text:
    HUDDLESTON v. CHARLES AMOS & CO.
    1. Justices of the Peace — Petition for Appeal — Delay.
    Under the provisions of Act No. 475, Local Acts 1903, providing for appeals from justice’s court in Wayne county after the lapse of five days from the date of judgment, it was proper to deny defendant’s motion for leave to appeal, upon a showing that the officers of defendant corporation knew a suit had been commenced, and process was regularly served upon the secretary who gave the summons to a subordinate with instructions to hand to the president, the employee failing to carry out the request.
    2. Mandamus — Appeal and Error — Appropriate Remedy.
    The proper remedy to review the refusal of the circuit court to grant an appeal from justice’s court after five days have elapsed from the date of judgment, is mandamus, not error; hut in the absence of any objection to the form of remedy chosen by appellant the court may pass on the merits of the objections or points sought to he reviewed.
    Error to Wayne; Murphy, J.
    Submitted January 21, 1914.
    (Docket No. 74.)
    Decided April 7, 1914.
    Trespass on the case in justice’s court by Orville Huddleston against Charles Amos & Company, a corporation, for personal injuries. From an order denying defendant’s petition for leave to appeal, it brings error.
    Affirmed.

      Henry C. L. Forler, for appellant.

      Thomas L. Dalton, for appellee.
   Steere, J.

Defendant seeks in this case to obtain a review and reversal of an order made by the Wayne county circuit court dismissing defendant’s petition for leave to appeal, after the expiration of five days, from a judgment rendered against it in a justice’s court of said county.

Defendant’s assignments of error are:

“First. The' court erred in dismissing the plaintiff’s (defendant's) petition to appeal after the expiration of five days.
“Second. The court erred in making an order dismissing the plaintiff’s (defendant’s) petition, for the reason that the facts do not support such a verdict.”

The reasons given in defendant’s petition why said leave should be granted are that justice requires it, and that defendant was prevented from taking an appeal within the time allowed through no fault or neglect of its own and by circumstances not under its control.

The action upon which judgment was rendered and from which an appeal is sought was commenced before a justice of the peace of the city of Detroit on May 2, 1913, by a summons returnable May 9, 1913, between Orville Huddleston, plaintiff, and Charles Amos & Co., defendant, to recover damages for injuries received by plaintiff while in defendant’s employ. On the return day there was no appearance by defendant, and the cause was adjourned to May 16th, at which time also defendant failed to appear, and, after hearing proofs, judgment by default was rendered for plaintiff in the sum of $500 damages and $1.75 costs. A petition for leave to appeal was filed and presented to the court on June 3, 1913, and, after hearing, denied. A second petition, and the one sought to be reviewed here, was presented to the court on June 10, 1913, which was also denied.

The general law relative to appeals from justice’s court limits the time for taking appeals from judgments rendered therein to five days, unless the circuit court or circuit judge at chambers shall authorize an appeal after the expiration of that time, where it appears the party desiring to appeal has been prevented from doing so by circumstances not under his control. Analogous to the general law, section 22 of Act No. 475, Local Acts 1903, relative to justices’ courts in the city of Detroit-, beginning with the prohibition that: “No appeal shall be taken from any judgment of any justice of the peace in said city of Detroit, except in the following cases” — contains the following provision, upon which defendant relies:

“Appeals may be authorized by the circuit court of the county of Wayne, when the party making the appeal has been prevented from making a defense upon the merits of the case in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized.”

The fourth and last subdivision of said section, relative to appeals, provides:

“Under absolutely no circumstances shall any appeal be allowed or authorized after five days from the rendition of judgment, except as herein otherwise provided.”

The record returned to this court contains the petition supported by affidavits, counter affidavits, and testimony taken before the court at the hearing of said petition. These present certain rather sharply drawn issues of fact for the court to pass upon, if the question of whether justice required allowance of the appeal is involved.

The substance of the showing made by defendant, under the claim that circumstances beyond its control prevented its appeal, is as follows: Defendant was a corporation doing business in the city of Detroit; Charles Amos being its president, and Mrs. Charles Amos its secretary. The record only discloses the nature of its business inf erentially; it being shown plaintiff was in its employ as a structural ironworker; its board of directors was composed of three members, Amos and wife constituting a majority of said board, and in active control and management of the business, the third member being their attorney; that the summons in this case was served upon Mrs. Charles Amos at the office of defendant while she was in charge, Charles Amos being at that time out of the city; that Mrs. Amos turned said summons over to the bookkeeper, with instructions to deliver it to Mr. Amos on his return, which was neglected; that Mr. Amos first learned of said suit and judgment on the 29th of May, 1913, while searching records in the justice’s court, looking up other suits in which defendant was interested.

Against this it is shown that early in the history of the case plaintiff’s attorney notified defendant that he was retained and action was contemplated, whereupon he was referred to defendant’s attorney, who was also one of the directors, and who, acting for the company, proposed terms of settlement, but a few days later reported defendant had refused to ratify the same and would do nothing in the matter, following which action was begun.

Plaintiff deposed that on the 4th or 5th of May, 1913, he met Mr. Amos, president of defendant, who stated that the attorneys were trying to job the company out of $100, that it had never paid for any one getting hurt yet, and he would like to see plaintiff get anything out of it, whereupon plaintiff replied that he had started a suit against the company and he would have a fight on his hands. On his examination at the heáring, Amos testifies as to this notice:

“I met Mr. Huddleston, the plaintiff. He came into our yard and said a suit had been started, but did not say anything else that I remember. That was before the 19th of May, but I could not say the exact date. * * *
“Q. You understood the suit had been started at that time?
“A. Yes, sir; I understood him to say that.”

In regard to this he says:

“1 paid no attention to the statement, because I did not think it was necessary to consider anything but a summons into court.”

The testimony of Mrs. Amos, the secretary, indicates that she was quite actively connected and familiar with the business of defendant, doing all the estimating, billing, making payrolls, and paying the men. She testifies:

“I was not the general head of the business; I am the efficient head. * * * Mr. Amos has full charge of the business. He has been away three or four weeks at a time, and I have taken care of the business in his absence. * * * In the absence of Mr. Amos, I do the business.”

As to her knowledge of the import of a summons, she states:

“I have been served with garnishee summons and have been in court, but never served with any summons. This is the first summons I had ever had.”

From the foregoing it appears, uncontroverted, that all the directors of defendant had early notice that this action was imminent, and the president and secretary, its executive officers, that it had actually been commenced, in ample time to have appeared and made such defense as was desired. Legal, personal service was duly made on the secretary of defendant in its office, while she was in charge of and conducting its business as “the efficient head.” The fact that, instead of putting it in the hands of their attorney, or herself giving it to the president on his return, she turned it over to a subordinate, who neglected to follow her instructions, cannot legally amount to, nor be construed as, a circumstance beyond the control of the company of which she was secretary and a director. The trial court rightly so held, and said: “I cannot deal with the equities; I must deal with it as a matter of strict legal right.”

Defendant’s counsel urge that such strict construction is not in harmony with the tendency of former decisions of this court which hold the statute relative to appeals from justice’s court is remedial in character, and should be liberally construed, citing Braastad v. Mining Co., 54 Mich. 258 (20 N. W. 43); Capwell v. Baxter, 58 Mich. 571 (25 N. W. 493) ; Potter v. Lapeer Circuit Judge, 119 Mich. 522 (78 N. W. 536) ; Jackson v. Jackson, 135 Mich. 549 (98 N. W. 260) ; Pickell v. Coates, 147 Mich. 53 (110 N. W. 125).

Without reviewing them in detail, it can be said of all those cases that they deal with the general statute and none of them presents a state of facts analogous, as a whole, to those disclosed here. While certain of the cases may suggest a liberal construction of the statute, we cannot construe them as authority for the proposition that in passing upon the issue of circumstances beyond defendant’s control, the court will vary its findings of facts or circumstances according to disclosed equities. If important to determine here we are not prepared to find that the showing made at the hearing as to the equities is such as to impel a court to grant the appeal because justice requires it.

In this case we are dealing with the local act relative to justices’ courts in the county of Wayne, in which somewhat different and more restrictive language is used than that found in the general act. In Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897), which also cites previous decisions of this court touching the statute under consideration, it is said:

“The entire provision for appeals bears some evidence of intention to restrict, rather than to enlarge, the right to appeal. Whether the provision of the fourth subdivision does or does not cut off the right to appeal, after five days, in any case and for any reasons, excepting those stated in the third subdivision, we are agreed that no appeal is provided for after five days unless the showing required by 1 Comp. Laws, § 909, is made.”

Under the general statute it is held not to have been the intent to confer upon the court unlimited discretion to allow appeal after five days in any case where, in the judgment of the court, it would be- equitable, but it must first be satisfactorily established, before the court can go further, that the party desiring to appeal has brought himself within the terms of the statute. Draper v. Tooker, 16 Mich. 74; Combs v. Saginaw Circuit Judge, 99 Mich. 234 (58 N. W. 71). Had it been shown to the satisfaction of the court in this case that lack of proper notice, physical causes, or other uncontrollable circumstances, without fault or neglect on the part of defendant, prevented it from appealing within the five days, thus bringing it within the provisions of the statute, then the limited discretion of the court might have been applied, on the showing made as a whole, to determining whether justice required that the dilatory appeal should be granted.

While we have in this instance concluded to consider the ruling complained of on a writ of error, no question having been raised in the record as to its propriety, this case is not to be regarded as a precedent, or an indorsement of that remedy in cases where the court has refused to take jurisdiction and denied the appeal.

Where the court has taken jurisdiction and proceeded with the case, the aggrieved party may by proper objection save the question, which can and should be raised by writ of error after final judgment; but where a final order is made refusing jurisdiction, as we have here, mandamus is the appropriate remedy. This distinction should be borne in mind and adhered to. Although it must be recognized that cases are to be found where, objections not being raised, the impropriety of the remedy has been overlooked by the court, on both contingencies.

The converse of the question here presented is discussed and cases cited in Cosgrove v. Wayne Circuit Judge, 144 Mich. 682 (108 N. W. 361), and Mikkola v. Houghton Circuit Judge, 165 Mich. 583 (130 N. W. 1118), which hold that a writ of error is the proper course where the circuit court has taken jurisdiction. It is unnecessary to here repeat what is there said or again review the cases there cited.

In Vincent v. Bowes, 78 Mich. 315 (44 N. W. 276), it is held that where the circuit court denies an appeal and by final order declines to take jurisdiction, such action can only be reviewed on mandamus. In Capwell v. Baxter, 58 Mich. 571 (25 N. W. 493), and Pickett v. Coates, 147 Mich. 53 (110 N. W. 125), the question of a final order denying an appeal appears to have been raised by writ of error, and, in the absence of objection, passed upon by this court. It may, perhaps, be said of those cases, as was said of Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897), in Cosgrove v. Wayne Circuit Judge, supra, “the impropriety of that remedy was not suggested and did not occur to the court.” In view of the possibility that counsel may have been misled by those cases we have considered the questions raised by this writ, but neither those cases nor this are to be taken as approving authority for the remedy resorted to here.

We conclude that defendant failed to bring itself within the provisions of the statute, and the circuit court rightly denied the appeal petitioned for.

The order of the circuit court is therefore affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MOORE v. O’LEARY.
    1. Wills — Trusts—Charitable Trust — Validity.
    A bequest of real and personal property to a person named, to be disposed of by tbe beneficiary for charitable purposes, as the testatrix had previously orally instructed her, was invalid, for the reason that the disposition of property by testamentary act must be by writing and may not be partly oral, and partly in writing.
    2. Trusts — Parties—Charitable Uses.
    At common law a trust without a designated beneficiary who could enforce it was void.
    3. Wills — Statutes—Charitable Uses.
    Act No. 122, Pub. Acts 1907, as amended by Act No. 125, Pub. Acts 1911 (4 How. Stat. [2d Ed.] §§ 10700, 10701), validating charitable trusts where there is uncertainty or indefiniteness of beneficiaries, does not, however, make an instrument valid, which is insufficient as a testamentary disposition of property.

      Appeal from St. Clair; Law, J.
    Submitted January 19, 1914.
    (Docket No. 77.)
    Decided April 7, 1914.
    Bill by Alexander Moore, as executor of the estate of Alice O’Leary, deceased, against James A. O’Leary and others for the construction of a will. From a decree for complainant, defendants appeal.
    Reversed.

      J. F. Wilson, for complainant.

      Lincoln Avery, for defendants.
    The issue made by the pleadings involves the legal effect of a clause in the codicil to the, last will and testament of Alice O’Leary, deceased. The fourth clause of the will is:
    “I bequeath all the residue of my estate and effects whatsoever and wheresoever situated, after payment of my debts, funeral and testamentary expenses, and of the legacies bequeathed by my will unto Mary E. Clary and William J. Denier.”
    The codicil, so far as its terms are here important, is:
    “I desire to eliminate the provision in said will for William J. Denier and leave all property mentioned in clause four of said will to Mary E. Clary, to be disposed of by her as I have heretofore instructed her for charitable purposes and a bequest to St. Stephen’s church of Port Huron, Michigan, towards the purchase of an organ.”
    The record does not disclose how much of the estate of the testatrix is real and how much is personal property, nor, except by inference, the value of the estate. Power is given to the executor to sell and convey all of the estate, “both real and personal.” The will was made February 25, 1911; the codicil April 8, 1912. The residue of the estate is said in the briefs to amount to about $12,000. Mary E. Clary was sworn as a witness at the hearing and gave testimony to the effect that she was not related to the testatrix but had been in her employment and had lived with her for more than 13 years. The testatrix gave her, she says, no written instructions as to a disposition of her property. Witness had a list, made by herself, of various charities, and knew, or was able to learn, what contributions the testatrix had habitually made to them, and some, if not all of them, had been mentioned in conversations between witness and the testatrix as objects of her bounty.
    . “Q. Then previous to the making of this will that is now before the court she had told you that she wanted you to take the residue of her estate and go along and do just as she had done?

      “A. Yes, and that was as near as what she told me to do, the different places she had told me.

      “Q. That is to give to charity?

      “A. Yes, while the money would last.”
    Concerning the instructions given her by the testatrix, she said she was to give $1,000 towards purchasing an organ for St. Stephen’s; about $20 annually, while the money lasted, to the Home for the Aged of the Little Sisters of the Poor at Detroit, Mich.; $10 or more annually, “of course according to the amount on hand,” to St. Joseph’s Home for Boys at Detroit; the same amount to St. Vincent’s Hospital and St. Francis Home for Boys at Highland Park; $20 to St. John’s Protectory at Lackawanna, N. Y. A number of other institutions were mentioned, but the foregoing sufficiently illustrates the alleged instructions. About a dollar a day, or $350 a year, was to be paid for masses. This witness also gave the following testimony:
    “Well, I would have authority when the courts turned all this property, the residue of the estate, over to me, I was to dispose of it to best advantage, not to be in such a hurry to sell it out at less than its value, and she didn’t want this kept in the courts used up that way, the principal or the proceeds of the estate, and in that way she left it to me, and I was to just take that and sell out the property according as I had the opportunity, and turn that money in to be used for these purposes, and I was to use it up along every year all that would come into my hands for that purpose.
    “Q. And the amount you were to advance from year to year why you could, of course, increase it or diminish it if you thought it was a proper thing to do?

      “A. Yes.

      “Q. Is that your idea?

      “A. Yes, in most of the cases I could give more if I had the money on hand.

      “Q. And if you didn’t want to give more you would hold it and give it next year, if you thought it was proper, and hold it up and give it the following year?

      “A. I can’t say as I would be justified in doing that; each year would have to take care of itself.

      “Q. Now, if some new worthy purpose came along, what would you do with that, if it was similar to some of the institutions she had been giving to while she was here?

      “A. I suppose if I had the money, extra money on hand, I would have to contribute to that.

      “Q. If in your judgment it was the proper thing to give it?

      “A. Yes, sir.

      “Q. You would feel it your duty to do it under your understanding with her?

      “A. Yes, sir.

      “Q. And you would think you would not be doing right unless you did it, would you?

      “A. No, but I should have to take care of the other ones first that I knew that she had given to.

      “Q. That is, that you had given to?

      “A. Yes, sir.”
    The court determined that the codicil revoking the clause of the will is valid and operative, “creating a gift and bequest for religious, educational, charitable and benevolent uses,” and that the title to the residue of the estate vested in Mary E. Clary, as trustee; that the trust shall be executed under and subject to the directions of the circuit court, in chancery, for the county of St. Clair, to which court the trustee shall account for all receipts and disbursements in connection with the administration of the trust, and to which court she may apply for orders. To the giving of testimony by Miss Clary, the following objections were made:
    “(1) She is interested in the subject-matter.
    “(2) Her knowledge is equally within that of deceased and barred by the statute.
    '“(3) The will and codicil must control as drawn and cannot be changed or added to by oral testimony.
    “(4) The objects of the charity rest in parol.
    “(5) The testimony is not competent under section 8839, M. C. L. 1897, or P. A. 122, 1907.”
    And appellants present in this court the following questions:
    “(1) Is the codicil, as drawn, an effective disposition of the residue of this estate?
    “(2) Must a gift, to be valid, attach itself to a definite charity, on the face of the will?
    “(3) Is it necessary to name or designate a beneficiary in a will?
    “ (4) Can oral testimony be resorted to, to select a particular purpose or charity or name the beneficiaries or amounts, when not expressed in some form or indicated in some manner by the language used in the will ?
    “(5) Can the court receive Miss Clary’s testimony for the purpose of _ designating beneficiaries and amounts, or to establish a will by oral testamentary disposing of $12,000 worth of property?
    “(6) Does Act 122, P. A. 1907, repeal section 8839, M. C. L. 1897, and other statutes, and establish the ey pres doctrine in Michigan?”
    Act No. 122, Pub. Acts 1907, as amended by Act No. 125, Pub. Acts 1911, is as follows (4 How. Stat. [2d Ed.] § 10700) :
    “An act relative to gifts for religious, educational, charitable or benevolent purposes or for the main- • tenance of cemeteries, or anything therein contained.

      “Section 1. No gift, grant, bequest or devise to religious, educational, charitable or benevolent uses, or for the purpose of providing for the care or maintenance of any part of any cemetery, public or private, or anything therein contained, which shall in other respects be valid under the laws of this State, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. If in the instrument creating such a gift, grant, bequest or devise, there is a trustee named to execute the same, the legal title to the lands or property given, granted, devised or bequeathed for such purposes, shall vest in such .trustee. If no trustee shall be named in said instrument, or if a vacancy occurs in the trusteeship, then the trust shall vest in the court of chancery for the proper county, and shall be executed by some trustee appointed for that purpose by or under the direction of the court; and said court may make such orders or decrees as may be necessary to vest the title to said lands or property in the trustee so appointed.
    “Sec. 2. The court of chancery for the proper county shall have jurisdiction and control over the gifts, grants, bequests and devises in all cases provided for by section one of this act. The. prosecuting attorney of the county in which the court of chancery shall have jurisdiction and control shall represent the beneficiaries in all cases where they are uncertain or indefinite, and it shall be his duty to enforce such trusts by proper proceedings in the court, but he shall not be required to perform any duties in connection with such trusts in any court outside of this State.”
   Ostrander, J.

(after stating the facts). The testatrix has not indicated, in her testament, the objects of her bounty, specially or generally, except that St. Stephen’s Church of Port Huron is named as a beneficiary, and the purpose of the gift to it, but not the amount of the gift, is stated. No scheme of charity or of charitable distribution is indicated, nor whether individuals or private or public institutions are objects of her bounty. A purpose to devote the residue iof her estate to charity is indicated, but not a purpose to devote it to charity generally. The trustee nominated in the codicil has been instructed, and therefore the idea of a selection of beneficiaries by the trustee is apparently excluded. It is plain that the intention of the testatrix cannot be ascertained from the will itself, beyond this: That she intended to create a trust and, through a trustee whom she has nominated and has instructed, to devote to St. Stephen’s Church and to other charitable purposes the residue of her estate. I think decision may be safely rested here, not because, as is contended by counsel for appellants, the trust attempted to be created does not satisfy the requirements of our statute of uses and trusts, that statute affecting real property only (Ledyard’s Appeal, 51 Mich. 623 [17 N. W. 208] ; Hopkins v. Crossley, 132 Mich. 612 [96 N. W. 499]), and we might, other objections aside, apply here the doctrine of equitable conversion and treat all of testatrix’s property as personalty, but because, in this State, the disposition of' property, real or personal, by will must be by writing, attested by two witnesses. The instrument before us is such a writing, but the trust attempted to be created is not contained therein. See Wilcox v. Attorney General, 207 Mass. 198 (93 N. E. 599, Ann. Cas. 1912A, 833, and note).

I do not mean to hold, and the case does not involve the point, that a valid trust for charitable uses may not now be created by will; the selection of the particular beneficiaries from a class, or according to a charitable scheme, indicated in the will, being left to a trustee or to the court. In such a case it might be said, what cannot be said here, that the' intention of the testator was expressed in the will, and the disposition of property attempted was complete.

Counsel for complainant is of opinion, and to this the learned trial .court must have agreed, that the statute of 1907 has introduced into the State the doctrine of charitable uses, and that according thereto the trust in question here may be sustained. In this I think he is mistaken, not, indeed, in thinking that the statute has to some extent introduced the doctrine of charitable uses, but in supposing that the doctrine may be invoked to sustain this trust. Except as introduced by this statute, the doctrine has never obtained in this State (Methodist Church of Newark v. Clark, 41 Mich. 730 [3 N. W. 207] ; Hopkins v. Crossley, 132 Mich. 612 [96 N. W. 499]), whether the trust fund was real estate or was personalty, or the object private or public benefaction. The rule which has been in force here is the rule of the common law, expressed in Morice v. Bishop of Durham, 9 Vesey, 399, as follows:

“If there be a clear trust, but for uncertain objects, the property that is the subject of the trust is undisposed of; and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.”

And as stated in Levy v. Levy, 33 N. Y. 97:

“A ‘charitable trust’ is simply an indefinite or uncertain trust — a trust without a beneficiary; and certainly a trust of that description is void by the rules of the common law as it existed at the time of adoption by us, and now exists. If there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise, or unwise.”

See, also, Tilden v. Green, 130 N. Y. 29 (28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487) ; Wheelock v. American Tract Society, 109 Mich. 141 (66 N. W. 955, 63 Am. St. Rep. 578) ; Stoepel v. Satterthwaite, 162 Mich. 457 (127 N. W. 673) ; McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985). I find no decisions of this court which, as respects the rule that the beneficiaries of a trust shall be certain, have distinguished between charitable and other trusts. Whether it would have been more reasonable to have excepted from the rule trusts for public charity, the beneficiaries of which must of necessity be uncertain, at least in cases where the gift or bequest was personal property (Perry on Trusts, § 687; Dodge v. Williams, 46 Wis. 95-98 [1 N. W. 92, 50 N. W. 1103] ; Harrington v. Pier, 105 Wis. 485 [82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924] ; Dulles's Estate, 218 Pa. 162 [67 Atl. 49, 12 L. R. A. (N. S.) 1177]), is a matter about which men may differ in opinion, but, as has been stated, no such exception has been made. What the prevailing rule has been is of interest in determining what change in the law the statute of 1907 has made.

The statute relates only to gifts, etc., to religious, educational, charitable, or benevolent uses, and to those only which are in other respects (except in respect to matters to be remedied by the statute) valid under the laws of the State. No such gift, is the legislative declaration, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as .the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. I have pointed out that no beneficiary, excepting St. Stephen’s Church, is designated in the will, and also that the idea of an indefinite beneficiary is excluded, and the idea of a certain, but not validly declared, beneficiary is included, by the words employed.

It is said our statute was borrowed from New York, where, in 1893, a statute similar, but not containing the provision relative to perpetuities, was enacted, and before its enactment here was_ construed by the court of last resort of that State. It is urged on the part of complainant that the statute must be considered as adopted here with the meaning and effect given it by the New York court. In Allen v. Stevens, 161 N. Y. 122 (55 N. E. 568), the court considered, in the light of the statute, a clause in a will reading as follows:

180 Michigan Reports. [Apr.
“Tenth. I give, bequeath and devise all the rest and residue of my property of every kind, personal and real, wherever situate, to my trustees hereinafter named for the purpose of founding, erecting and maintaining Graves Home for the Aged, to be located in the city of Syracuse, in the State of New York. It is intended as a home for those who by misfortune have become incapable of providing for themselves and those who have slender means of support. The institution to be known as the Graves Home for the Aged. I hereby appoint Charles E. Stevens, Rasselas A. Bonta, and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors, or the survivor of them, to rent or sell any part or all of my real estate that I may own at the time of my death. They are authorized to employ a person or persons to have charge of the real estate, to collect rents, make & to repairs, and to pay such sums for compensation as they may deem reasonable and proper.
“After my executors have executed their trust and paid all the legatees provided for in this will they are authorized and directed to convey to the said trustees above named the balance and remainder of my property of every kind to be applied for the purposes above provided, and the said trustees, or the survivor, are authorized to rent or sell all or any part of my real or personal property and to employ such agents as they may deem proper to take charge of the same and pay them such compensation as they deem best.”

There was a dissenting opinion, but the provision of the will was sustained. It is said in the majority opinion that:

“Reading the statute in the light of the events to which reference has been made, it seems to me very clear that the legislature intended to restore the law of charitable trusts as declared in the Williams Case; that having discovered that legislative enactment had operated to take away the power of the courts of equity to administer trusts that were indefinite as to beneficiaries, and had declared a permanent charity void unless the devise in trust was to a corporation already formed or to one to be created, it sought to restore that which had been taken away through another enactment. This is markedly indicated, not only by the absence of details in the statute, which is broadly entitled ‘An act to regulate gifts for charitable purposes,’ but also in the brevity of the statute, which confers all power over such trusts and trustees on the Supreme Court and directs the attorney general to represent the beneficiaries in cases within the purview of the statute, as was the practice in England. Practical effect can be given to the provision that no devise or bequest shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries only by treating it as a part of a general scheme to restore to the courts of equity the power formerly exercised by chancery in the regulation of gifts for charitable purposes, for, in order to ascertain the class of persons who were entitled to the benefits of the trust, the rule formerly in force must necessarily be invoked by which the court ascertained, as nearly as possible, the intention of the testator, by decree adjudged, who were intended to be the beneficiaries of the trust and directed its administration accordingly.”

It is this declaration of the legislative purpose and of amended state policy which counsel for complainant regardas adopted in this State with the adoption of the statute. It ought to be said, perhaps, that the effect of a new statute upon the law and policy of a State depends upon the existing state of the law and the policies theretofore declared. The same law adopted in different States might have a varying effect upon the existing laws and policies of each State. The history of the particular subject in the State of New York has not been repeated in this State. Therefore,, the adoption of the particular statute from New York,, and the rule relied upon by complainant, are not necessarily conclusive of the effect to be given the statute here. In so far as the statute had been applied in New York to particular facts, and its meaning and effect thus determined, we think the rule should be observed, unless our statute and policies dissimilar to those of New York forbid it. The effect of the decision of Allen v. Stevens, and of cases since decided (Matter of Griffin, 167 N. Y. 71 [60 N. E. 284] ; Matter of Graves, 171 N. Y. 40 [63 N. E. 787] ; Murray v. Miller, 178 N. Y. 316 [70 N. E. 870] ; Rothschild v. Schiff, 188 N. Y. 327 [80 N. E. 1030] ; St. John v. Andrews Institute, 191 N. Y. 254 [83 N. E. 981, 14 Am. & Eng. Ann. Cas. 708] ; Matter of Shattuck, 193 N. Y. 446 [86 N. E. 455] ; Matter of Cunningham, 206 N. Y. 601 [100 N. E. 437]), is that, since the enactment of the law referred to, gifts in trust for public charitable purposes are not void for the uncertainty and indefiniteness of the beneficiaries, if the purpose of the trust is defined with sufficient certainty to be carried out by the court. It was expressly held (Matter of Shattuck, supra) that it was not the purpose of the act to preserve gifts to private institutions or individuals, and when the selection of the beneficiaries of a trust is left to the discretion of a trustee, subject only to the limitation that they shall be “religious, educational, or eleemosynary institutions,” the trust is void, because the word “educational,” as used, does not necessarily describe a public or charitable institution, within the meaning of the act. It was said:

“In this will the testatrix, without defining the use to which the income of the trust fund is to be applied, directs generally that it be paid over to such particular ones of certain institutions as in the judgment of the trustee seems advisable. The power of the court to control the trustee is bounded by the directions of the testatrix. It cannot add to or take from the terms of this will properly construed any more than it could if the testatrix had specified by name the particular institutions entitled to the income of the trust fund, and she had included among them one or more manufacturing or transportation corporations. The possible devotion of the income of said trust in whole or in part to private use necessarily affects the entire gift and requires that the same shall be held invalid.”

It is further pointed out that a school, unless it is a free school, does hot come within the enumeration of charities in the statute 43 Elizabeth, chap. 4. Assuming that our statute should have the meaning and effect which were given to the New York law before its adoption here, it is evident that the purpose of the trust we are considering is not defined with sufficient certainty in the instrument creating it to be carried out by the court. There was a time when the English court of chancery would perhaps have seized upon the general statement of the testatrix that the estate was to be disposed of for charitable purposes, have ascertained, as best it could, the intentions of the testatrix or what were her favorite charities, and disposed of the fund in conformity, “as near as may be,” with her ascertained desires; in any event, would have disposed of it for charitable purposes. The cy pres doctrine was carried to extravagant lengths in some decisions. The subject is treated generally in 6 Cyc. p. 961 et seq. A late case (Blair v. Duncan, 27 App. Cases, 37, decided in the House of Lords in 1901) indicates the trend of modem decisions. In that case a testatrix, by codicil, directed her trustee that, in events which happened, one-half of the residue of her estate should be applied “for such charitable or public purposes as my trustee thinks proper.” It was held the direction was void for uncertainty; that the words “charitable” and “public” were used disjunctively; and that the disposition given to the trustee to • determine what particular public purposes should be the objects of the trust is too vague and •uncertain for any court to administer.

In my opinion, the trust in question here is invalid: First, because it is not evidenced according to law, and the unexpressed will of the testatrix cannot be given expression by parol; second, because the intended beneficiaries are not, upon the instrument creating the bequest, uncertain or indefinite within the meaning of the statute.

It follows that the decree must be reversed and a decree entered in this court adjudging the trust attempted to be created by the codicil to the will to be invalid. Appellee may have his actual costs and expenses allowed, as a disbursement, out of the fund. Appellants may, if they choose, have a decree for costs payable out of the fund.

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


author: Brooke, J.

text:
    TOTH v. OSCEOLA MINING CO.
    1. Master and Servant — Inspection—Pick.
    A pick is a simple tool, in common use, and no duty to inspect arises if the tool was reasonably fit in the first instance.
    2. Same — Warning and Instructing Servant.
    It is matter of common knowledge that, when rock is struck forcibly with any iron tool, splinters are liable to fly so that an employer is not charged with the duty of warning an experienced miner of the danger.
    Error to Houghton; Cooper, J., presiding.
    Submitted January 22, 1914.
    (Docket No. 58.)
    Decided April 7, 1914.

      Case by John Toth against the Osceola Consolidated Mining Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      Allen F. Rees (Rees, Robinson & Petermann, of counsel), for appellee.
   Brooke, J.

Plaintiff, a man 38 years of age, came to this country from southern Europe in the year 1909. His entire adult life had been spent in the performance of ordinary labor, except for a short time while he was in the army. He was employed by the defendant as a “dirt passer.” The duty of a dirt passer in defendant’s mine calls him to work in the stope with a pick and shovel. The rock, after' it is blasted, must be broken up and shoveled down to a point where it can be loaded into cars. Some of the rock can be shoveled out without being broken, but other pieces are too large to be handled with a shovel, and have to be split or broken with a pick. The custom in force at defendant’s mine at the time of the happening of the injury to the plaintiff required the plaintiff to call at the toolhouse at the mouth of the shaft, where he was handed a pick by the shift boss, which he took into the mine with him, using it as occasion required during his shift, and returning it to the toolhouse at the close of the shift. The shovels were left in the drift.

Plaintiff had worked for defendant for six days. Upon the first trial of the case, he swore that on each of these six days he was given a pick which he examined and found to be sharp, but that on the seventh day he was given a pick which he did not examine until after he received the injury complained of, when he found it to be dull. Upon this trial he testified that he could not remember having examined the picks given him on the six earlier occasions, but that they were “good” picks. Plaintiff received the injury on account of which he brings suit in the following manner: In the course of his labor he came to a rock so large that it could not be handled with a shovel. He struck the rock at a point where there was a crack in it with his pick. The first blow was a light one, the second he struck with all of his strength, causing the rock to splinter, and a small particle entered one of his eyes. This injury later resulted in the loss of the sight of the injured'eye. The negligence relied upon by the plaintiff is the failure of the defendant to give him a sharp or suitable pick with which to perform his labor, and the further failure to warn him of the danger of using a dull pick.

At the close of the testimony, the court directed a verdict for the defendant in the following language:

“The plaintiff claims that he was injured by the use of a dull pick while striking a rock, and causing splinters to fly into his eye. The undisputed evidence is that the plaintiff had this dull pick, and the question resolves itself right down to this question: Is it negligence on the part of the company to fail to warn a man that in striking a rock with a dull instrument, splinters are liable to come off of the rock and strike him and injure him? Now, it doesn’t seem to me that is the question before this jury, and I don’t see where the jury have anything to pass upon. It seems to me it is clearly a question of law, and, if the court must assume to pass upon the question as a matter of law, assuming what the plaintiff has shown to be true, the situation there is not contradicted. The defendant has not put in any evidence which contradicts the situation here as claimed by the plaintiff: First, that there was a dull pick handed to him. We must assume that as an established fact in this case, that the defendant did furnish a dull pick to do this work. We then would have only the one question left, and that was whether the defendant ought to warn him of the danger of striking rock with a dull pick and pieces might fly. It seems to me the court must pass upon that as a question of law, and it is not a matter of fact, a question of fact, rather, for the jury. Now, the more I studied this case, the more it seems to me to come down simply to this: If A. hires B. to go out in the courtyard here to break up a rock, and gives him a hammer or a dull pick and an instrument of that kind, must he warn him when he goes out and strikes that rock, begins to break it, pieces are liable to fly? Now, it seems to me that the matter is one that an ordinary man of ordinary intelligence is bound to know, and it does not seem to me that, if that, you have got to warn the employee against that. If you order the employee to go and drive a nail in that door, you would have to stop and warn him of all danger that might possibly come from striking a nail with a hammer. It seems to me anybody who strikes a rock with a dull pick must know, when he begins to break that rock, there are going to be some pieces fly. It is so simple and so plain. I don’t believe a warning is necessary. A man, when he hires out to work at a given employment, assumes all the ordinary risks of that employment. That rule of law claims it. This plaintiff here, when he went and hired himself out to the defendant in this case, he assumed all of the ordinary risks of his employment. It seems to me that this necessarily was an ordinary risk of the employment. I do not see any extraordinary thing about it. If he struck a rock with an instrument, he must have known, when he broke that rock, that pieces would fly. * * * Here is not a case of a defective tool. While it was dull, it had no defect in it, and the fact that it was dull was a matter that the plaintiff was bound and ought to know. When a man is handed a pick — a man of ordinary intelligence— and he was bound to be a- man of ordinary intelligence when he sought the work he did, if he looks at a pick, he knows whether it is sharp or dull. He is bound to know. He can’t take a pick and afterwards claim he didn’t know it was dull. That is a matter so apparent and so obvious that, even if he was a child, the law would require him to know the pick was not a sharp pick; it was dull. We have the plaintiff bound to know he was using a dull pick. As I said at the outset, it was the same as if he was given a sledge hammer to break this rock. That he was bound to know when he struck the rock with a dull instrument,"* when he struck a rock with any instrument, a man knows when he goes to break it there will be a certain amount of splinters fly around. That is all this case is. Therefore I conclude, under the law, I assume the responsibility and direct a verdict for the defendant.”

We are of opinion that the direction was warranted. A pick is a tool of common use and of utmost simplicity. As to such tools, reasonably fit in the first instance, the master owes no duty of inspection. Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497) ; Meyer v. Ladewig, 130 Wis. 566 (110 N. W. 419, 13 L. R. A. [N. S.] 684).

We think it must be said that it is a matter of common knowledge that, when a rock is struck with great force by any iron tool, whether sharp or dull, splinters are liable to fly as a result of the concussion. A man 33 years of age, who has spent his life in ordinary laborious occupations, could not reasonably be supposed to be ignorant upon this point and require instruction. His ignorance of English or of the customs of the country would not make instructions necessary. The results of such a blow are so common as to be of almost universal knowledge. The blow is struck; the splinters fly. No harm follows, unless, as in the instant case, through some adverse chance a flying particle reaches the eye of the operator. Under such circumstances, the master is under no duty to warn the servant of a danger so common and obvious. Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Mushinski v. Vincent, 135 Mich. 26 (97 N. W. 43) ; Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); 4 Thompson on Negligence (2d Ed.), §4061.

The judgment is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    ALPENA ELECTRIC LIGHT CO. v. KLINE.
    1. Electricity — Public Service Corporation — Power and Light —Michigan Railroad Commission.
    Where an electric light and power company was engaged in the production of both light and power, but at different rates to consumers, and one of its patrons, who obtained current for power in an industrial establishment, by the use of transformers furnished by the complainant, employed the current to produce light without paying the higher rate adopted and published by the company for lighting current, an injunction was properly allowed to restrain defendant from so using the current, since his action operated as a discrimination against the other consumers of electricity for lighting purposes.
    2. Equity — Injunction.
    Before raising the question of reasonableness of rates charged by an electric power and light corporation, in a suit in equity involving an alleged discrimination brought about by defendant’s purchasing power and transforming the current into a lighting current, the point should be presented to the Michigan railroad commission which is empowered by Act No. 106, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2932 et seq.), to pass on the question of rates.
    Appeal from Alpena; Emerick, J.
    Submitted January 23, 1914.
    (Docket No. 56.)
    Decided April 7, 1914.
    Bill by the Alpena Electric Light Company against Lewis T. Kline for an injunction. From a decree for complainant, defendant appeals.
    Affirmed.

      Henry, Henry & Henry, for complainant.

      I. S, Canfield, for defendant. ■
    The complainant in this case is engaged in the manufacture and sale of electric current. It supplies electricity both for light and power. ' Under Act No. 106, Public Acts of 1909 (2 How. Stat. [2d Ed.] §2932 et seq.), it is required to and has filed with the Michigan railroad commission its rates for lighting service and its rates for power service. It charges a different and higher rate for the current when used for lighting than when used for power. The defendant owns and operates an industrial establishment in the city of Alpena. Outside the premises of the defendant the complainant, through a transformer, reduces the electricity carried upon its wires from 2,300 volts to 440 volts, and carries the current into the premises of the defendant at the latter voltage. After it is received upon the premises of the defendant, it is there used at said voltage to run certain motors which in turn furnish power for the operation of the plant. A portion of the current is by the defendant again run through a transformer, the voltage reduced to 110, and the current then used for lighting purposes within the plant. Under the system in operation complainant is unable to determine what portion of said current is used for power and what portion for electric light. Application was made to defendant for leave to enter upon his premises and connect his lighting system with the city system of lighting operated by complainant, which was refused. Whereupon complainant filed its bill of complaint praying for a mandatory injunction directing defendant to permit such changes to be made. Complainant is furnishing, and defendant is receiving, the current under a franchise granted by the city of Alpena.
    Defendant’s answer admits the charge that it is now converting a portion of the current which he receives at a voltage of 440 to a voltage of 110, which he uses for lighting purposes in his industrial establishment. He appears to claim first, that he has a right to do this, inasmuch as it can make no difference to the complainant once the current is upon his premises whether he uses it for the production of power or the production of light, and, second, that he converts the' current to the lower voltage through machines furnished him for that purpose by the complainant some time before the filing of the bill; and it is his claim that the complainant should now be estopped from demanding that he should discontinue their use. After a full hearing upon the merits, the following decree was entered.:
    “After reading and considering the bill of complaint, answer, and replication, and after hearing the proofs and allegations of the parties and arguments of counsel, on motion of Henry, Henry & Henry, solicitors for complainant, it is ordered, adjudged, and decreed, and the court now here doth order, adjudge, and decree that the defendant, Lewis T. Kline, be enjoined and restrained from using electricity or electrical power furnished by complainant to him at his industrial works in the city of Alpena for electric lighting in his said works in such a manner or from such a source that the current’ therefor cannot be metered and measured, and that said Kline be enjoined and restrained from continuing to use said power to generate his lights in his said industrial works from such a source or in such a manner that the current devoted to said lights cannot be accurately determined, metered and measured by complainant; that said complainant recover against the defendant his cost about his suit in this behalf expended, and have execution therefor.”
    From this decree, defendant appeals.
   Brooke, J.

(after stating the facts). It is clear that since the passage of Act No. 106, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §2932), complainant is subject to the control and supervision of the Michigan railroad commission. It is not questioned that, as required by the said commission, it has filed with the commission a schedule of its rates. This schedule is one which divides the users of the current into classes; there being a classification according to the various quantities used, both as to users of the current for power and light. The commission itself has not so far apparently fixed or attempted to fix the rates demanded by complainant. Those rates, however, upon complaint from the proper parties, are, under the terms of the act creating the commission, subject to revision. We understand from the record that no such application has been made. To permit one user to take the current at its power voltage and transform a portion of it to the lighting voltage, and use it for lighting, paying for the whole at the power rate, would be to permit a discrimination against all other users of the power for lighting, because the rate charged for the current when used for lighting is considerably higher than that charged when it is used for power.

It should be noted that the reasonableness of the rates charged for both classes of service according to the schedule filed with the railroad commission is not in issue in this proceeding. The right of a public service corporation to charge a higher rate for the same commodity when used for one purpose than when used for another purpose is perhaps not directly involved, though questioned by defendant. We deem it unnecessary to pass upon the question in this proceeding, as we are of opinion that the contention should in any event first be made before the railroad commission in a proper proceeding. Upon the question reference is had to the following authorities: Boerth v. Gas Co., 152 Mich. 654 (116 N. W. 628, 18 L. R. A. [N. S.] 1197) ; In re Investigation of Milwaukee Lighting Rates, 9 Wis. R. R. Com. R. 541; Silkman v. Board of Water Com’rs, 152 N. Y. 327 (46 N. E. 612, 37 L. R. A. 827). See, also, Principles and Methods of Municipal Trading, by Prof. Douglas Knoop, p. 224.

We are satisfied that the complainant is entitled to the relief prayed, and that, if defendant feels himself aggrieved by reason of excessive charges, his remedy is open through a proper application for relief to the railroad commission.

The decree is affirmed.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.