed out in United States v. Bank of America N. T. & S. Assn. (CA 9, 1959), 274 F2d 366, 367 (81 ALR2d 1358, 1362):

“In a certain sense, all forgers are impostors and, similarly, impostors in connection with commercial paper in a broad sense are usually forgers. But in the law merchant they are supposed to be separate people. Thus, if the payee is an impostor, a drawerdrawee (probably more properly considered as a maker) who pays a holder has no recourse on an indorser. If, however, he who signs the name of a payee may be classified as a forger, the drawerdrawee, after paying a subsequent indorser, may still recover his unfortunate payment from the indorser.”

The Court further stated:

“Of course, what makes the difference between the impostor in law and the forger in law is the intent of the maker, something not to be found on the face or back of the instrument.” United States v. Bank of America N. T. & S. Assn., supra, at p 368.

During the period in question the negotiable instruments law, CL 1948, § 439.1 et seq. (Stat Ann 1959 Rev § 19.41 et seq.) was in effect in Michigan. The negotiable instruments law does not specifically deal with the impostor situation. In his book, Michigan Negotiable Instruments Law and the Uniform Commercial Code, Professor Roy L. Steinheimer stated that under the negotiable instruments law there were two approaches to the problem. Many jurisdictions hold that if the “dominant intent” of the maker or drawer was to pay the physical person A, who was posing as B, rather than to pay B, then the maker or drawer must suffer the loss. Other jurisdictions have held that A’s indorsement of B’s name is a forgery without regard to the maker’s or drawer’s intention and thus a bank would be paying funds on a forged indorsement.

“There is a dearth of impostor cases in Michigan and from the few cases reported it is impossible to say which of the above approaches to the problem the Michigan courts would follow.” Michigan Negotiable Instruments Law and the Uniform Commercial Code, supra, at p 84.

Between 1957 and 1962 the plaintiff in the present case delivered the warrants, payable to Clarence V. Hulbert, to a person other than the payee. Yearly the plaintiff sent out post cards as described above and they were returned filled out and signed. The defendant argues that the State intended to pay the person who filled out the cards. Therefore, an indorsement by that person would relieve the defendant from liability under an “impostor” analysis. "With this conclusion we cannot agree. The intent of the plaintiff here was to pay its retiree. To illustrate this point we will adopt the above-quoted analysis of Professor Steinheimer. The dominant intent of the plaintiff was to pay the physical person B and not to pay the physical person A who was posing as B. Therefore, under either of the approaches outlined by Professor Steinheimer the defendant’s argument must fail. An impostor analysis is not applicable to the present case.

Plaintiff in its brief correctly states:

“It will be noted that on all the checks (see exhibits to complaint), the name of both Clarence V, Hulbert and Agnes G. Hulbert appears as the indorsement. Thus Agnes G. Hulbert, in cashing the checks, was not representing herself to be Clarence G. Hulbert but an agent of Clarence G. Hulbert. She admitted by her signature below the other signature that she was not Clarence G. Hulbert. She, in effect, represented that he was alive, had indorsed the checks first and that she was authorized to cash them for him by adding her signature and presenting them. This is clearly not an imposture.
“If Agnes Hulbert had been a true impostor and signed Clarence’s name only, the bank would have immediately seen that she was not a man. As stated at 81 ALR2d 1365 at 1391, the impostor rule is inapplicable where the indorsement is of a name different from that of the named payee. The rule is also stated at page 1371 of that reference- where the following observation is made:
“ ‘Looking now to the relations between the impostor and the second victim of his fraud, his indorsee to whom he negotiated the instrument, we find that * * * (3) the impostor has uniformly assumed the status of rightful holder as payee of the instrument.’ (Emphasis supplied [in brief].)
“Here, Agnes Hulbert, in cashing the -checks, did not assume the status of payee (Clarence Hulbert). She signed below his name. This completely removes this case from the impostor rule. Agnes Hulbert, in effect, signed each check as.agent and represented that she was the agent of Clarence Hulbert.”

Defendant next contends that the State was precluded from raising the forged indorsement pursuant to CL 1948, § 439.25 (Stat Ann 1959 Rev § 19.65). See footnote 3.

In effect defendant argues that the plaintiff should have discovered the fraud because of the variance in the signatures on the warrants. There is also evidence in the record to indicate that the widow had made application for medical benefits from the State and on this application stated that her husband was deceased. Defendant claims plaintiff was negligent in not discovering the fraud and therefore should be precluded from recovery.

In taking this position, it seems to this Court that defendant is overlooking its own responsibilities in this situation. A burden is cast upon the cashing bank to verify the authenticity of any indorsements appearing on the instrument. Furthermore, in the present case the defendant “guaranteed all prior indorsements.” It has been held that this guarantee is absolute. See First National City Bank of N. Y. v. Manufacturers Trust Company (1963), 39 Misc 2d 428 (240 NYS2d 669). This case further holds at p 429:

“The negligent failure by a drawer to protect itself against fraud in procuring the making of a draft does not cast upon the drawer the risk that it will be paid upon a forged indorsement.”

This statement has particular application to the present case. Here, the negligence, if any, on the part of plaintiff caused the warrants to issue. However, it was the lack of due care on the part of the defendant which allowed payment on the forged indorsement. Therefore, plaintiff was not precluded from asserting the fact of the forgery in these circumstances.

Affirmed. Costs to appellee.

T. Gk Kavanagh, P. J., and McGregor, J., concurred.

       The payroll warrants referred to hereinafter as warrants are in effect drafts drawn by the plaintiff on itself payable to the order of a named person.

       The parties hereto stipulated that plaintiff did not have aetual knowledge that Clarence V. Hulbert died July 11, 1957, but defendant basically argues that plaintiff received constructive notice as is detailed later in this opinion.

       “Where a signature is forged or made without the authority of the person whose signature it purports to bo, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.”

       The uniform commercial code, PA 1962, No 174 (CL 1948, § 440-.1101 et seq. [Stat Ann 1964 Rev § 19.1101 et seg.]) became effective on January 1, 1964 in Michigan and therefore had no application to the present case.

        R. Mars, The Contract Co. v. Massanutten Bank of Strashurg (CA 4, 1960), 285 F2d 158 (87 ALR2d 633); Saf-T-Boom Corp. v. Union National Bank (1963), 236 Ark 518 (367 SW2d 116).


author: Levin, J.

text:
    PEOPLE v. NORMAN.
    1. Courts — Modification of Orders — Clerical Mistake.
    A court order may be changed to correct a clerical mistake and, where the court has made a reservation of power to modify the order, reflect that reservation (GCR 1963, 528.1).
    2. Criminal Law — Information—Added Counts — Waiver.
    Defendant who waived preliminary examination and pled guilty to an added count of breaking and entering a building with intent to eommit larceny after his motion to quash original information was conditionally granted in trial court's opinion nisi without formal entry of order, held, to have waived nonoccurrenee of the condition of the opinion nisi by his consent to the proceedings, since at the time he pled guilty to the added count, the original information was viable either because it had never been formally quashed or because it was reactivated by the tentative nature of the opinion nisi (CL 1948, § 750.110, as amended by PA 1964, No 133).
    3. Same — Quashing of Information — Jurisdiction.
    Quashing an information does not deprive a eourt of jurisdiction over a defendant, and the eomplaint before the justice, the warrant, commitment, and return all remain of the same force and virtue as if no information had been presented.
    4. Same — Function of Complaint — Warrant.
    The primary function of the eomplaint is to move the magistrate to determine whether a warrant shall issue and the justification for issuance of the warrant need not appear in the eomplaint.
    References for Points in Headnotes
    [1] 30A Am Jur, Judgments § 664.
    [2] 21 Am Jur 2d, Criminal Law § 495.
    [3] 27 Am Jur, Indictments and Information § 143.
    [4] 5 Am Jur 2d, Arrest §§ 12-15; 21 Am Jur 2d, Criminal Law § § 3, 441.
    [5] 27 Am Jur, Indictments and Information §§ 2, 13-15, 33, 44, 51.
    [6] 21 Am Jur 2d, Criminal Law §§ 325, 442, 446.
    [7, 8] 21 Am Jur 2d, Criminal Law §§ 442, 446, 447, 450.

      5. Same — Information'—Complaint—Examination.
    An information is not predicated upon the complaint or the examination upon whieh the warrant issues, but is presumed to have been framed with reference to the facts disclosed at examination whieh succeeds the arrest.
    6. Same — Examination • — ■ Information on Distinct Offenses — Waiver.
    An accused cannot be informed against until a judicial determination upon the preliminary examination that a crime has been committed and there is probable cause to believe him guilty, and he may not be tried for an offense different from the one for which he was examined or for which he waived examination, but where he fails to object before pleading to an information charging an offense district from that for whieh he was examined upon the complaint, he will be deemed to have waived the dofeet.
    7. Same — Wajver of Complaint, Warrant, and Examination.
    A defendant who is within the court’s jurisdiction on a pending complaint may waive a new complaint and warrant preceding preliminary examination, just as he may waive preliminary examination itself.
    8. Same — Information—Added Count — Waiver of Examination.
    Waiver of preliminary examination and a plea of guilty by defendant to an added count charging breaking and entering with intent to commit larceny to an information originally charging breaking or attempting to break a safe, which was conditionally quashed by trial court’s opinion nisi, held, to amount to consent to the added count and waiver of the omitted proceedings whieh would otherwise have been required (CL 1948, § 750.110, as amended by PA 1964, No 133; § 750-.531).
    Appeal from Wayne; Baum (Victor J.), J.
    Submitted Division 1 April 4,1967, at Detroit.
    (Docket No. 2,521.)
    Decided March 21, 1968.
    Leave to appeal denied September 4,1968.
    See 381 Mich 773.
    Gerald George Norman was convicted of breaking and entering a building with intent to commit larceny. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoslci, Solicitor General, William L. Gahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

      Max E. Klayman, for defendant.
   Levin, J.

The information originally filed charged the defendant with breaking or attempting to break, burn, blow up, or otherwise injure or destroy a safe, vault, or depository of money or other valuables in a building or place on October 13, 1965, with intent to commit larceny in violation of CL 1948, § 750.531 (Stat Ann 1954 Rev § 28.799).

The defendant moved to quash that information. The trial judge concluded that the statute violated the United States Constitution, Am 14, in not forewarning with definiteness precisely what conduct is criminal, 2but he stated his opinion was tentative, was not based upon adequate opportunity to research and consider the matter, and he would therefore “make this opinion and decision only provisional. It shall be treated as opinion nisi.” The court then said the prosecuting attorney would have 30 days within which to submit a brief, after which defense counsel could submit a reply brief.

A formal order was not entered on the basis of that provisional opinion. However, the judge’s journal of February 11, 1966, contains the following entry: “Motion to qnasli for defendant, Gerald G. Norman, granted.” Tbe journal was signed with the facsimile of the judge’s signature on February 14, 1966.

On February 24, 1966, the assistant prosecuting attorney moved to add to the information a count alleging that the defendant broke and entered a building with intent to commit larceny in violation of CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Gum Supp § 28.305). Defense counsel stated he had no objection to the addition of the count, and the court directed its addition. The defendant personally waived preliminary examination on the added count, was convicted on his plea of guilty and sentenced.

On appeal the defendant claims that after the original information was quashed another count could not be added without new proceedings before a magistrate and the filing of a new information, and that the old information could not be amended to charge a distinct and different crime not included in the complaint and warrant.

The defendant suggests that since it- is not the practice to enter a formal order where a motion to quash is granted, the journal entry might be treated as an order; and, since courts speak through their orders rather than their opinions, the order so entered quashed the information without reservation of a power to modify. We find no need to rule whether a journal entry may be treated, or function, as an order where it is not the practice to enter a formal order. If the journal entry were deemed to be an order, it could, like any other order, be changed to correct a clerical mistake and, thus, reflect the court’s clear reservation (“shall be treated as opinion nisi”) of the power to modify the order. GCR 1963, 528.1. Compare Kintz v. Galvin (1922), 219 Mich 48.

However, the matter may be viewed, at the time the new count was added and the guilty plea accepted, the court had before it a viable information — one that either had never been quashed because no order had been entered, or one which was reactivated by virtue of the tentative nature of the earlier action. The defendant’s consent to the procedures followed waived nonoccurrence of the condition upon which the judge had made his determination provisional, and his consent makes it unnecessary for us to decide whether a trial judge can properly set aside a decree nisi without occurrence of the condition specified in the judgment.

Quashing the information did not deprive the court of jurisdiction over the defendant on the original complaint.

“The complaint before the justice, his warrant, commitment, and return were still of the same force and virtue as the basis for an information as if that which had been quashed had never been presented. * * #
“The court had lost no jurisdiction of the prisoner by the void or defective information which had been quashed.” Mentor v. People (1874), 30 Mich 91, 93.

The statute does not prescribe the form of a complaint. The primary function of the complaint is to move the magistrate to determine whether a warrant shall issue, and the justification for issuance of the warrant need not appear in the complaint. Turner v. People (1876), 33 Mich 363. The complaint does not “fix and control the after-proceedings.” People v. Kahler (1892), 93 Mich 625, 627. See, also, People v. Pichette (1897), 111 Mich 461, 462. “The information is not predicated upon the complaint or the examination upon which the warrant issues, but it is presumed to have been framed with reference to the facts disclosed at the examination which succeeds the arrest.” People v. Kahler, supra, p 627.

While an accused cannot be informed against until a judicial determination upon the preliminary examination that a crime has been committed and that there is probable cause to believe him guilty, and while he may not be tried for an offense different from the one for which he was examined or waived examination, it has been said that where he fails before pleading to object to an information charging an offense distinct from that for which he was examined upon the complaint, he will be deemed to have waived the defect. People v. Jones (1872), 24 Mich 215, 218.

In People v. Handley (1892), 93 Mich 46, People v. Monick (1938), 283 Mich 195, and People v. Donovan (1924), 228 Mich 149, 151, 152, the defendants timely objected to amendments charging offenses which had not been the subject of a preliminary examination; and in People v. Dochstader (1936), 274 Mich 238, the defendant made timely objection that the information as originally filed charged an additional offense distinct from the one charged in the complaint and warrant, a preliminary examination having been held on the complaint charge only. In those cases the defendants prevailed. Timely objection distinguishes those cases from the one -here for decision.

We acknowledge that in Mentor the new information’s charge was identical with the charge- in the quashed information. However, considering the limited function of the complaint and warrant in a felony case, we see no reason why a defendant who is within the court’s jurisdiction on a pending complaint (here, the safecracking charge), may not waive a new complaint and warrant preceding-preliminary examination, just as he may waive preliminary examination itself. Our Supreme Court has so held. In People v. Jones, supra, the defendant was examined before the magistrate on one offense, but the information charged him with (p 218) “a distinct offense from that charged in the complaint, and upon which defendant was examined”. The defendant pleaded not guilty and went to trial. After the State introduced its evidence, the defendant moved for discharge on the grounds there had been no complaint against him for the crime alleged in the information and he had never been examined upon the charge contained in the information. The court ruled (pp 218, 219):

“Had this motion been made before pleading not guilty to the information, it must have prevailed. But as the statute expressly authorizes a defendant to waive an examination, we think it clear * * * that he may waive it as well when called upon to plead to the information, as when brought before the magistrate for examination; and we think the plea of not guilty must be treated as such waiver.”

"We conclude that when the defendant Norman waived preliminary examination on, and pleaded guilty to, the added count, he validly consented to its addition and waived the omitted proceedings which would otherwise have been required. Defendant, having consented and agreed to the procedures followed, may not now be heard to challenge them.

Affirmed.

T. Gr. Kavanagh, P. J., and Vander Wal, J., concurred.

       The trial judge stated: “by title or label, it [the statute] suggests that there must be assaultive eonduet for the crime, and on the other hand, burys in the multifarious language of the statute an offense which does not require such conduct.” The judge added that the statute might also be objectionable in that it “embraces more than one subject.” The question of the statute’s constitutionality is not an issue on this appeal. We intimate no opinion thereon.

       An opinion nisi is “one whieh is to stand as valid and operative unless the party affected by it shall appear and show cause against it, or take some other appropriate step to avoid it or procure its revocation.” Black’s Law Dictionary (4th ed, 1951), p 1197.

       “It is axiomatic that eourts speak through their orders and decrees, not through colloquy between judge and counsel.” Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich 85, 90. However, see Lewis v. Wayne County Sheriff (1953), 335 Mich 640, and Blickle v. Kent Probate Judge (1920), 211 Mich 216, concerning the effectiveness between the parties of oral judgments by the trial judge upon the conclusion of a hearing. The statutory provision (CL 1948, § 602.55 [Stat Ann § 27.192]), concerning the journal of the court, referred to in Lewis v. Wayne County Sheriff, supra, was not carried forward into the revised judicature act. However, see GCB 1963, 522.3 requiring the clerk of each court to “keep a permanent record of all proceedings before the court which shall be designated a journal. The judge shall sign the journal for each day in which entries appear to indicate the official character of the orders, judgments and proceedings therein for that day.” As to the application of the general court rules of 1963 to criminal eases see footnote No 5 and last sentence of GCR. 1963, 522.1.

       See Hartman v. Roberts-Walby Enterprises, Inc. (1968), 380 Mich 105, holding that a journal entry is not a judgment or order for purposes of computing time for filing a claim of appeal.

       The general court rules of 1963 “apply to criminal eases, except as otherwise provided by rule or statute, and except when it clearly appears that they apply to eivil actions only, or where statutes or special court rules provide a different procedure.” GCR 1963, 785.1 (!)•

       The principle stated was also applied in Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich 482, 488, and People v. Miklovich (1965), 375 Mich 536, 539.

        Turner v. People, supra, p 371; People v. Evans (1888), 72 Mich 367, 387; People v. Monick (1938), 283 Mich 195, 199; People v. Dochstader (1936), 274 Mich 238, 243.

         People v. Handley (1892), 93 Mich 46, 48; Stuart v. People (1879), 42 Mich 255, 259.

       The complaint here charged a felony. We do not wish to be understood as saying that in a case {e.g., misdemeanor) where the complaint and warrant take the place of an information, different standards might not be required. Compare People v. Jackman (1893), 96 Mich 269, 274 (misdemeanor), with People v. Shuler (1904), 136 Mich 161, 166 (felony).

       As to waiver of preliminary examination, see People v. Sanford (1925), 233 Mich 112, 115; People v. Losinger (1951), 331 Mich 490, 497; People v. Tate (1946), 315 Mich 76; and People v. Wright (1891), 89 Mich 70, 76.


author: B. M. Byan, J.

text:
    RENTFROW v. GRAND TRUNK WESTERN RAILROAD COMPANY.
    1. Pleading — Court Rules — Defenses—Contributory Negligence.
    Defendant may raise as many defenses as it has against plaintiff, and by raising the defense of contributory negligenee, defendant does not admit negligence (GCR 1963, 111.2).
    2. Negligence — Contributory Negligence.
    Statement by plaintiff’s counsel that defendant must be negligent in order to elaim plaintiff’s decedent was eontributorily negligent was error but was cured by an instruction from the court that the law to be applied to the ease would be given by the court.
    3. Same — Contributory Negligence.
    Contributory negligenee necessarily implies negligence on the part of defendant.
    4. Same — Contributory Negligence — Instruction.
    Instruction by court that contributory negligenee imports the defendant was guilty of negligenee is legally sound and although it should have been put in language more understandable to the jury is not erroneous when the charge as a whole adequately informed the jury of the applicable law.
    5. Appeal and Error — Instructions—Evidence.
    Appellate eourts view trial court’s instructions as a whole in determining its adequacy, and the test is: did the instructions as given adequately infoi'm the jury on the applicable law z'eflecting and refleeted by the vai'ious evidentiary claims in the particular ease?

      References for Points in Headnotes
    [1] 38 Am Jur, Negligenee §§ 277, 278; 41 Am Jur, Pleading §§ 114, 116.
    [2] 53 Am Jur, Trial § 506.
    [3] 38 Am Jur, Negligenee §§ 174, 175, 181.
    [4] 38 Am Jur, Negligence § 367.
    [5, 6] 5 Am Jur 2d, Appeal and Error § 894.
    [7] 38 Am Jur, Negligence §§ 367, 557, 601, 629, 660, 679, 837, 838.
    [8] 44 Am Jur, Railroads § 632,

      6. Same — Instructions.
    Isolated portions of an instruction to the jury which might bo subject to criticism if divorced from the remainder will not bo singled out as grounds for reversal.
    7. Negligence — Contributory Negligence — Instructions.
    Instruction defining contributory negligence in language which defendant elaims was confusing and which contained a double negative held, not reversible error, when followed by other instructions which, viewed in their entirety, made it clear to the jury that the issue of defendant’s negligence, if any, was for their determination and if they determined he was negligent, they must deeide the issue of contributory negligence by plaintiff.
    8. Railroads — Grade Crossing Accident — Instructions.
    Instructions, viewed as a whole, that were given in wrongful death action arising out of grade crossing accident when defendant’s fast-moving train struck car driven by plaintiff’s decedent held, to have elearly presented issues of negligence and contributory negligence to jury.
    Appeal from Cass; Anderson (David, Jr.), J.
    Submitted Division 3 April 4,1967, at Grand Bapids.
    (Docket No. 2,366.)
    Decided March 21, 1968.
    Complaint by Louise Bentfrow, administratrix of the estate of Dale Bentfrow, deceased, against Grand Trunk Western Bailroad Company for the wrongful death of Dale Bentfrow. Verdict and judgment for plaintiff. Defendant appeals.
    Affirmed.

      Jones, Webb & Jones, for plaintiff.

      Earl G. Opperthauser, for defendant.
   B. M. Byan, J.

This matter involves a claim of negligence in connection with a train-automobile accident at a grade crossing. On May 27, 1964, at about 6 a.m. a freight train, westbound for Chicago, arrived at this crossing, stopped and backed over at a switch onto the eastbound tracks in order to permit defendant’s nearly-due westbound passenger train to pass it. It was the claimed intention of the crew of the freight train to start the freight train and pull it across the crossing so as to block the crossing to motor vehicles while the passenger train passed. The freight train proceeded to a point about 100 feet from the crossing when a car, driven by plaintiff’s decedent, approached the crossing. The fireman in the freight train made a motion with his hand and arm, and the plaintiff’s decedent stopped the car some 40 feet from the track. After apparently observing the position of the freight train, the plaintiff’s decedent’s car then moved ahead over the crossing. As the car moved over the crossing the engine of the fast moving passenger train arrived, striking the car and killing both occupants.

In the pleadings and at trial defendant denied that it was negligent and interposed the affirmative defense of contributory negligence. The jury returned a verdict in favor of plaintiff in the amount of $73,150 and judgment was rendered accordingly.

The questions presented on appeal relate to the instructions to the jury on the issue of contributory negligence. Before argument to the jury, the trial court advised counsel that he was going to charge the jury to the effect that the defense of contributory negligence imports that the defendant was guilty of negligence. In his argument to the jury, plaintiff’s counsel stated:

“Mow, there will be a claim that Mr. Rentfrow was negligent, that he was what they call contributorily negligent. And in order to claim that he was contributorily negligent, they have to admit that they themselves were negligent, but that what he did also was negligence and contributed with their negligence to canse his death.”

After plaintiff’s counsel recited some examples of negligence and contributory negligence, defendant’s counsel objected to this kind of argument, which objection was sustained. The trial court then advised the jury as follows:

“Let me make this statement now. The law which you will apply to this case will be given to you in the instructions by the court, and you are to accept only the statement of the law as I give it to you and not any statement of counsel as to what the law is or is claimed to be.”

In his instructions to the jury at the conclusion of the proofs, the trial judge in one portion of the instructions said:

“Contributory negligence, as the very word imports, arises when the plaintiff as well as the defendant has done some act negligently or has omitted through negligence to do some act which a reasonably prudent person would not have done or would not have omitted to do under the same circumstances and which contributes to the injury.”

Defendant contends that it was improper for plaintiff’s counsel to tell the jury that in order to claim that he (plaintiff’s decedent) was contributorily negligent, defendant would have to admit that it was negligent, and that it was further improper for the trial judge to instruct the jury that the defense of contributory negligence imported negligence on the part of defendant in view of the alleged prejudicial argument to the jury by plaintiff’s counsel on this very question. Defendant contends that the combined effect of argument of counsel and the trial court’s statement to the jury that he would instruct them on the law, followed by the particular instruction complained of, was prejudicial to defendant, confusing to the jury, and amounted to reversible error.

Clearly, the statement made by plaintiff’s counsel to the jury that in order to claim that plaintiff’s decedent was contributorily negligent, defendant would have to admit that it was negligent, was a misstatement of the law. Under our court rules defendant was entitled to raise as many defenses as it had against plaintiff, and when it did so, no defenses were waived. GCR 1963,111.2. Certainly, by raising the defense of contributory negligence, defendant cannot be deemed to have admitted negligence on its part.

However, upon objection by defense counsel to the argument by counsel for plaintiff, the court properly instructed the jury as follows:

“The law which you will apply to this case will be given to you in the instructions by the court, and you are to accept only the statement of the law as I give it to you and not any statement of counsel as to what the law is or is claimed to be.”

The potential prejudice arising out of the improper argument of counsel was cured by this instruction.

As for the charge of the court itself, it was legally sound — there can be no contributory negligence unless there was negligence on the part of defendant. Haney v. Frederick V. Gentsch, Inc. (1962), 368 Mich 354; Rockwell v. Grand Trunk Western Railway Co. (1931), 253 Mich 144. While we agree with defendant that the instruction should have been fashioned in language more understandable to the jury, we believe that viewing the instructions as a whole, the trial court adequately informed the jury of the applicable law.

Defendant also contends that the trial judge improperly defined contributory negligence in the challenged instruction to the jury. Defendant claims that it contained a double negative, did not properly define the term contributory negligence, was confusing to the jury and could not be understood.

The rule that appellate courts view the trial court’s instructions as a whole in determining its adequacy is elemental. As pointed out in Johnston v. Narmore (1965), 1 Mich App 160, the test to be applied is succinctly stated in Huffman v. First Baptist Church of Flushing (1959), 355 Mich 437, 446:

“Did the instructions as given adequately inform the jury on the applicable law reflecting and reflected by the various evidentiary claims in the particular case?”

Isolated portions of an instruction which might he subject to criticism if divorced from the remainder will not he singled out as grounds for reversal. Hayes v. Coleman (1953), 338 Mich 371; Bathke v. City of Traverse City (1944), 308 Mich 1. In the case at bar, having already given the challenged instruction, the court charged the jury:

“If the plaintiff decedent was guilty of negligence which directly contributed to the accident and without which the accident would not have occurred, then the plaintiff decedent’s negligence in such cases defeats recovery.”

And,

“If the defendant railroad did what an ordinarily reasonable prudent person would have done under similar circumstances, the defendant was not negligent. If it failed to do what an ordinarily prudent person would have done, or did something that an ordinarily prudent person would not have done, then the defendant was negligent.”

Later in the instructions the court, after explaining to the jury what facts they should take into consideration in determining whether plaintiff was negligent, said:

“If you find that under all these circumstances he [plaintiff’s decedent] did not exercise the care and caution that a reasonably ■ prudent person Avould have exercised under the same or similar circumstances and that his failure proximately caused or contributed to the accident, your verdict must be for the defendant.”

Near the conclusion of the instructions, the trial court further instructed the jury as follows:

“Your verdict will be one of two. If you find by a preponderance of the evidence that the defendant Avas negligent and that such negligence was the proximate cause of the accident and injuries, and you do not find from a preponderance of the evidence that plaintiff decedent Avas guilty of negligence proximately causing or contributing to the accident, your verdict will be, We find for the plaintiff Rentfrow in the sum of,’ you naming the amount
“If you do not find from a preponderance of the evidence that defendant was negligent and that said negligence was the proximate cause of the accident, or if you find from a preponderance of the evidence that plaintiff decedent was guilty of negligence proximately causing or contributing to the accident, your verdict will be, We find for the defendant, no cause of action.’ ”

Viewing the instructions in their entirety we conclude that the jury clearly understood that the issue of defendant’s negligence, if any, was for their determination and that if they determined that defendant was negligent,- they must decide the issue of contributory negligence by plaintiff.

Affirmed. Costs to appellee.

Burns, P. J., and Holbrook, J., concurred.