author: Moore, C. J.

text:
    ROBERTS v. BIDWELL.
    1. Wills — Testamentary Capacity — Opinion Evidence.
    In the contest of a 'will for alleged lack of testamentary capacity of the testator, an opinion of his mental incompetency may be given by a witness testifying to circumstances showing peculiarities in the conduct of the testator which, taken as a whole, tend to justify the opinion.
    2. Trial — Evidence—Hearsay—Sufficiency of Objection.
    Where a motion to strike from the answer of a witness a part relating to a conversation had with another as to what a third person told the latter was overruled on a promise to connect it, the ground of the objection was that the testimony was hearsay, and such it was, and, the promise being unfulfilled,'it should have been excluded.
    3. Wills — Undue Influence — Evidence—Declarations of Legatee.
    The declarations of one of several legatees or devisees, made in the absence of the testator and prior to the making of the will, are not admissible to show either undue influence or lack of business capacity. O’Connor v. Madison, 98 Mich. 183, followed.
    4. Same — Declarations of Testator.
    Declarations of the testator, both before and after the making

      of the will, considered, and held admissible. See Bush v. Delano, 113 Mich. 321.
    Error to Lenawee; Chester, J.
    Submitted October 20, 1903.
    (Docket No. 45.)
    Decided March 29, 1904.
    H. Brant Roberts presented for probate the last will and testament of Jacob G. Roberts, deceased. The will was allowed in the probate court, and Charles Bid well, guardian of Carroll Roberts, an incompetent, appealed to the circuit court. From a judgment for contestant, proponent brings error.
    Reversed.

      Thomas A. Wilson, Watts, Smith & Baldwin, and Grant Fellows, for appellant.

      John E. Bird, FredB. Wood, and John L. O’Mealey, for appellee.
   Moore, C. J.

This is a will contest. Jacob G. Roberts, the deceased, was the father of four children, one of whom died when about 13 years old. The other three grew to manhood. They were Morris, Carroll, and Brant. Morris died while serving in the army, in the year 1864, never having been married. Brant, the youngest son, remained at home until he was upwards of 35 years old. He was married in 1877. Carroll was also married, his wife died, and in 1889 he was adjudged insane and sent to the asylum. At this time he had children, who are still living.

On March 6, 1895, Mr. Roberts went to Adrian, and had Mr. Weaver draw his will. It provided for the payment of his debts and funeral expenses. It gave “to the trustees of the Presbyterian church of Tecumseh, and their successors in office, the sum of $400, to be by them invested, and the income thereof, annually thereafter, shall by them be paid to the minister in charge, to the end that my children and grandchildren may have the benefit of said church.” It gave to his niece the sum of $300. It provided for the erection on a lot owned by Carroll of a suitable monument for the use and benefit of Carroll, the cost not to exceed the sum of $600. It gave to his granddaughter certain articles of household furniture. It then provided “in case my son Carroll Roberts comes into possession of all of his faculties and is restored to his full reason on or before the date of my death, and is living at that date, then and in such case I hereby direct my executors to set aside and invest the sum of $2,000, and the income thereof they shall, annually thereafter, pay to the said Carroll Roberts for and during the period of his natural life, and on the death of said Carroll the said principal sum of $2,000 shall be paid by said executors to my son H. Brant Roberts, or his heirs.” And it gave all the rest of his property to his son H. Brant Roberts.

Mr. Roberts died in October, 1900, when 88 years of age, leaving this will still unrevoked. It was offered for probate and admitted. An appeal was taken to the circuit court. The case was tried before a jury, who disallowed the will. The proponent has brought the case here by writ of error.

Counsel for appellant group the assignments of error as follows: “(1) Questions relating to the admissibility of evidence generally; (2) statements of the testator; (3) the proponent’s requests, and the charge of the court as given.”

It is claimed the court erred in allowing witnesses to testify to their opinion of the mental incapacity of the testator, without showing they were sufficiently acquainted with him to be able to form an opinion; citing White v. Bailey, 10 Mich. 155; O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); and Page v. Beach, 134 Mich. 51 (95 N. W. 981). Counsel call attention particularly to the testimony of the witnesses Heck, Loven, and Haight. It will be sufficient to state the substance of what the record shows as to the acquaintance of one of these witnesses, as illustrative of all of them. Mr. Haight testified:

“ Before that I lived in the township of Tecumseh about twenty four or five years. I am well acquainted with the people about there, and knew Jacob G. Roberts. "When Jacob G. Roberts was Jacob G. Roberts, he was a strong, vigorous man, both mentally and bodily. I moved away from Tecumseh the year of the World’s Fair, in the year 1893. I noticed a change in Mr. Roberts mentally before I went away.
Q. Well, now, just relate to the jury some things that you saw, Mr. Haight.
“A. Well, I used to see him go past my house. That was the street he used to take every time he went to town and home; and prior to this time he used to go by quiet, and the last year or so that I lived there he went by a great many times noisy, singing and talking to himself, making those kind of demonstrations. Once when he went by, he lifted up his coat and brought out a lot of mail, and says, ‘ I have got my mail today.’ I had said nothing to him about his mail or anything else. No one else asked him about his mail. I have seen him go by there in very hot weather with a big overcoat on, and a muffler around his neck, a big, heavy buffalo robe over his lap, and fur gloves on, and side curtains on his buggy. Maybe he was sick, — I don’t know, — but he went by in that way. He came by on one occasion and accosted me while I was playing croquet. I was playing croquet with some friends in the' yard in front of the house, and he wanted to sell me a horse. He had a colt he wanted to sell, — a young horse that he had just been getting. I told him I hadn’t any use for a horse, and I didn’t want to buy any. He said he had just bought the colt, and he would like to sell it. He said the colt was the one that he had hitched to his buggy. As a matter of fact, he had an old horse hitched to his buggy, that he had driven for 14 or 15 years. He said he had bought the colt from Mr. Clarkson, and paid $150 for it.
Q. During that last year, Mr. Haight, before you moved away from Tecumseh, from what you saw of him and what you talked with him, is it your judgment that he was mentally competent to transact any business of importance ?
“A. Why, not generally, I shouldn’t suppose he would be. While I lived in Tecumseh, Mr. Roberts had to pass my house in going to and from his home to Tecumseh.”

On cross-examination, witness testified that he was never intimate with Mr. Roberts.

“Never had any conversation with him, except to pass the time of day. He lived a mile and one-half from me. I left the farm in March, 1893, and moved farther away from him. After that I hardly ever saw him. There was no one id the carriage with him when I heard him talking. I didn’t observe, whether there was any one along the road, but didn’t think he addressed his conversation to any •one in particular. I don’t know whether the old gentleman was sick, or not, when he was bundled up.”

Redirect examination:

“After I moved down in Raisin, — can’t say whether it was in 1897 or not, — Mr. Roberts asked me where Daniel Waring lived. At that time Daniel Waring was dead,— had been for several years. ”

On recross-examination, witness testified that this last conversation might have been at the time of the guardianship proceedings. “ I have no recollection of ever having any conversation with Mr. Roberts.” •

This witness showed as little acquaintance as any of those permitted to be witnesses.

‘ In Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494), Justice Montgomery, speaking for the court, said:

“It was competent to show by witnesses that decedent was erratic, eccentric, rambling and disconnected in her conversation, flighty in her notions, unsettled; that her manner was excitable; that she could not comprehend connected conversation; that she ran about the house screaming, with her di’ess open in the front, etc. These circumstances, of themselves, might not have been sufficient to show testamentary incapacity, but they were competent to be considered with the other evidence offered in the case for that purpose. It cannot be contended in this ■case that there was not enough testimony to justify submitting to the jury the question of mental incapacity, and, where this is the case, circumstances are often admissible which may coexist with a perfectly sound mind. It seldom occurs that any one circumstance or act of a party will, of itself, show insanity. On'the contrary, the judgment of his acquaintances, as well as of medical experts, .must be, and is, made up from circumstances and acts trivial in themselves, but which, when considered together, carry conviction of mental unsoundness. Reference is made to the case of Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882), and language may be found in the opinion of the court in that case which apparently gives, some support to the contention of proponents. But we think this court has never evinced the purpose of creating one rule of evidence which shall apply in will cases, but which is not to be adopted in any other. It is much better than that any such incongruity should become ingrafted in our law, that it be left to the trial judge to guard carefully the rights of legatees by full and adequate instructions upon the degree of mental competency requisite to. make a valid will, accompanied by any necessary caution against giving undue weight to circumstances which, while more consistent with insanity than sanity, yet may coexist with either condition of mind. If it be the rule, as this court has repeatedly held, that inferences from proven facts are to be drawn by the jury, and not by the court, it follows that, in making proof of mental incompetency, any fact which is more consistent with that theory than with the theory of mental soundness must be admissible, and the duty of drawing an inference therefrom is one which an appellate court should not undertake, but which rests with the jury impaneled, in the trial court.”

In O'Connor v. Madison, 98 Mich. 183 (57 N. W. 105), Justice Hooker, speaking for the court, said:

“ It is the settled law of Michigan that an opinion that a testator was incompetent can only be given when the witness has testified to circumstances upon which it is predicated, and which to some extent justify it. White v. Bailey, 10 Mich. 161; Beaubien v. Cicotte, 12 Mich. 459; Rice v. Rice, 50 Mich. 448 (15 N. W. 545); Kempsey v. McGinniss, 21 Mich. 123; Prentis v. Bates, 88. Mich. 567 (50 N. W. 637); Id., 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494). The extent to which such proof must go cannot be limited by an inflexible rule. It must depend upon the familiarity of the witness with the testator, the character of the disqualification, the nature and number of extraordinary circumstances detailed, and proximity to the act involved in point of time. Taken as a whole, they should move the judicial discretion of the trial judge, by apprising him that the witness may fairly doubt -the competency of the person upon .reasonable grounds. Prentis v. Bates, 93 Mich. 242 (53 N. W. 153, 17 L. R. A. 494); Lynch v. Doran, 95 Mich. 395 (54 N. W. 882). And this discretion must be carefully exercised. Rice v. Rice, 53 Mich. 432 (19 N. W. 132).”

See, also, Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566); Sullivan v. Foley, 112 Mich. 1 (70 N. W. 322); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); People v. Casey, 124 Mich. 279 (82 N. W. 883); Walts v. Walts, 127 Mich. 607 (86 N. W. 1030).

The testimony of this witness was supplemented by testimony of other witnesses tending to show much more marked eccentricities, and that they continued from 1893, and increased until the time of the death of Mr. Roberts. We think a sufficient showing was made to permit the testimony.

Mrs. Thurlbee was a witness on the part of the contestant. She had worked for Mr. Roberts, and after her marriage she and her husband worked the Roberts farm. Among other things, she testified as follows:

“Lynn Roberts, Carroll’s son, followed us on the farm. Recollect an occurrence which took place in February, just before we left. Lynn came to the house, and said he wanted I should board the men. He wanted to put up some ice. Said he would come down with three teams the next day. And I told him I would. And he said, ‘Well, don’t say anything to grandpa about it, for I met Uncle Brant up the road, and he told me not to say anything to grandpa about it, but to go on and do what I was a mind -to, and he would stand by me.’
“Mr. Fellows: I move to strike this out, as what Lynn told.
“Mr. Bird: We propose to connect it.
“The Court: You may take the answer. (Exception for proponent.)
“The next morning, after I had done my work, and I was sitting in my room— Mr. Roberts was hard of hearing, and I heard Brant say to him, ‘ Have the boys come yet to put up the ice ?’ The old gentleman didn’t understand, and Brant repeated the question, and the old gentleman says, ‘Why, they ain’t going to put up ice.’ Brant said, ‘ I saw Lynn up the road yesterday, and he said they were coming to put up ice.’ The old gentleman says, ‘He was here, and he didn’t say a word to me about it. ’ Brant says, ‘ Well, I told you that would be just the way he would do. I told you he would do just as he had a mind to.’1 The old gentleman says, ‘ We will see whether he does or not;’ and after this, within half an hour, the boys came with the teams, but they didn’t put the ice up. The old man wouldn’t let them.”

Brant’s version of this incident was as follows:

“While Lynn was on the farm, he came over and said he wanted to put some ice up, and my father objected, or he thought he would object; but, if I remember right, my father did not object or raise any objection, and I told Lynn that, if I wanted to put up ice, I would go ahead and put it up. He had all the expenses to pay, and he put it up himself. I have no recollection of my father’s raising any objection. I did not use the expression to any one that ‘ I told you that would be the way of it.’ ”

It is now said Mrs. Thurlbee should not have been allowed to testify to what Lynn said his uncle Brant told him, for the reason that it was hearsay. On the other hand, it is said the objection was not put upon the ground of hearsay. We cannot agree with this claim, but think it was the ground of the objection, and that the promise to connect the testimony with Brant Roberts, making what Lynn said Brant told him admissible, was not fulfilled, and the testimony of what Lynn said his uncle Brant told him should have been excluded.

Eugene Smith, a former tenant of Mr. Roberts, was a witness, and was questioned about a conversation he had with Brant Roberts about a year and a half before the will was made. The court was in doubt about the admission of this testimony; but counsel were insistent, claiming it had a bearing upon the question of undue influence, and the court admitted it for that purpose. This conversation was at a time when Jacob G. Roberts was not present, and did not relate to the making of the will. If it had any value as testimony, it was because it was in the nature of an admission on the part of Brant that his father was not capable of doing business in the absence of Brant. It will be remembered that there are other legatees than Brant. A like question was before this court in O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105), where it was held the testimony was inadmissible. This case was followed in Re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3). See, also, In re Ames, 51 Iowa, 596 (2 N. W. 408); Thompson v. Thompson, 13 Ohio St. 356; Forney v. Ferrell, 4 W. Va. 729.

It is said the court erred in admitting testimony of what was said by the testator both before and after making the will. We think this testimony was admissible under Harring v. Allen, 25 Mich. 505; Pierce v. Pierce, 38 Mich. 412; Haines v. Hayden, 95 Mich. 332 (54 N. W. 911, 35 Am. St. Rep. 566); Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566); Bush v. Delano, 113 Mich. 321 (71 N. W. 628).

It is insisted the court should have directed a verdict in favor of the proponent upon both branches of the case. We cannot agree with counsel in this contention, but think there was testimony which, if believed, would justify the setting aside of this will.

The other assignments of error have been considered. We do not need to discuss them, further than to say they are either not well taken or are not likely to occur again.

Judgment is reversed, and new trial ordered.

Carpenter, Montgomery, and Hooker, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Montgomery, J. Grant, J.

license: Public Domain

text:
    FARR v. CITY OF DETROIT.
    Equity — Street Improvement — Assessment—Jurisdiction.
    Complainant, whose property was benefited by street paving to the extent of the assessment, being charged with knowledge that, under the charter, the only method of compensating for the improvement was by an assessment on the property, having had such knowledge of the work as a person living on the street would naturally have, and having made no objection until after the completion of the work, was not entitled to the remedy in equity to arrest the proceedings of the public authorities and set aside the assessment, though the petition for the improvement was not signed by a majority of the frontage, giving the city council jurisdiction to proceed, and though complainant did not acquire the property until the work had been partly done. Grant, J., dissenting.
    Appeal from Wayne; Hosmer, J.
    Submitted November 4, 1903.
    (Docket No. 79.)
    Decided March 29, 1904.
    Bill by Merton E. Farr against the city of Detroit and Thomas M. Lucking, receiver of taxes, to restrain the collection of a paving tax. From a decree for complainant, defendants appeal.
    Reversed.

      Walker & Spalding, for complainant.

      Timothy E. Tarsney and John W. McGrath, for defendants.
   Montgomery, J.

In this case, in my view, the question presented is whether this complainant is entitled to the remedy which he seeks in a court of equity. The facts are sufficiently stated in the opinion of Mr. Justice Grant. The stipulation is that complainant had such knowledge of the work as a person living on said avenue would naturally have. There was testimony tending to show that this property was benefited by the improvement to the extent of the assessment. In addition to this, complainant was bound to take notice of the public statutes of the State, and that, under the charter of the city of Detroit, the only method of compensating for such improvements was by an assessment upon the property. He stood hy, and permitted this work to be done, and now seeks relief in a court of equity. The question is not whether there was a technical estoppel, — a question which my Brother Grant discusses, as it seems to me, unnecessarily. It may be true that the complainant is not estopped from asserting the invalidity of this tax. But it is quite another thing to say that he is entitled to come into a court of equity to demand of right the interposition of that court to arrest the proceedings of the public authorities. It is a question of remedy.

We think there can be no doubt that, under proper-legislative authority, the assessment of complainant’s land for the benefit derived from the improvement in question might be made. Lack of authority to make the assessment may be supplied by retrospective legislation when such authority might have been given in the first instance. 1 Cooley, Tax’n (3d Ed.), p. 510. Such a reassessment may be made when the first assessment was irregular, unauthorized, or even made under a defective law. Id. 514.

This question is not a new one in this State. In Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698), the rule was laid down that where a party, under such circumstances, stands by until his property is benefited by the improvement, he will not be permitted to go into a court of equity to be relieved of the tax. The same rule was laid down in Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161), and followed in Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583), and Fitzhugh v. City of Bay City, 109 Mich. 581 (67 N. W. 904). It is impossible to distinguish these cases from the present, unless it be assumed that this complainant, living upon the lot benefited, having such knowledge as a resident on the street would be likely to have, was not bound to know that an attempt was being made to charge this property with the value of this improvement. This he cannot assert without asserting ignorance of the law, the provisions of which render the property subject to assessment for the improvement.

The decree should be reversed, and the bill dismissed.

Moore, C. J., and Hooker, J., concurred with Montgomery, J.

Grant, J.

(dissenting). The bill in this case was filed December 22, 1900, to set aside an assessment against complainant’s property for paving a portion of a street in the city of Detroit. The charter requires a petition of a majority of the frontage on the part of the street to be paved before the common council is authorized to proceed. Such a petition is a condition precedent to the jurisdiction of the council. The petition in this case was presented to the council June 6, 1899, and, while apparently having a majority of the frontage, did not in fact have it. Apparently, the common council made no investigation to determine this jurisdictional question before proceeding.

The board of public works, on August 29, 1899, reported that it had entered into a contract with one Hanley to do this paving, and asked for the council’s approval and confirmation of the same. The council refused to confirm it. On September 19th the board reported another contract, which was more than $4,000 above the first one. This was rejected. On December 5,1899, the common council passed a resolution directing the board of public works to' advertise again for proposals for the paving. Pursuant to this resolution the board reported' on February 6, 1900, a contract, which the council approved February 27, 1900. The work was commenced the following spring, and was concluded during the summer. The assessment roll was transmitted by the board of assessors to the common council September 25, 1900, and approved and confirmed. When that roll was made, and what opportunities, if any, were given the taxpayers to make objections, do not appear. After the commencement of this suit, and before the hearing thereof, that assessment roll was rescinded by the common council, and another assessment roll, identical in every particular, except in name, with the former roll, was made, and confirmed by the common council on the 8th day of October, 1901, whereby the same assessment was made against the complainant’s lands. Complainant purchased the property in June, 1900, after the contract was let and the paving partly done.

The ordinance and contract provided that eight hours should be a day’s work; that $1.50 should be the minimum day’s pay for all labor; that no alien or nonresident of the city should be employed by the contractor; and that, for 10 years after the acceptance of the pavement, the contractor should keep it in good condition and repair, so that neither the city nor the property owners should be at any expense whatever, and that the pavement should, at the expiration of 10 years, be in good condition and repair. The above provisions of the ordinance were not inserted in the specifications nor in the advertisement for bids upon which bids for the contract for this work were made and received, but were inserted in the contract, and the bids and contract were made with reference to them.

Among the agreed facts is also the following:

“ That complainant lived on Grummond avenue when the petition was presented to the common council, when said street was ordered paved, when the contract was let, and up to the time that the bill in the cause was filed, and had such knowledge of the said work as a person living on said avenue would naturally have. ”

The case was heard upon pleadings and proofs in open court, and a decree entered for complainant, restraining the collection of the tax.

The petition, not containing a majority of the frontage, conferred upon the common council no authority or jurisdiction to proceed. We have, then, an attempt to make a municipal public improvement, and to assess the tax therefor upon abutting owners, when the proceeding is void ab initio for lack of jurisdiction. Auditor General v. Fisher, 84 Mich. 128 (47 N. W. 574), is on all fours with this case, and is conclusive of the law controlling it. The township board in that case decided that the petition was signed by a majority of the property owners. In fact, it was not. The court held that the township board obtained no jurisdiction in the case, and set aside the tax. It was also there insisted that the finding of the township board that a majority of the property owners had signed the petition was conclusive. It was held, in the absence of a statutory provision making the action of the township board conclusive, that such finding is not conclusive; that that fact could be inquired into by the court, and could be’ shown as a defense to an action to'collect the assessment, —citing authorities. To the same effect are Mulligan v. Smith, 59 Cal. 206, Canfield v. Smith, 34 Wis. 381, and Ogden City v. Armstrong, 168 U. S. 224 (18 Sup. Ct. 98). In the Fisher Case the owner of the land took no steps to contest the validity of the tax until he was summoned into court in the usual suit brought by the auditor general to foreclose the liens upon lands delinquent for nonpayment of taxes. In the present case the owner has not waited for.that suit, but has filed his bill to restrain the collection. The only difference between the two cases lies in the remedy.

The assessment and tax are void for another reason. The provisions of the contract limiting the hours of work, prescribing the rate of pay, and prohibiting the employment of alien and nonresident labor are absolutely void. They naturally tend to increase the cost of these improvements to the taxpayers, and to limit, and in some instances to prohibit, competition. A contractor living in the city, and employing only residents of the city, would not only have the advantage over a nonresident bidder, who employed nonresident workmen, but it would naturally prevent a nonresident or a resident contractor who employs nonresident labor from bidding at all. Besides, it is no legal concern of the common council how many hours contractors and their employés may agree to work, or where they may reside, or what pay they may agree upon. These are matters which, under the defendant’s charter, rest entirely with the employer and employé. The charter requires contracts to be let to the lowest responsible bidder. The council has no power to attach conditions which will deprive the taxpayers of the right to such contracts. Whether the legislature can confer upon the common council the power to impose any of these conditions is a question not before us. It is sufficient in this case to say that no such right is conferred. The following authorities condemn such provisions as void: City of Atlanta v. Stein, 111 Ga. 789 (36 S. E. 932, 51 L. R. A. 335); Adams v. Brenan, 177 Ill. 194 (52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222); Holden v. City of Alton, 179 Ill. 318 (53 N. E. 556); Fiske v. People, 188 Ill. 206 (58 N. E. 985, 52 L. R. A. 291); City of Cleveland v. Construction Co., 67 Ohio St. 197 (65 N. E. 885, 59 L. R. A. 775).

The learned counsel for the city do not contend that the city obtained jurisdiction, or that the contract is valid; neither do they contend that complainant is estopped to assert these jurisdictional defects when he is made defendant in a suit. The sole -defense made in the answer and brief is that the pavement is a substantial improvement, that his land is benefited to the extent of the assessment, and that he made no protest against the improvement, and <£ ought not now to be allowed to come into a court of equity and be relieved from the payment of said assessment.” In other words, it is insisted that equity closes its doors to him when he seeks to enter as a complainant, but opens them to his defense when he is brought in as a defendant. That he is not estopped in the proper suit to assert the .absolute invalidity of the proceedings and the contract for want of jurisdiction is established by a long line of decisions of this and other courts. Steckert v. City of East Saginaw, 22 Mich. 104; Twiss v. City of Port Huron, 63 Mich. 528 (30 N. W. 177); Whitney v. City of Port Huron, 88 Mich. 268 (50 N. W. 316, 26 Am. St. Rep. 291); Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466 (90 N. W. 277); City of Pontiac v. Axford, 49 Mich. 69 (12 N. W. 914); In re Sharp, 56 N. Y. 257 (15 Am. Rep. 415); Schumm v. Seymour, 24 N. J. Eq. 143; Canfield v. Smith, 34 Wis. 381; Starr v. City of Burlington, 45 Iowa, 87; Strout v. City of Portland, 26 Or. 294 (38 Pac. 126); Coggeshall v. City of Des Moines, 78 Iowa, 235 (41 N. W. 617, 42 N. W. 650); Mulligan v. Smith, 59 Cal. 206; Tone v. City of Columbus, 39 Ohio St. 281 (48 Am. Rep. 438).

In Canfield v. Smith — a case like this in its facts — the court say:

“The plaintiff is no more estopped from questioning their jurisdiction, upon the facts, than he would be from questioning the proceedings of a judicial tribunal which should attempt to deprive him of his property in a case where it had no jurisdiction.”

Want of jurisdiction in commencing proceedings and instituting suits at law or in chancery cannot be cured or waived by mere silence.

In Auditor General v. Railway Co., 116 Mich. 122 (74 N. W. 505), we held that the curative provision of the tax law did not relieve against defects which go to the jurisdiction of the body authorizing the levy. The same is held in Township of Caledonia v. Rose, 94 Mich. 216 (53 N. W. 927).

There is a class of cases holding that, where the proceedings are void, those who invoke the law by petition or by expressly sanctioning it are estopped. Motz v. City of Detroit, 18 Mich. 494; Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Tone v. City of Columbus, supra. See, also, Hall v. Slaybaugh, 69 Mich. 484 (37 N. W. 545).

In Walker v. City of Ann Arbor, 118 Mich. 251 (76 N. W. 394), we held that jurisdictional defects could not be ignored without doing violence to established principles, where it appeared that the complainant had no knowledge ■of the proceedings until after they were taken.

The sole question, therefore, is, Has the conduct of the complainant been so unclean and unjust that equity closes its doors to him when seeking relief from a tax absolutely void for want of jurisdiction ? He purchased the land after the entire proceedings were completed, the contract let, and the work had proceeded to partial completion. It is not shown that his grantor had any knowledge of the proceedings, or that he even lived in the city. He is not, ■therefore, chargeable with knowledge on the part of his .grantor. Complainant alleged and proved that the common council obtained no jurisdiction whatever, and that the contract contained provisions which are ultra vires, and rendered it void. He thus made a case entitling him to the usual relief in equity, unless he was guilty of conduct which estopped him to seek that relief. The burden was then cast upon the defendant to show that complainant came into court with unclean hands. It recognized this burden in its answer. It failed to produce any evidence to support it, except that complainant lived on the street, and had such knowledge as such a person would naturally have. In the purchase of this property, was not the complainant entitled to the presumption that the common council had acquired jurisdiction to perform this work, and that they had made a valid contract ?

It is said in Strout v. City of Portland, supra, where the distinction between a case where jurisdiction has been acquired and where it has not been acquired is recognized:

“The property owner is not the legal adviser of the •common council, which usually has an attorney for this purpose. He is not required, to interfere with the mode adopted to acquire jurisdiction; nor is he expected to object or protest after the proper initiatory steps have been taken, except to the mode or manner of the improvement, or some intermediate order or proceeding of the common council which injuriously affects his property,” — citing with approval Canfield v. Smith, supra.

Whether the complainant lived on the portion of the street where the work was progressing, or at °a distance from it, or whether he passed the improvement during that time, we are not informed. He was not chargeable with notice of the contents of this contract. It was not of record. Neither was he chargeable with notice that the common council acquired no jurisdiction by the petition. There is nothing in this record to show that he knew under what provisions or conditions or contract this work was done. There is no evidence that any assessment was made prior to the last of September, 1900, or that complainant or his grantor had any opportunity to appear and protest at any stage of the proceedings. He filed this bill within three months thereafter. The city has not been prejudiced by the delay.

We have in several cases denied the taxpayer the right to bring his suit in equity where he had full knowledge of the facts, and in many cases participated in them, and had ample opportunity to contest, had he chosen to do so, and yet stood by until he had reaped the advantage of the improvement. Some of these are drain cases, where the statute provides a special remedy, and fixes a limitation to the right to bring the action. We have also held that laches may defeat the right to maintain such a bill. Tuller v. City of Detroit, 126 Mich. 606 (85 N. W. 1080); Auditor General v. Melze, 124 Mich. 285 (82 N. W. 886); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161); Township of Walker v. Thomas, 123 Mich. 290 (82 N. W. 48). Many other cases might be cited. In my opinion, they do not control this case, where the entire proceedings were complete and the work was partly done before complainant obtained any interest in the property, or did or could do anything to estop him from seeking relief in a court of equity. Whether this denial to a party of the right to seek affirmative relief in equity applies to cases absolutely void for want of jurisdiction, or only to irregularities which would be held fatal if prompt action were taken, I find it unnecessary to determine. Chief Justice Cooley, in the case of Albany & Boston Mining Co. v. Auditor General, 37 Mich. 391, said: “Equity will not interfere to restrain the collection of the public revenue for mere irregularities.”

It is insisted, however, that the evidence shows that complainant’s property has been benefited to the full amount of the cost of the pavement assessed against him, and that, therefore, he must pay it, under Act No. 472, Local Acts 1901. This provision will be found on page 710. The act provides that, in any proceedings theretofore or thereafter made for the purpose of paving any street, no assessment shall be vacated or held invalid by any court on account of any defect or omission in the proceedings, unless the person complaining thereof shall be required to pay such sum or sums as said court may find the property shall have been benefited by the making of such improvement. This provision cannot apply to cases where the proceedings are absolutely void for want of jurisdiction. It might as well be claimed that the council could, of its own motion, order a street paved, and then say to the taxpayers, “You must pay it, for your property is benefited to that amount.” Whether this act would apply to cases prior to its enactment is doubtful, but, as it is not argued, we do not pass upon it.

Decree should be affirmed.

Carpenter, J., took no part in the'decision.


author: Grant, J. Hooker, J.

text:
    NORTHWESTERN MUTUAL LIFE-INSURANCE CO. v. AMOS.
    Equity Jurisdiction — Insurance Policy — Cancellation — Fraud.
    A bill to compel the surrender of a life-insurance policy for cancellation, alleging that the policy was never delivered, but was handed to the insured for a temporary purpose, and was found among his papers at his death; that the premium was never paid nor credit extended; that defendant, the beneficiary, after the death of the insured, induced an internal revenue officer to affix and cancel the necessary stamps without any showing authorizing him so to do; and that the possession and attempted enforcement of the policy are a fraud upon complainant, — contains no specific allegations of fraud, and does not state a case for equitable cognizance. John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337, distinguished. Hooker, J., dissenting.
    Appeal from Wayne; Brooke, J.
    Submitted November 17, 1903.
    (Docket No. 122.)
    Decided March 29, 1904.
    Bill by the Northwestern Mutual Life-Insurance Company against Lavern Amos for the surrender and cancellation of certain policies of insurance. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    Complainant has appealed from a decree sustaining the .demurrer to complainant’s bill in equity. The bill alleges complainant’s due incorporation; that on December 30, 1899, one Walter Gf. Amos, husband of the defendant, applied to the company for a policy of insurance for $2,000, the annual premium being $62.66; that on the same day he applied for another policy of $3,000, the annual premium to be $93.99; that his wife, the defendant, was the beneficiary named in said policies; that the complainant prepared the policies at its home office in Milwaukee, placed the requisite internal revenue stamps in small envelopes, to be attached to said policies and canceled when the policies were delivered; that said stamps were not attached and canceled, because the premiums had not been paid, and the policies were not valid until paid; that each policy contained the .following provision: “This policy shall not take effect until the first premium shall have been actually paid while the insured is in good health;” that said policies, with the revenue stamps in the small envelopes pinned to them, were sent by mail to its general agent at Chicago; that said general agent delivered them to one Ellis, who had taken the applications, ■and who was a subagent of one Cole, who was soliciting insurance for the complainant.
    That said Walter G. Amos was employed as the Western agent of the Murphy Iron Works of Detroit, hadan office in Chicago, was receiving a salary of $1,200 per year, •and resided with his family at Morgan Park, Chicago; that his office was in the Bedford building, on Dearborn street, about the business center of the city; that Amos made applications for two policies, because he was uncertain whether he should be able to pay the premiums upon the $2,000 or the $3,000 policy; that his income was not sufficient to enable him to carry either of said policies and. defray his other expenses, but that he expected his salary to '.be raised, or to secure other employment.
    That said policies were handed to said Amos for inspection only, and were left with him to examine their terms; that he did so, and afterwards returned them to Ellis; that afterwards an agent of another company solicited Amos for insurance; that Amos again desired to. inspect the policies, and obtained them from Ellis for that purpose, the internal revenue stamps being still in the envelopes and pinned to the policies; that said Ellis and Cole from time to time requested said Amos to accept the policies and pay the premiums; that Amos never, did so, and never decided to accept the policies, never paid the premiums or any part •thereof, and received no credit or extension of time, but kept said policies for the sole purpose of inspection; that he kept the policies in a desk in his office in the city, to-which desk others had access.
    That on March 21, 1900, said Amos was killed; that these policies were then found in the office of the Murphy Iron Works, in Chicago, and came into the possession of the defendant; that on December 26, 1900, one of defendant’s attorneys presented said policies to the collector of internal revenue at Detroit, with the stamps still unattached, and induced said collector to attach and cancel them, and indorse thereon the following certificate:
    “I.certify that the revenue stamps upon this policy were taken from the attached envelope and affixed and canceled by me, under the provisions of section 13 of the war revenue act of 1898, upon request of Lavern Amos, made December 26, 1900.”
    The bill then further alleges that the stamps were not omitted from said policies by mistake or inadvertence; that no showing of such fact was made to the collector,, and that the collector’s act was without authority; that on January 9,1901, defendant commenced a suit at law on said policies in the circuit court for the county of Wayne; that said suit was duly transferred to the circuit coiirt of the United States for the Eastern district of Michigan, Southern division, January 28th; that testimony was taken and the case ready for trial, when defendant, plaintiff in that suit, submitted to a nonsuit, with leave to move to set It aside within 20 days; that no motion was made to set the same aside, and on December 31,1902, she commenced suit in the Wayne circuit court upon the $2,000 policy, which suit is still pending. The bill then avers that said policy was never delivered; that, the premium was never paid; that no credit was ever given; and that the possession and attempted enforcement of said policy by said defendant is a fraud upon the complainant’s rights. The prayer of the bill is that said policies be surrendered and canceled.

      Thomas A. E. Weadock, for complainant.

      John W. McGrath, for defendant.

       See 117 Mich. 518 (76 N. W. 9).

   Grant, J.

(after stating the facts). The chief grounds for the demurrer are (1) that the bill shows that the complainant has a complete and adequate remedy at law; (2) that it does not allege that either Walter G. Amos •or the defendant was guilty of any fraud respecting the procurement or possession of said policies.

Certainly no fraud is charged upon Mr. Amos. Neither is any fraud charged upon Mrs. Amos in obtaining possession of them. They were found among his papers in the safe of his employer, but over which he had entire control. ■She certainly had the right to assume that they were valid, and there is no allegation of any knowledge on her part that they are not valid. It is difficult to see how, under these circumstances, any fraud could be alleged or proved.

The complainant in its bill seems to recognize that, up to the time of the receipt of these policies by the defendant, it can neither charge nor prove any fraud. It rests upon the allegation “that the possession and attempted enforcement thereof are a fraud upon the complainant’s rights.” So the attempted enforcement of any claim not founded upon legal right is a fraud upon the other’s rights, but courts of law are the proper forum in which to determine the legality of the claim. The allegation is based upon the preceding statement of facts, which in 'themselves do not show fraud.

Under the facts set up in the bill, the policies were never delivered, and were therefore never in force. Counsel relies upon John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566), Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086), and Edwards v. Michigan Tontine Investment Co., 132 Mich. 1 (92 N. W. 491). Those cases have no application here. The basis of the equity jurisdiction there sustained was fraud, — active fraud in the procurement of the policies, or the renewals thereof after they had lapsed. The sole question in this case is one of fact, viz., Were .the policies delivered and the premiums paid, or their payment waived? The doctrine in the Dick Case will not be extended to include cases of this character, where the questions involved are purely legal, no fraud is charged, and there is no possible reason for the interposition of a court of equity. See Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209).

The decree is affirmed, with costs.

Moore, C. J., Carpenter and Montgomery, JJ., con- • curred with Grant, J.

Hooker, J.

(dissenting). The bill of complaint in this cause shows that the policy of insurance of which cancellation is sought came into the possession of the defendant, and was sued upon under circumstances which made such suit and a claim of liability fraudulent. The suit was afterwards removed to the federal court, and, after taking proofs, the plaintiff submitted to a voluntary nonsuit. Subsequently a second suit was begun in the Wayne» circuit court. If the bill states the truth, a paper invalid, for want of delivery, and not a perfect instrument for want of revenue stamps, was, without right, given the' appearance of a contract binding upon the complainant by procuring the revenue stamps to be affixed by a federal official. Had the defendant done this with knowledge of the facts, no one would doubt that it was a fraudulent act. We do not know that it was not so done. It is none the less fraudulent in law if she did it in good faith. The jurisdiction of a court of equity to cancel the policy under the circumstances is, in niy opinion, as clear as in the other. The cancellation of instruments is not limited to-cases of actual fraud, if it is limited to cases of fraud, which I am not prepared to hold.

But the bill charges actual fraud. As said in complainant’s reply brief:

“Complainant’s bill is not filed against tbe deceased, nor against his estate. We do not claim, nor is it necessary for us to claim, that the deceased, Mr. Amos, was guilty of any fraud. We do not think he was. It is the defendant in this case who is guilty of an act of fraud in asserting title to an insurance policy which she must necessarily know was not a valid one, which was never delivered to her, upon which she knew, before she commenced her last case, that the premiums had never been paid, and the policy had never been delivered. It is as much an actual fraud on her part to claim this policy, to have it surreptitiously and improperly stamped, to bring suit upon it, as if she had casually found the policy in the office of the company at Milwaukee, which had not been paid for nor delivered, and she had asserted title to it. That is the act of fraud, and fraud is a conclusion of law in this case, of which the defendant in this case was guilty.”

This question must turn on the sufficiency of the bill, arising, as it does, upon demurrer. The bill shows that the policy never was delivered, and that no premium was paid, that it was procured by the deceased for the purpose of examination merely, and that he had no authority to affix the revenue stamps, and claim it to be a valid policy, without accepting it and paying the premium. For him to have affixed the stamp under other circumstances, and then claimed it to be a valid contract, would have been a fraud, and clearly within the jurisdiction of chancery relief, under its jurisdiction relating to cancellation. This he never did. The bill shows that this policy was presented to the collector of internal revenue, who affixed and canceled the stamps, under section 13 of the revenue act of 1898 (Act June 13, 1898, chap. 448, 30 Stat. 454,2 Supp. Rev. Stat. p. 786 [U. S. Comp. Stat. 1901, p. 2296]), thereby giving the instrument the appearance of a valid contract, which in fact it was not. This could be lawfully done upon a showing that the omission to stamp was by reason of accident, mistake, inadvertence, or urgent necessity, which could not have been the fact if the allegations of the bill are true. Not only was the contract invalid for want of delivery, but it would have been invalid under the act cited (section 13) had it been delivered without stamping, and it was a fraud upon the complainant to procure such cancellation, and to give it the appearance of a contract, when it was one never made. Under such allegations chancery has jurisdiction, and it does not depend upon what the proofs may show. The bill states a case of fraud, and jurisdiction must depend upon that. This question arises upon demurfer, whereby the allegations of the bill are admitted. Edwards v. Michigan Tontine Investment Co., 132 Mich. 1 (92 N. W. 491). It is possible that a hearing upon the merits may show these allegations to be unsupported by the evidence, as was the final result in John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566).

If there is jurisdiction in equity on the ground of cancellation, it is not limited to cases where a defense might not be made in a court of law. The case is substantially on all fours with the case of John Hancock Mut. Life-Ins. Co. v. Dick, supra. In England the authorities are uniform that, in cases of fraud, the jurisdiction of equity is not dependent upon the want or inadequacy of a legal remedy. London, etc., Ins. Co. v. Seymour, L. R. 17 Eq. Cas. 85; Hoare v. Bremridge, L. R. 14 Eq. Cas. 522; Bartlett v. Salmon, 6 De Gex, M. & G. 33; Jennings v. Broughton, 5 De Gex, M. & G. 126. In Massachusetts the courts have adopted the English rule, in consequence of a change whereby the statute has conferred full equity jurisdiction, under which its courts previously held otherwise. Holden v. Hoyt, 134 Mass. 181; Billings v. Mann, 156 Mass. 203 (30 N. E. 1136); Nathan v. Nathan, 166 Mass. 294 (44 N. E. 221); Stratton v. Hernon, 154 Mass. 310 (28 N. E. 269); Hurd v. Turner, 156 Mass. 205, note (30 N. E. 1137); Emerson v. Atkinson, 159 Mass. 361 (34 N. E. 516). The following cases, among others, sustain the jurisdiction in this country: Domingo v. Getman, 9 Cal. 97; Buxton v. Broadway, 45 Conn. 540; Ferguson v. Fisk, 28 Conn. 501; Porter v. Jones, 6 Cold. 313; Town of Glastenbury v. McDonald’s Adm’r, 44 Vt. 450.

The remedy is a concurrent one, and to hold that it depends upon the inadequacy of the legal remedy is to abridge the equity jurisdiction, which our Constitution and laws guarantee as unqualifiedly and effectively as they do legal remedies and the right to trial by jury, as we held in John Hancock Mut. Life-Ins. Co. v. Dick, supra. The court should as carefully guard and protect this jurisdiction as any other. Edsell v. Briggs, 20 Mich. 433; Edwards v. Michigan Tontine Investment Co., 132 Mich. 1 (92 N. W. 491), and cases cited; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438). See, also, the following cases: Wheeler v. Bank, Har. Ch. 449, 456;

Wales v. Newbould, 9 Mich. 45; Wright v. Hake, 38 Mich. 525; Wyckoff v. Sewing-Machine Co., 43 Mich. 309, 312 (5 N. W. 405); Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); U. S. Life-Ins. Co. v. Cable, 98 Fed. 761, 39 C. C. A. 264. In Tompkins v. Hollister, Morse, J., said:

“And it makes no difference that she [the complainant] may have an adequate remedy at law. Equity has concurrent jurisdiction in cases of fraud, and she can enforce her rights in this suit. Adams, Eq. 176; Willard, Eq. Jur. 145.”

In Brown v. Kalamazoo Circuit Judge, supra, Campbell, J., said:

“The right to have equity controversies dealt with by •equitable methods is as sacred as the right of trial by jury.”

And again:

“ The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and, under our Constitution, must remain vested where it always has been vested heretofore.”

Sherman v. Stove Co., 85 Mich. 169, 176 (48 N. W. 537); Chicago, etc., R. Co. v. Miller, 91 Mich. 166 (51 N. W. 981); Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554); Cogswell v. Mitts, 90 Mich. 353 (51 N. W. 514); Fitzmaurice v. Mosier, 116 Ind. 363 (16 N. E. 175, 19 N. E. 180, 9 Am. St. Rep. 854); Fuller v. Percival, 126 Mass. 381; Hardy v. Brier, 91 Ind. 91; Huston v. Schindler, 46 Ind. 38; Huston v. Roosa, 43 Ind. 517; Garrett v. Railroad Co., Freem. Ch. (Miss.) 70; Merritt v. Ehrman, 116 Ala. 278 (22 South. 514); Glass v. Haygood, 133 Ala. 489 (31 South. 973);, Bishop v. Thompson, 196 Ill. 206 (63 N. E. 684); Clay v. Hammond, 199 Ill. 370 (65 N. E. 352, 93 Am. St. Rep.. 146).

The decree should be reversed, with leave to defendant to answer within 30 days after the entry of this order.


author: Montgomery, J.

text:
    FISHER v. HAMPTON TRANSPORTATION CO.
    1. Trusts — Consideration—Enforcement.
    A trust without consideration moving from the cestui que trust will not he enforced, either at law or in equity, unless executed or fully declared, to take effect in prcesenti.

    2. Same — Bankrupt’s Estate — Sale—Contract.
    An agreement between complainant, a bankrupt, who had parted with his property interests, and defendant, that at the bankrupt sale, at which complainant was not to bid, defendant should bid in the interest of the bankrupt’s estate in certain properties, and hold the same in trust for the payment of certain obligations, after payment of which the property was to be assigned to whomever complainant should designate, was without consideration, and was not an executed trust, but, in effect, a promise to make a gift in futuro.

    3. Bankrupt Sale — Competition—Public Polioy.
    An agreement between complainant, a bankrupt, and defendant, that complainant should not bid at the bankrupt sale, made after bids had already been offered and the sale was still open, was clearly an effort to thwart competition, and void upon grounds of public policy.
    4. Equity — Invalid Contract — Pleading.
    Where, in a proceeding in equity, it appears from the complainant’s own showing that a contract which he seeks to enforce is against public policy, relief will be denied him, although the invalidity of the contract is not pleaded by defendant.
    Appeal from Saginaw; Snow, J.
    Submitted January 6, 1904.
    (Docket No. 7.)
    Decided March 29, 1904.
    Bill by Spencer O. Fisher against the Hampton Transportation Company, Benjamin Boutell, and others for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      McDonell & Duffy, for complainant.

      T. A. El. & J. C. Weadock (Weadock & Purcell, of counsel), for defendants.
   Montgomery, J.

In the year 1895, and for some years prior thereto, the defendant the Hampton Transportation Company was and had been a corporation, duly organized and existing under the laws of the State of Michigan, with a capital stock of $50,000, represented by 1,000 shares of the par value of $50 per share. Its sole property was the steamer Eddy. Complainant, at the time of the bankruptcy proceedings hereinafter referred to, was the owner of stock in this corporation, and was also the owner of four-ninths of a vessel known as the Lizzie Madden.

On the 26th of June, 1899, complainant filed a voluntary petition in bankruptcy, and in his petition alleged that-he was the owner of one-half of the stock of the Hampton Transportation Company and four-ninths óf the Lizzie Madden. As a matter of fact, however, Fishpr- was the owner of but four-tenths of the stock of the transportation company, one-tenth having been donated by him to his daughter at the time of the organization of this corporation, and thereafter retained by her. Boutell owned a large interest in the corporation, and claims to have ad'-, vanced to the company money in excess of the amount Fisher advanced. There was also owing by the Hampton Transportation Company, upon notes indorsed by both Fisher and Boutell, $29,000, to James S. Galloway,'and the stock of the corporation stood pledged to Mr. Galloway as security for this sum.

The assets of the bankrupt were advertised for sale, and the sale opened on the 2d of October, 1899. At this sale both complainant and defendant Boutell were bidders upon the complainant’s interest in the Lizzie Madden and the stock in the Hampton Transportation Company. The bid on the latter item exceeded $1,200, and the sale was, on request of Mr. Fisher’s representative, adjourned to October 5th.

On the morning of October 5th, previous to the sale of these vessel interests, Mr. Shepard, representing Mr. Fisher, Mr. ’Weadock, representing Mr. Boutell, and both Mr. Boutell and Mr. Fisher, met at the court-house, where the sale was to proceed, and entered into an arrangement. The parties are not agreed precisely as to what that arrangement was. The complainant contends that the agreement was that Mr. Boutell should bid in the interest of the bankrupt estate in these two vessel properties, and hold the same in trust for the purposes, first, of repaying the purchase price, second, of paying the claim held by the Saginaw Bay Towing Company (in which Mr. Boutell was interested) against the firm of Turner & Fisher up to the amount of $25,000, or if the Eddy (which comprised the whole property of the Hampton Transportation Company) should sell for more than $65,000, the excess should also be applied to the indebtedness of Turner & Fisher to the Saginaw Bay Towing Company up to the amount of $5,000 more; that the earnings of the boats should be applied towards the Turner &' Fisher indebtedness at the rate earnings of the Fisher interests in the boats, to be applied $12,500 out of the first year’s earnings, and the remainder out of the second year’s earnings, in case the Eddy was not sold; and that, when these obligations were paid off, the property was to be assigned to whomsoever Fisher should designate.

The defendant disputes this agreement in some of its features. He denies that there was any agreement for trusteeship. He denies that there was an agreement to transfer the property at any time to Fisher, but insists that what he desired was to close out the property, and he did offer, in case he succeeded in doing so, to pay certain portions to Fisher, but that this was amere gratuity; that the offer was made upon the theory that Fisher held a one-half interest in the Eddy, and nQt a four-tenths interest, and that, as a matter of fact, the defendant has since been required to account to complainant’s daughter, Grace E. Goodwin, for a one-tenth interest in the Eddy and her earnings, and has paid the same in excess of all that he should be required under the terms of his agreement to pay to complainant. The defendant also stands upon legal defenses, and insists that, at most, the entire arrangement was on his part a promise to make a, gift to Mr. Fisher in the future; that there was no consideration passed to defendant Boutell which would support an executory trust; that the only conceivable consideration which might be suggested is that, because of this agreement, Fisher refrained from further bidding at the sale; and that, if the contract is based upon such a consideration, it is void upon grounds of public policy. The complainant, on the other hand, insists that there was a valid trust created. And this involves an inquiry as to what constitutes an executed trust.

Starting with the proposition that Fisher paid no consideration, it would seem to be clear, from the authorities, that before a trust could be enforced, either at law or in a court of equity, it must be an executed or fully declared trust, to take effect in jorcesenti. It seems also clear that in the present case, apart from the consideration furnished by refraining from further bidding, there was no actual consideration. At this time Fisher had parted with all title to the propertyin question. The title rested in his assignee in bankruptcy. He had no possible interest in the property. Whatever should come tó him would be a mere gratuity, unless he could succeed in himself becoming the purchaser, and by this means make a profit on the stock or vessel. He could pass nothing to Boutell. The title had already passed to the assignee in bankruptcy.

It is difficult, then, to distinguish the transaction from a voluntary promise on the part of Mr. Boutell to buy in this property, and, if he should succeed in making a profit out of it, give to Mr. Fisher a portion of these profits. We do not understand such an arrangement to amount to an executed trust. It is a promise to make a gift in futuro, and partakes none the less of that character because it is made conditional upon a question of profits. As was said by Mr. Justice Long, in Hamilton v. Hall's Estate, 111 Mich., at page 296 (69 N. W. 485):

“The mere declaration of an intention or purpose to create a trust, which is not carried out, is of no value, and a mere agreement or statement of an intent to make a gift in the future is not sufficient. It must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trust itself.”

See, also, Clay v. Layton, 134 Mich. 317 (96 N. W. 458), and Levi v. Evans, 57 Fed. 677, 6 C. C. A. 500, which latter case contains a full and able discussion of the subject.

Was there a valid consideration for this agreement ? It is well settled that any agreement based upon a consideration of an agreement to refrain from bidding at a sale of goods is void upon grounds of public policy. See Atlas Nat. Bank v. Holm, 71 Fed. 489, 19 C. C. A. 94; Piatt v. Oliver, Fed. Cas. No. 11,114; Barton v. Benson, 126 Pa. St. 431,(17 Atl. 642,12 Am. St. Rep. 883); Dudley v. Odom, 5 S. C. 131 (22 Am. Rep. 6); Gardiner v. Morse, 25 Me. 140; Boyle v. Adams, 50 Minn. 255 (52 N. W. 860, 17 L. R. A. 96); Camp v. Bruce, 96 Va. 521 (31 S. E. 901, 43 L. R. A. 146, 70 Am. St. Rep. 873).

It is suggested by complainant’s counsel that the above rule, rendering void contracts entered into for the purpose >of suppressing public competition at sales, does not prevent two persons from combining for honest purposes to purchase property, where such persons propose to hold .and own the property together, and afterwards divide it, even though the effect of the purchase happens to be that, ■as between the parties, competition is suppressed; and there are cases in which parties, in advance of a sale, have joined to become bidders, and which hold that such an agreement is not void, and, if such is the true purpose •of the arrangement, courts will sustain the transaction. But we think these cases do not aid the complainant here. Here the bids had already been made, the sale was still open, and a. plainer case of attempt to prevent competition •could hardly be imagined.

But it is said that this defense was not pleaded. We think such defense need not be pleaded, but that, whenever the court is asked to enforce a contract which, upon the complainant’s own showing, is against public policy, the relief will be denied. Coppell v. Hall, 7 Wall. 542; Meyer v. Farmer, 36 La. Ann. 785.

The circuit court dismissed the bill, and the decree will be affirmed, with costs.

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

      See Goodwin v. Hampton Transportation Co., 133 Mich. 229 (94 N. W. 729).


author: Hooker, J.

text:
    SMITH v. PERE MARQUETTE RAILROAD CO.

    1. Railroads — Negligence—Backing Train Across Street.
    It is negligence to back a railroad train across a street without, signals or lookout.
    2. Same — Contributory Negligence — Question eor Jury.
    Where plaintiff, while walking between two railroad tracks within the limits of a highway, along one of which tracks a train was passing, was struck by a train which was being backed upon the other track, without lookout or signals, and which he had failed to see, though looking back not long before, the question of his contributory negligence was for the jury.
    Error to Montcalm; Davis, J.
    Submitted January 15, 1904.
    (Docket No. 207.)
    Decided March 29, 1904.
    Case by George Smith against the Pere Marquette Railroad Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Charles L. Barden and Earl E. Phelps (C. B. Barden, of counsel), for appellant.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellee.

       Rehearing denied June 18, 1904.

   Hooker, J.

The Grand Rapids & Indiana Railroad depot at Howard City is situated midway between Cass street, on the west, and Ensley street, on the east, and Williams street, on the north, and Shaw street, on the south. The main line ran nearly north and south at this point, passing the depot on the west side. A side track left the east side of the main track of the Grand Rapids & Indiana south of Shaw street, and passed the depot on the east side, and a short distance southeast of the depot was connected by switch with the main track of the Pere Marquette, thus making a transfer track between the two railroads. Shaw street was the principal street of the village, and people were in the habit of walking between the two Grand Eapids & Indiana tracks from Shaw street to the depot. The accompanying plat shows the situation.

The plaintiff was a section hand employed by the Grand Rapids & Indiana Company, and on the day of the accident had worked on the track north of Williams street. About half past 11 a. m. he started to go to his home, situate on -the east side of Ensley street, south of Shaw street. He walked down the track, and was injured six feet or more south of the north line of Shaw street, in the highway. A freight train stood on the Grand Rapids & Indiana main track, with the engine near the depot, and the rear end of the train south of Shaw street. As he and his companion walked by the side of this train, it started north, and the plaintiff stepped away from it towards the spur or side track, and was soon after struck by defendant’s train, which had come over the transfer track, and was backing south on the switch. A companion following him was not struck. A verdict was directed for the defendant, and plaintiff has appealed.

At the time plaintiff was struck, he had been walking upon the right of way of the Grand Rapids & Indiana road, but had crossed the line of Shaw street, where he had a right to travel. The train which struck him was backing up without a lookout, and. without ringing the bell or giving any kind of signals, according to some of the testimony. The plaintiff had looked back to see if a train was coming upon that track, but how long before he was struck is not positively shown; the witnesses differing somewhat. The freight train would naturally distract his attention. It was negligent for defendant to back its train over Shaw street without signals or lookout, and we cannot say that the conduct of the plaintiff was or was. not contributory negligence, under the circumstances. Counsel cite several cases where we have felt justified in saying that the undisputed facts showed conclusively that

the plaintiff was negligent. The evidence shows that he was not walking on the track, and an attempt at vigilance; ;and those facts, together with the surrounding circumstances, have much to do with the degree of his caution. See Palmer v. Railroad Co., 56 Mich. 1 (22 N. W. 88); Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278). Under the circumstances, we think the cause should have been submitted to the jury.

The judgment is reversed, and a new trial ordered.

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


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    FERRIS v. JOHNSON.
    1. Chattel Mortgages — Promissory Notes — Variance—Maturity op Debt.
    Where, as respects the maturity of the debt; there is irreconcilable conflict between the terms of promissory notes and a chattel mortgage given as collateral to secure their payment, the notes constitute the primary contract, and are controlling.
    2. Forbearance to Sue — Consideration—Payment op Interest.
    Payment, after maturity, of interest on an interest-bearing ' note, is not a sufficient consideration to support a promise of forbearance to sue.
    S. Same — New Contract.
    A promise to pay interest for a definite time, or at least for some period, as a consideration for an agreement to forbear suit, must be deducible from the writing or the conversation constituting the new contract.
    4. Premature Foreclosure — Replevin—Damages.
    Where plaintiffs, claiming under their mortgage, took possession of the mortgaged chattels by a writ of replevin a few days before they were entitled to do so, the situation of the property, the interest of the parties, and plaintiffs’ right to possession after default, were circumstances bearing on the question of damages to the mortgagors; and it was error to permit the jury to award them damages for the value of the use of the property after the time when, under the terms of the mortgage, plaintiffs were lawfully entitled to its possession.
    Error to Wexford; Chittenden, J.
    Submitted February 2, 1904.
    (Docket No. 64.)
    Decided March 29, 1904.
    Replevin by Egbert F. Ferris and Guy L. Champney, copartners as Ferris & Champney, against Charles W. Johnson and William McPherson. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Patchin & Orotser, for appellants.

      Fred C. Wetmore, for appellees.
   Hooker, J.

The plaintiffs have appealed from a judgment in replevin in favor of defendants for return of property and $500 damages for its detention.

Plaintiffs sold to the defendants an engine, taking four-notes, secured by a mortgage upon the same and upon two teams and harnesses; said teams not being owned jointly by defendants, but in severalty, each owning a team. The plaintiffs demanded the property, and, being refused, replevied it, and sold it at foreclosure sale. The defendants claim that the seizure was made before the first note became due, basing such claim upon an alleged agreement to extend the time for 15 days if defendants would pay the interest on said note on the second day of grace, and one-half of the principal of said note within 3 days; their testimony being that the property was taken before said 3 days expired. This was contradicted by plaintiffs’ testimony, but this raised a question of fact, if the agreement constituted a valid contract of extension. The court permitted the recovery of $500 damages for the detention of the teams and other property, and it is claimed that this, was error, for the reason that the teams were owned in severalty; the court refusing to instruct the jury that defendants could not recover damages for such detention of the horses. A judgment was rendered for the return of the property and $500 damages.

The propriety of leaving to the jury the question of ■extension of time depends upon the construction to1 be given to the notes and mortgage. The notes bore date July 26, 1901, and the first one, upon which the case depends, was payable, according to its terms, in 60 days; the second in four months; the third and fourth, October 1, 1902, and December 1, 1902, respectively. The chattel mortgage was conditioned for the payment of the debt “according to the terms-oí four certain promissory notes,” etc., “as follows: One note dated July 26,1901, •due September 26, 1901, for $75; one note dated July 26, 1901, due November 26, 1901, for $75; one note dated July 26, 1901, due October 1,1902, for $75; one note dated July 26, 1901, due December 1, 1902, for $75.” Upon September 28th, which was Saturday, one of the defendants went to Traverse City and asked an extension of 30 days upon the first note. He claims that plaintiffs :said that they would give such extension for 15 days. Defendant then asked them to figure up the interest “on the notes,” which they did, and it amounted to 88 cents, which was paid. Eighty-eight cents was scant interest upon the first note for 60 days, so that there was no consideration .for this extension, unless this interest was paid before the maturity of the note. If the terms of the note are to govern, rather than the date stated in the mortgage, the 3 days of grace expired September 27th, making the payment of interest after the note was due; but, if the mortgage fixes the time, the 29th would be the last day of grace, but for its being Sunday.

While a mortgage may modify the contract, an irreconcilable contradiction by the mortgage of the terms of the note cannot be allowed to affect the contract as shown in the note. The indebtedness is represented by the notes, which constitute the primary contract. To these the mortgage is collateral, and to them it refers for the purpose of identification of the debt and contract, performanee of which is secured by the mortgage. Mistakes in. such descriptions are not necessarily fatal. See 1 Jones, Mortg. § 71; Ætna Life-Ins. Co. v. Finch, 84 Ind. 301; Powers v. Patten, 71 Me. 583; Fetes v. O’Laughlin, 62 Iowa, 532 (17 N. W. 764); Williams v. Bank, 72 Mo. 292; Aull v. Lee, 61 Mo. 160; Riggs v. Armstrong, 23 W. Va. 760; Porter v. Smith, 13 Vt. 492; Van Wagner v. Van Wagner, 7 N. J. Eq. 27.

The note being due on the 27th of September, payment of interest already earned and due would not support a promise1 of forbearance to sue,.which would be a nudum pactum. Shayler v. Giddins, 122 Mich. 660 (81 N. W. 552), and cases cited. It is only upon the theory that a party is not bound by such a promise that a surety is not discharged when the promise has no valid consideration to rest upon. See Olmstead v. Latimer, 158 N. Y. 313 (53 N. E. 5, 43 L. R. A. 685); Abbott v. Doane, 34 L. R. A. 33, notes, (s. c., 163 Mass. 433, 40 N. E. 197).

The court erred in instructing the jury that they must-find a verdict for the defendants if the parties agreed upon, an extension, for no such binding contract was made, under the most favorable view to defendants that can be. taken of this record. . If it be conceded that an agreement-to pay interest for a definite time is a sufficient consideration for a promise to forbear, as many cases hold, a promise-to pay such interest for a definite time, or at least for some-period, must bededucible from the writing or conversation constituting the new contract. The testimony in this case contains no affirmative evidence of that fact, even if a promise to pay interest at all can be inferred from the request for an extension. Defendants’ request was for an extension for 30 days. It is said to have been granted for 15, but it was under circumstances that tend to show that plaintiffs were exacting no promise to withhold payment- and pay interest for 15 days, and which show, on the contrary, that both parties must have understood that the-money could be paid and would be accepted at any time. It was not, therefore, a valid contract. See Bailey v. Adams, 10 N. H. 162; Wheat v. Kendall, 6 N. H. 504; Fowler v. Brooks, 13 N. H. 247; Eaton v. Whitmore, 3 Kan. App. 760 (45 Pac. 450); Henry v. Gilliland, 103 Ind. 178 (2 N. E. 360); Reynolds v. Barnard, 36 Ill. App. 223; Crossman v. Wohlleben, 90 Ill. 537; McComb v. Kittridge, 14 Ohio, 351; Wood v. Newkirk, 15 Ohio St. 298; Jones v. Brown, 11 Ohio St. 606, 609; Hayes v. Knox, 41 Mich. 532 (2 N. W. 670); Case v. O’Brien, 66 Mich. 290 (33 N. W. 405).

If it were true that the plaintiffs had begun the suit before they were entitled to possession of the property, the note was due a few days later, and their right to foreclose at such a time cannot be denied. They also purchased a prior overdue mortgage upon some of the property, and claim to have sold the property, or some of it, upon that, at private sale, which they had a right to do without notice. Yet, although clearly entitled to take possession under either mortgage soon after the action was begun, the defendants were allowed to recover not only the property, but a large amount of money for damages. This verdict impresses us as so excessive and unjust that we are surprised that the trial court should have permitted it to stand. The situation of the property, and the interest of each in the same, as well as plaintiffs’ right to possess-' ion after default, were circumstances bearing upon the question of damages; and it was error to allow the jury to give damages for the value of the services of the teams after the time when, under the terms of the mortgage, even as modified by this alleged agreement, the plaintiffs were lawfully entitled to the possession of the property, which mortgage defendants were still liable to pay, though plaintiffs’ action were premature. See Cobbey, ftepl. § 176, and the following cases cited: Hickman v. Dill, 32 Mo. App. 518, and cases cited. In Leonard v. Whitney, 109 Mass. 268, it is said:

“The court will always, however, receive evidence of a change in the legal interest of the party since the commencement of the action of replevin, which makes it improper to order a return, or to allow full damages, when it has been ordered, for a refusal to comply. Thus, failure of .title or right of possession since the commencement of the suit, or the fact that the property has gone to the possession of the true owner, may be set up as reasons for refusing to order a return. So it may be proved, in mitigation of damages, in an action on the bond, that the original action was defeated solely because it was prematurely brought, or, in other words, because the property had gone to the true owner. Davis v. Harding, 3 Allen, 302; Barry v. O'Brien, 103 Mass. 520. And in Bartlett v. Kidder, 14 Gray, 449, which was an action on the bond after the plaintiff in replevin had become nonsuit and a return had been ordered, it was allowed to be shown by the defendants, in reduction of damages, that the property was held in common by them and the debtor, whose goods the defendant in replevin, as. sheriff, had attached; and the damages were reduced to the value of the interest of the debtor, which was all that the sheriff could rightfully appropriate to the use of the attaching creditor. So, where the defendant in replevin has only a special property as against the plaintiff, the fact may be insisted on in reduction oí damages, for, if the value of the property exceeds his claim, he will be liable to the plaintiff for the excess. Serugham v. Carter, 12 Wend. 131; Sedg. Dam. (5th Ed.) 500, 501. It would seem that any fact which the defendant is not estopped by the judgment to set up may in any case be availed of to limit the amount for which execution should equitably issue against him.”

Boutell v. Warne, 62 Mo. 350; Heaps v. Jones, 23 Mo. App. 621.

The judgment is reversed, and a new trial ordered.

Moore, O. J., and Carpenter, J., concurred. Montgomery, J., did not sit. Grant, J., took no part in the decision.


author: Carpenter, J.

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    WELLIHAN v. NATIONAL WHEEL CO.
    Judgment of Supreme Court — Conclüsiveñess on Subsequent Trial.
    Where the only material difference between the records on the first and second trials of an action is that the facts, which appeared by inference in the first, are clearly established in the second, the judgment of the Supreme Court on appeal in the first is conclusive. (Wellihan v. National Wheel Co., 128 Mich. 1.)
    Error to Jackson; Peck, J.
    Submitted February 3, 1904.
    (Docket No. 68.)
    Decided March 29, 1904.
    Case by Michael Wellihan against the National Wheel Company for personal injuries. From a judgment for defendant on yerdict directed by the court, plaintiff brings error.
    Affirmed.

      Richard Price (Charles A. Blair, of counsel), for appellant.

      Wilson & Cobb, for appellee.
   Carpenter, J.

Plaintiff was an employe of the defendant. He was operating a spoke lathe. While oiling the lathe, defendant’s foreman started it, and plaintiff was injured. Plaintiff contended that defendant was responsible because its foreman started the lathe to ascertain whether it was safe for use by the operator. This issue was once submitted to a jury, who rendered a verdict for plaintiff. This court reversed the judgment, on the ground that there was no evidence that the foreman started the lathe for the purpose of determining whether it was safe for an operatorio use it. See 128 Mich. 1 (87 N. W. 75). On the second trial the learned trial judge directed a verdict for defendant. We are asked to reverse that judgraent. The sole question involved is this: Does the case-made by the plaintiff on the second trial differ in any material respect from that made on the first ?

If there were any material distinction between the two-records, it would be easy to point it out in this opinion. But it is not so easy to make clear our reasons for saying-that the two records, differing in many details, are yet. essentially the same. We think it may be said that the-material difference between the two is this: "That certain facts which appeared by inference in the first record are-clearly established in this. It is unnecessary to say that, when the case was here before, the court did not think" that these facts entitled plaintiff to recover; and we adhere to that holding. Respecting the similarity of and. differences between the two records, -we cannot do better-than quote from the learned and painstaking judge who-tried the case:

“And we return to the question with which we started, whether there is evidence now that was not here before that would justify the court in submitting that question [the question of whether the foreman started the machine to determine whether it was safe for ■ operation] to the jury. As I said yesterday afternoon, there are some things in the language of Mr. Wellihan which are not identical with his language before. There is more explanation of certain details,and less of certain others; there is more stress put upon certain features, and less upon certain others, than before; but it is the same thing in substance, and, in my judgment, the only variations which the case can be said to present now from what it did before-are such as different inferences from the same substance..
“Many of the things in Mr.Price’s [plaintiff’s attorney]! statement, this morning, of the new features, I do not think are new. Many others of them are observations or deductions from what was here then as well as now, but are well stated, advantageously to the plaintiff, in Mr., Price’s statement. Now, taking all deficiencies with this,that the Supreme Court have held that I adopted the wrong-view, upon the other trial, in holding that the facts and. circumstances, including the testimony of the witnesses then before us, would justify an inference by the jury that Edmonds [defendant’s foreman] started "that machine for the purpose of seeing whether it was a safe machine for operators to use— This might have been my own view upon, that subject; that is not the view to be adopted. I am conscious that that view that I then entertained was incorrect, and the case is sent back to me for retrial in accordance with the corrected views as expressed by the Supreme Court, and I must try it that way, and I have tried in good faith to do so; and trying that way, applying the distinction to it, it is now my opinion that the case is substantially the same. * * * There is not sufficient variation or distinction between the case as now presented by the evidence and as it was presented by the evidence before * * * to justify me in submitting it to the jury.”

The judgment is therefore affirmed.

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


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    DEXTER v. GORDON.
    1. Wills — Codicil—Construction.
    A will devised and bequeathed ali of testator’s property to his wife for life, giving her absolute power to sell and convey any and all real estate in fee simple, using the proceeds thereof for her support and maintenance, and provided that all property undisposed of at her death should go to testator’s son. A subsequent codicil revoked the bequest to the son, and “in lieu thereof ” gave all the estate to the wife, “ to her and for her use and- benefit during her natural life, ” and after her death to be divided equally among testator’s children. Held, that the will and codicil should be construed together, and that it was testator’s intention simply to change the residuary provisions, and to leave unimpaired the provision for the wife contained in the will.
    2. Same — Decedent’s Estate — Power to Convey — Statutes.
    Where a widow, empowered by the will of her husband to sell and convey real estate in fee simple for her own use and benefit, conveyed the same to her son upon his promise to pay the debts of the estate and care for his mother during her life, 3 Comp. Laws, § 9087, providing that no license to sell real estate for the payment of debts shall be granted if any of the persons interested in the estate shall give bond conditioned for such payment, has no application.
    Appeal from Livingston; Smith, J.
    Submitted February 4, 1904.
    (Docket No. 75.)
    Decided March 29, 1904.
    Bill by Joseph A. Dexter against Celestino A. Gordon and others for the specific performance of a land contract. From a decree for complainant, defendant Gordon appeals.
    Affirmed.

      Louis E. Howlett, for complainant.

      Noah W. Oheever (Shields & Shields, of counsel), for appellant.
   Hooker, J.

The complainant, a son of Amos Dexter, ■deceased, filed the bill in this cause against his sisters, praying specific performance of a contract for premises formerly belonging to his father, but of which he has been in possession for «3 years under a claim of ownership. It is his claim that, for many years prior to his father’s death, he remained at his parents’ home, giving his services and earnings to the support of the family. Amos Dexter died March «6, 1879, leaving a will, which contained, among other provisions, the following:

“Second. I give, devise, and bequeath unto my wife, Lovisa Dexter, all my estate, real, personal, and mixed, to have and to hold the same to her, the said Lovisa Dexter, for and during the term of her natural life.
Thi'i-d. I authorize and empower my wife, Lovisa Dexter, at any time during her life, to grant, bargain, sell, and convey all or any of the lands or real estate of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, and all the right, title, interest, estate, claim, and demand whatsoever that I have therein at the time of my decease, and every part and parcel thereof, at public auction or private sale, for cash or credit, or partly for cash and partly for credit, and in such parcels, and to such person or persons, and upon such consideration, as to her shall seem meet, and also to sign, seal, acknowledge, and deliver such conveyance and conveyances and assurances of the said premises unto such purchaser or purchasers, his, her, or their heirs and assigns, with such covenants and warranties as she shall deem requisite and necessary fully to vest the title in fee to such land or real estate in such purchaser or purchasers, and his, her, or their heirs and assigns, forever, hereby giving and intending to give to my said wife, Lovisa Dexter, the absolute power to sell and convey any and all of my real estate in fee simple absolute, and use the proceeds thereof for her support and maintenance, without let, molestation, or hindrance from any person whatsoever.
Fourth. In case any of the lands and real estate of which I die seised and possessed, or to which I shall be entitled at the time of my decease, shall be undisposed of and unconveyed under the preceding power to convey granted to my said wife, then and in thát case I devise and bequeath the residue and remainder of my real estate and lands, together with such personal property belonging to my estate as shall then remain after the death of my said wife, to my son, Joseph A'. Dexter, to have and to hold the same to him, and his heirs and assigns, forever. (The true intent and purpose of this will being to secure to my said wife, Lovisa Dexter, her comfortable support and maintenance during her natural life, without molestation or hindrance from any one, and to devise and bequeath all the rest, residue, and remainder of my property and estate, real, personal, and mixed, to my son, Joseph A. Dexter, his heirs and assigns, forever.)
“Fifth. I nominate and appoint my son, Joseph A. Dexter, sole executor of this, my last will and testament.”

This will was executed February 14,1878, and attached to it was a codicil executed August 7, 1878. The following is a copy:

“Whereas, in my last will and testament, dated in March, 1878, or about that time, I gave, devised, and bequeathed to my wife, Lovisa Dexter, all my property arid estate of which I shall die seised and possessed, to her and for her use during the term of her natural life, and after her death that the same should go to my son, Joseph Dexter, to him and his heirs, forever: Now I hereby revoke said bequest to my son, Joseph Dexter, and in lieu and instead thereof it is my will, and I do hereby give, devise, and bequeath all my estate of which-1 shall die seised and possessed to my wife, Lovisa Dexter, to her and for her use and benefit during her natural life, and after her death then my estate shall be divided equally between all my children who shall be living at the time of the death of my said wife, sháre and share alike, to them and their heirs, forever.”

These instruments were not satisfactory to the complainant, who suggested that he might make a claim for compensation against the estate. His mother and sisters recognized the justice of the claim, and finally it was agreed that he should receive a deed of the estate, in consideration of his past services, upon his promise to pay the debts of the estate and care for his mother during her life. This arrangement was carried out under the direction of the probate judge, who advised that the will gave the widow authority to deed the property to complainant, and that it was unnecessary for'the children to join in the deed. She made such deed, and complainant faithfully performed the contract, relying upon the sufficiency of his mother’s deed. All of the sisters were made defendants, and all suffered the bill to be taken as confessed, except Celestine A. Gordon, who has taken this appeal. She answered, and filed a cross-bill, in which she claims her full share of the property. The court sustained the deed, and granted the relief prayed.

The testimony in the case shows that the complainant had performed services for his father under an understanding, shared by the family, that he was to have this property ultimately. The complainant not only alleges it, but it is shown by the testimony of his sisters, and their acquiescence in his claim, against which only Celestine A. Gordon objects. His father recognized it in his will, whereby he provides for his widow, with remainder (con-tingent, it is true) to Joseph. But the codicil shows a change of feeling towards Joseph, and, unless it can be said that the power of alienation given to the widow in the will was not taken away by the codicil, the deed executed by the widow was void. Counsel for defendant claim that the codicil should be given that effect, but the trial court took a different view. He was of the opinion that the will was designed to give the widow the broadest power •over the estate, and that the codicil was not designed to affect this power, but only to change the disposition of the residue of the estate, if there should be any, at the death ■of the widow.

If we consider this power limited, and say that her alienation of property must be with reference to her support, as in Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111), there is no difficulty in sustaining her conveyance, when we consider the small value of the property, and the claim of Joseph A. Dexter, with which the estate left by his father was fairly chargeable, if the codicil does not forbid. The evidence shows this alienation to have had for its object provision for the widow’s maintenance and that of her incompetent daughter, who was dependent upon her, and was fairly within any reasonable intent to be imputed to the testator from his language. The codicil does not necessarily indicate a design to do more than change the residuary provisions. It refers to the will, and to the life estate therein provided, by way of recital, and then says:

“Now I hereby revoke said bequest to my son, Joseph Dexter, and in lieu and instead thereof [said bequest] I give, devise, and bequeath all my estate * * * to my wife, to her and for her use and benefit •during her natural life,” etc.

The authorities are uniform that the will and codicil should be construed together, and we think it a reasonable construction to conclude that the testator’s intention was to leave unimpaired the provisions for the widow contained in the will. Were we not able to say this, we think the testimony ample to sustain complainant’s claim of a contract to which. Celestine A. Gordon gave her assent. The statute cited, viz., 3 Comp. Laws, § 9087, has no application to the facts of this case.

The decree is affirmed, with costs.

Moore, O. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


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    HASTINGS v. BOLAND.
    1. Street Railways — Injury to Passenger Alighting From Oar — Instructions.
    In an action for injury to a passenger when alighting from a street car, the court instructed the jury that plaintiff could not recover if power was applied, and the car started up, and he was thrown from the platform or steps, before the car had stopped. Held, that,the jury could not have failed to understand that there could be no recovery unless the car stopped, and was started up again, before plaintiff alighted.
    , 2. Trial — Instructions—Form of Request.
    A requested instruction by defendant: “The sole question for you to determine is the truth of H.’s story. If you are not satisfied that this is substantially correct, there is no other testimony * * * on which your verdict could he based in favor of plaintiff,” — involves the dangerous consequence of a difference of opinion regarding the testimony of the witness, and is improper in form. The court pointed out what was necessary to he proved to justify a verdict, and this was the proper method of instruction.
    Error to Jackson; Peck, J.
    Submitted February 26, 1904.
    (Docket No. 211.)
    Decided March 29, 1904.
    Case by William J. Hastings against William A. Boland for personal injuries. From a judgmentfor plaintiff, defendant brings error.
    Affirmed.

      T. E. Barkworth, for appellant.

      JR. 8. Woodliff (G. E. Townsend, of counsel), for appellee.
   Hooker, J.

The defendant is owner of a street railway, and the plaintiff a passenger, who suffered a broken ankle-and other injuries from a-fall when alighting from the defendant’s passenger car upon a street in the city of Jackson. We infer that he recovered a verdict, but are unable to find any allusion to it in the printed record or its index. We call attention to this for the reason that such omissions are frequent, and occasion us much inconvenience. The negligence relied on is alleged to have consisted of a sudden starting of the car after it had stopped, and while the plaintiff was in the act of alighting, whereby he was thrown down upon the pavement or crossing. The injury is not denied, but the defense made was contributory negligence upon the plaintiff’s part in attempting to alight from the car while it was in motion.

The allegations of error relied on are few. Plaintiff’s theory was that the car stopped, and, when plaintiff was in the act of alighting, it started up again with a sudden jerk. There was also a count based upon the slowing down of the car, and an acceleration of speed by a jerk, before it came to a stop. Defendant’s counsel requested the court to charge that:

“The so-called .‘jerking’of the car makes no difference in the result of this case. If the car started at any rate of speed while the plaintiff was alighting, after the car had stopped, and the accident happened because of such starting, the defendant would be liable; but, if it did not stop, it would not help the plaintiff’s case that the car started suddenly and with a jerk.”

The court did not give this request in exact terms, but he said:

“Now, I charge you that, under the evidence in this case, the plaintiff cannot recover upon the latter theory, viz., that the power was applied, and the car started up and lie thrown from the platform or step, before the car had stopped.”

A claim is made that this did not sufficiently protect the defendant against the danger of the argument that the car started up with a “sudden jerk;” but we think there was no danger of a failure of the jury to understand that there could be no recovery unless the car stopped, and was started up again, before plaintiff alighted.

The court was asked to instruct the jury that:

“ The sole question for you to - determine is the truth of Mr. Hastings’ story. If you are not satisfied that this is substantially correct, there is no other testimony in the case upon which your verdict could be based in' favor of the plaintiff; and in this connection neither sympathy nor prejudice should be permitted to sway your minds, but you should determine the truth of the matter by weighing the evidence, and the testimony of disinterested witnesses should not be lightly thrown aside. ”

This form of request cannot be approved, for it involves the dangerous consequences of a difference of opinion regarding the testimony of the witness named. The coúrt pointed out what was necessary to be proven to justify a verdict, which was the proper method of charging the jury;

A motion was made for a new trial upon the ground that the verdict was against the evidence, and error is assigned upon its denial. We think it was not so clearly against the weight of evidence as to justify a reversal upon that ground.

Counsel also complains of the language used by plaintiff’s advocate in the argument. Neither side is beyond criticism in this regard, and we think the cause should not -be reversed upon this ground.

The judgment is affirmed.

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