text:
      In re BARCLAY’S ESTATE. BARCLAY v. COMAN.
    1. Executors and Administrators — Claims Against Estate — Care of Decedent — Claim of Married Woman — Evidence.
    Where, on the trial of a claim of a married woman against an estate for care of decedent, there is evidence of an arrangement to pay claimant for her services, understood and assented to by decedent, claimant, and her husband, testimony tending to show that claimant’s husband agreed that she should have pay for such services as her separate property, is properly admitted over the objection that it must have been brought home to decedent and assented to by her to be admissible against the estate.
    2. Same — Instructions—Requests—Application of Pacts.
    A'requested instruction reciting the facts that decedent lived two years after the last services were performed, that a settlement in evidence was made, and no demand for services was made, is properly refused, such facts not being controlling of the motion to direct a verdict for the estate, and no other application of the facts recited being requested.
    Error to Bay; Collins, J.
    Submitted November 14, 1906.
    (Docket No. 142.)
    Decided December 17, 1906.

      Mary J. Barclay presented a claim against the estate of Sarah A. Barclay, deceased, for services rendered. The claim, was allowed in part by the commissioners, and Helen F. Coman, administratrix, appealed to the circuit court. There was judgment for claimant, and contestant brings error.
    Affirmed.

      T. E. Webster (James Van Kleeck, of counsel), for appellant.

      Gilbert W. Hand (Edward E. Anneke, of counsel), for appellee.
   Ostrander, J.

Mary Jane Barclay presented a claim against the estate of Sarah A. Barclay:

“ For nursing and care, furnishing groceries and keeping house for deceased from May 30, 1901, to March 7, 1903, 81 weeks, @ $8.00 per week, $648.00.

“ To interest on above from March 7, 1903.”

The commissioners allowed the claim at the sum of $250. On appeal by the administratrix to the circuit court, an allowance of $700 was made by a jury. The representative of the estate has brought the record into this court. It contains all of the testimony. The theory of claimant was that she rendered services for the decedent under an agreement to do so and to receive pay therefor, and that, by a further arrangement with her husband, the compensation was to be her sole property. The position of the defendant estate was that claimant and her husband, Fred W. Barclay, a son of decedent,'went to live with decedent under an arrangement to care for and board her for the rent of the house. There was testimony to support the finding of an arrangement to pay claimant for services, understood and assented to by decedent, claimant, and her husband, and an examination of the charge of the court satisfies us that the issues of fact presented by the testimony were properly submitted to the jury.

Some testimony was taken over objection. Claimant was a married woman. Her husband, the son of decedent, died before his mother. She was sworn as a witness in her own behalf and testified:

“Q. What was the arrangement between yourself and your husband at this time; at the time of your coming up here ?

“A. The arrangement was, if I came up here to take care of his mother, I should have my pay, and I never received anything.”

On cross-examination,'’ she testified:

Q. And before you went there, you had a talk with Fred Barclay about your having your pay before you went to Sarah A. Barclay’s to take care of her at the house. You had a talk with your husband by which you were to receive pay for your work ? .

“A. Yes, that I should be paid for my work. * * *

Q. Did you go and take care of your husband’s mother, Sarah A. Barclay, on account of the agreement you made with your husband by which you were to receive pay for your services ?

“A. No. If you will let me tell you what was said—

Q. I ask you to answer the question.

“A. Partially I did, but I had other assurances before, of course.

‘ ‘ Q. Then you did not go there on account of this agreement, expecting your pay because your husband agreed to give you your services ?

“A. He made the agreement with others before he made the agreement with me.

Q. It was on account of this agreement that your husband made, giving you your services, that you went there, was it ?

“A. It was, of course.”

This testimony was admitted by the court “ not to bind you (the estate) on any bargain made between her and her husband, but to show that the arrangement between these two was that she was to have her own services. That is all the offer amounts to.” The specific objection to the introduction of this testimony was that such a bargain between husband and wife must be shown to have been brought home to the decedent, and to have been assented to by her. See Mason v. Dunbar, 43 Mich. 407. If there was an arrangement that claimant should be paid, known and assented to by the husband, to the knowledge of decedent, so that liability to the wife personally was affirmed and liability to the husband was negatived, the rule that “it is not enough to show that'the husband has given the wife her services, but the other party must also understand that contract relations between himself and the wife exist, and that the wife expects compensation” (Mason v. Dunbar) is not violated. The objection that this testimony tended to prove a specific arrangement with decedent was not made.

Decedent lived some two years after the death of her son, the husband of claimant, and after the alleged services were performed. Evidence supports the idea that she was, during this time, able to pay her debts, and that no claims were presented against her estate excepting that of this claimant and two others amounting to less than |32. There is no evidence-tending to show any demand for pay made by claimant during the life of decedent. There is evidence in the form of a written release, executed by claimant, that on February 20, 1905, but whether this was before or after the present claim was presented does not appear, she, formally, as widow and residuary legatee of Frederick W. Barclay, for a stated consideration, released and discharged all rights “I may have in the estates of said Jonathan S. Barclay [husband of "decedent] and Sarah A. Barclay, as residuary legatee and devisee of said parties deceased or as heir at law of said parties.”

In a request to charge, counsel for the estate recited the fact that decedent lived two years after the last services were performed, that a settlement as above indicated was made, and no demand for services was made; but they did not ask the court to make any application of the facts — simply to recite them. The argument found in the brief consists of the statement that this request was warranted by the evidence. These facts were not controlling of the motion to direct a verdict for the estate. Any other application of them should have been specified in the request to charge. The release was in evidence, and the jury instructed to consider all of the testimony in the case.

We find none of the errors well assigned, and the judgment is, therefore, affirmed!

Carpenter, 0. J., and Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LAMB v. UTLEY.
    1. Sales — Contracts—Modification—Retention of Title.
    The parties to a contract for the sale of goods have an undoubted right to so modify it that the seller shall retain title to the goods until they are paid for.
    2. Same — Delivery of Goods — Conditions Precedent — Payment . of Price.
    In the absence of an express agreement, the law will imply a contract to pay cash upon delivery of goods, and, in such case, payment or tender is a condition precedent to the buyer’s right of possession.
    3. Same — Retaking Property.
    If the seller delivers the goods and immediately demands payment, which is refused, he may retake them.
    4. Trover and Conversion — Conversion by Buyer — What Constitutes.
    Where a buyer of goods refuses to pay for them on delivery, and refuses to allow the seller to retake them, he is liable in trover, and the seller is not confined to an action for breach of contract.
    Error to Lapeer; Smith, J.
    Submitted November 15, 1906.
    (Docket No. 11.)
    Decided December 17, 1906.

      Trover by Clayton J. Lamb and Ernest D. Lamb against Daniel T. Utley. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      William E. Brown and Geer, Williams & Halpin, for appellant.

      John Loughnane and Stiekney & Heed, for appellees.
   Hooker, J.

To prove their cause of action, the plaintiffs introduced evidence tending to show that they, father and son, owned a quantity of baled timothy mixed (with straw) hay; that the defendant offered them $7 per ton for it, plaintiffs to deliver it f. o. b. car at Dryden, a railroad station distant a few miles from their farm; and that they accepted the offer, with the further agreement that they should load the hay upon their own account; and that the possession and title should remain in the plaintiffs until the hay should be paid for. They also offered evidence tending to show that they delivered the hay on the car; that it was sealed by the agent, and defendant directed that it be billed to his agent or to one of his customers, in another town; that one of the plaintiffs and the defendant then figured up the amount of the hay, and the cost of the same at $7 per ton, finding that sum tobe$72.50,that plaintiffs then demanded payment, which, being refused, they brought replevin against the railroad company; that suit being discontinued, after the agent, acting under instructions from his superiors, sent the car to its destination, after which this action of trover was brought. Plaintiffs recovered, and defendant took a writ of error.

The defendant’s version, sustained by the evidence produced by him, was to the effect that the contract, under which he claims to have received this hay, was made orally on February 16th; that he then bought, and the plaintiffs sold, certain clover hay and certain timothy hay mixed, then present in plaintiff’s barn, at $8 per ton; that he was to bale the clover and also the hay after plaintiffs should have removed enough o£ the straw to make it conform to a merchantable grade, as was done the fall before on a purchase of some timothy mixed, from the same mow; that the plaintiffs were to draw the hay and load it on a car at Dryden station. Defendant paid $30 down upon it.

This testimony tended to show that he sent his men to bale the hay, that after baling the clover, they started to bale the timothy, plaintiffs professing to grade it according to contract; that after baling a portion, they refused, to bale more for the reason that plaintiffs left too much straw with the hay, when plaintiffs said:

• “ Well, you go on and bale it, and I will make it right with Utley.”

They then baled the remainder and, upon the next meeting of the parties, the adjustment of the price to be paid for the timothy was attempted, but they did not agree. Several other attempts were made, and, while defendant demanded the delivery of the clover, he refused to take the timothy in its ungraded condition, unless they would agree upon a price, and plaintiffs refused to draw the clover, unless they could agree upon a price for the timothy, although demanding that defendant take it all at a discount of $10 from the aggregate price, such demand being accompanied by a notice that plaintiffs would treat it as defendant’s hay, and sell it on account if he did not take it.

On April 2d the defendant, having caused a car to be sent for his use, gave one of his balers a note to be delivered to the plaintiffs which was as follows:

“ If you will deliver the straw today, I will állow you. $6.50 per ton for it.

“D. T. Utley.”

He instructed his agent to give the note to the plaintiffs, and that ‘ ‘ if they refused to bring the hay for $6.50 to tell them that defendant would allow him $7 for it, and to say no more about it,” and that he gave the agent no authority to make or accept any other proposal or arrangement. Churchill, the agent, testified that he carried out these instructions, and that, after consultation, the father said to his son, “ I guess, Ernie, we had better hook up and draw it,”that he ( Churchill) “got up to come awav, and C. J. Lamb came and spoke something about that he wanted to retain title or something of that kind, and I asked him if he ever knew Utley to buy anything that he didn’t pay for,” and that he “did not understand that he said he would retain title or possession.”

The plaintiffs did not dispute the foregoing testimony up to the point of the interview with Churchill. As to that, they admitted that to be the interview upon which they rested their claim of a new contract, taking the place of that of February 16th. They testified, further, in regard to it:

“After reading the note I told Mr. Churchill I would not accept $6.50 a ton for the hay. He then said that Mr. Utley told him that if he would not take $6.50 that he was to offer $7 a ton or w.ould give him $7. I then told him ‘ that was the proposition I have been making to Utley right along, and I will do that, but,’ says I, ‘ understand that I will reserve the title to this hay, possession of it, to be my hay until it is paid for.’ Says I, I will load the car on my own account and when Utley pays me for the hay it will be his hay.’ Mr. Churchill agreed to that. He said that- Utley was a man that was well off, I believe. And he asked the question, did I ever know Utley to buy anything that he did not pay for, something like that. And he gave me to understand that Utley would pay me for the hay under the terms of the contract. I talked the matter over with my son and told him that I would load the car on my own account and Churchill was to work for me that day loading that car, and not for Utley, for I loaded it. He agreed to that. I hauled the hay to the car. I had no conversation with Utley so that he would understand what the bargain was. I had no conversation with Utley except incidentally as we were loading the hay.

Q. Well, to refresh your recollection, did you make any or say anything as to the offer which you received from Utley ?

“A. I did.

Q. And what did you do ?

“A. After we had agreed on the terms of the contract—

Mr. Brown: I object to that as immaterial.

“ The Court: Take it. (Exception for defendant.)

“A. After we had agreed on the terms of the contract I turned the note over and wrote. Made a memorandum agreement on the back of the note. This was in the presence of Mr. Churchill. I then read it to Mr. Churchill and he then agreed to it.

Q. Do you know whether or not Mr. Churchill was acting as the agent of Mr. Utley at that time ?

“A. He was.

Q. Have you heard Mr. Utely admit it since that time?

“A. I have heard him say he. sent him down there to do that business. (Memorandum offered in evidence. Objected to as incompetent and immaterial.)

‘ ‘ The Court: It may be admitted. (Exception for defendant.)

“ Memorandum read:

‘“Received the within of W. T. Churchill, 8 a. m. April 2nd. Churchill said that he was authorized by D. T. Utley to see if I would not accept the within offer at 86.50 per ton, Utley would pay 87. I refused 86.50, and then Churchill told me Utley would pay §7 per ton. I accepted it at 87 per ton, I to load car on my own account, and turn it over to Utley on receipt from him of 87 per ton.

“ ‘ Witness: Ernest Lamb.

“‘C. J. Lamb.’”

The controverted questions, both of law and fact, center in the interview with Churchill.

There is enough in the undisputed testimony to compel the conclusion that the arrangement made on April 2d was not intended by either party as a new contract by which the transaction of February 16th was to be abandoned. It was nothing more nor less than an adjustment of their difference about the grading of the timothy, and to that extent a modification of the earlier contract. McCombs v. McKennan, 2 Watts & S. (Pa.) 218. The only thing, in that connection, about which the parties disagree is the effect of the alleged talk about retaining possession of title. There can be no doubt of the right of the parties to modify the original contract in that respect, whatever opinion we may entertain of the effect of that contract upon the title or right of possession, and as the. parties disagree regarding what transpired, it made a proper question for the jury, unless we should say, as a legal proposition, that it did not affect the original contract. We need not, however, discuss that question. The original contract, as modified by the reduction of the price of the timothy to $7, is the ground on which the defendant stands. If we concede his claim-in that regard, we must say that, under that contract, the most that can be said is that he agreed to pay $7 a ton for that hay when delivered on board of cars, for delivery and payment were concurrent acts. In the absence of an express agreement, the law will imply a contract to pay cash upon delivery, and, in such a case, payment or tender is a condition precedent to the buyer’s right of possession, and the seller is not bound to deliver until payment is made or tendered. See Benjamin on Sales (7th Am. Ed.), p. 299; 21 Am. & Eng. Enc. Law (1st Ed.), p. 563; Robbins v. Harrison, 31 Ala. 160; Robinson v. Marney, 5 Blackf. (Ind.) 329; Hundley v. Buckner, 6 Smedes & M. (Miss.) 70; Goldsmith v. Bryant, 26 Wis. 34; 24 Am. & Eng. Enc. Law (2d Ed.), p. 1095; Clark v. Dales, 20 Barb. (N. Y.) 61; Empire State Type Founding Co. v. Grant, 114 N. Y. 40.

If the seller delivers the goods and immediately demands payment, which is refused, he may retake the property. Benjamin on Sales (7th Am. Ed.), p. 299, and cases cited; Richardson Drug Co. v. Teasdall, 52 Neb. 698; Wiggins v. Snow, 89 Mich. 476. As the testimony shows that this was a cash sale, and there is nothing indicating a waiver of the right to withhold title and possession, until payment was made, it was the duty of the defendant to permit the plaintiffs to retain or retake the hay, unless he was willing to pay for it. Instead, he converted it to his own use, it being apparent that he received it or its proceeds. This gave plaintiffs the right of action for a wrongful conversion, and it is not correct to say, as it is claimed that we should do, that the remedy must be confined to. an action for breach of contract. Wiggins v. Snow, supra. As we are able to say that upon the face of the record the court might have properly directed a verdict for the plaintiffs, and no testimony offered by the defendant was improperly excluded, the errors alleged were without injury to the defendant.

The judgment is affirmed.

Carpenter, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    JERSEY v. JERSEY.
    . 1. Wills — Interlineations—Presumptions.
    Interlineations of the words “death” and “signed in the presence of ” in a will, in no way affecting the disposition of the property, will be presumed to have been made before the will was executed.
    2. Same — Probate Appeal — Statement op Grounds — Necessity.
    Under sections 669, 671, 1 Comp. Laws, on appeal from probate court, the appellant is confined to the issues raised by his claim of appeal.
    8. Same — Objections not Made Below.
    The claim that the probate court was without jurisdiction of a will contest because of the death of the proponent and beneficiary and failure to have an administrator appointed to continue the proceedings, will not be considered when first raised in this court.
    4. Same — Lapsed Legacy.
    Where there is no provision in the will to the contrary, a legacy vests as of the date of the decedent’s death and does not lapse, by death of the legatee before probate of the will.

      Error to Macomb; Tucker, J.
    Submitted November 15, 1906.
    (Docket No. 39.)
    Decided December 17, 1906.
    Sarah M. Jersey presented for probate the last will and testament of Wellington Jersey, deceased. The will was allowed in the probate court, and William W. Jersey and others appealed to the circuit court. There was j udgment for proponent on a verdict directed by the court, and' contestants bring error.
    Affirmed.

      Morse & Davis, for appellants.

      Thorington & McKay (Seth W. Knight, of counsel), for appellee.
   Ostrander, J.

Two questions are presented upon the record — one whether there was any evidence affecting the validity of the will which should have taken the case to the jury; the other whether the estate and interest created by the will had lapsed.

1. As to the first proposition, it is claimed by contestants that there was evidence tending to prove (a) that the instrument sought to be probated had been altered after its execution; (6) that testator was mentally incompetent; (c) that the will was procured by fraud and undue influence.

(a) The original will is returned to this court. It is asserted that the word “ death,” in the body of the instrument, and the words “signed in the presence of,” in the attesting clause, were added after execution. The witnesses were acquaintances of the deceased, and both of them were sworn and gave testimony identifying the signatures as those of testator and of themselves, respectively. Each of them testify positively that on going to testator’s house he (testator) said he had invited them in to witness his will; that he signed it in their presence; that they signed it in his presence, and in the presence of each other; that Mr. Jersey declared the instrument to be his will, and that they might read it, but he preferred they should not; that each of them read enough of it to ascertain that it was a will; that the testator appeared to bp of sound mind and uninfluenced in the transaction. It is true that one of the subscribing witnesses is not able to state positively that the words claimed to have been added were in the will when he signed. The fact is of little consequence. The alterations, if they are alterations, are not on their face suspicious, and in no way affect the disposition of property. If the word ‘ ‘ death ” was omitted when the instrument was first prepared, and its position is some indication that it was, the reading would have been “in the event of my before that of my wife.” The word “my ” first occurring is at the end of a line; the word “ before” at the beginning of the next line. The word “death ” is placed ahead of the word “ before” and on the same line, bringing some of the letters to the left of the ruling, which is that of ordinary legal cap paper. The natural inference is that upon reading over the will before it was signed the omission of the word “death” was noticed and was supplied, apparently by the same hand, using the same pen and ink. It is not possible to tell from inspection whether the words “signed in the presence of” were written by the person who drew the will or made with the same pen. As in case of the word “death,” they are not suspicious, even though treated as alterations. No one could be benefited or injured by the use or omission of them. The presumption is that they were made before the instrument was executed. Wilson v. Hotchkiss’ Estate, 81 Mich. 172; 1 Underhill on Wills, p. 365. Whether they were or not, the original words of the will are not uncertain, and the probate of the instrument as originally drawn is attended with no difficulty. It is the general rule that alterations made after its execution upon the face of a will, for the purpose of amending its provisions, will not revoke the will as a whole. 3 Am. & Eng. Enc. Law (3d Ed.), p. 365.

(b, c) Testator was upwards of 70 years of age and his wife was more than 60 years old. They had been married 40 years, and two children, born of the marriage, had died. He conducted a small marble shop in Borneo until some time in Nove'mber, 1902, when he became ill with a stomach trouble. His last will was executed January 14, 1903, and gives all of his property to his wife. He died' February 2, 1903. His property was valued by appraisers at $4,912, including the house, valued at $2,500. The petition for probate of the will was made by the widow on November 26, 1904. She died December 6, 1904. The will was allowed January 3, 1905, and an appeal was taken by a brother of the testator, who alleged the specific reasons: That decedent was mentally incompetent; the execution of the instrument was obtained by undue influence; was not executed according to law; was not the last will of decedent; was not executed by decedent. In the circuit court a verdict for proponents was directed, and later, a motion for a new trial coming on to be heard, the court in denying the motion used this language:

“It appears conclusively from the evidence that the will in question was properly executed, and that the deceased, Wellington Jersey, was at the time of its execution entirely competent mentally to execute it. It appears, further, that he was under no undue influence whatever; nor is there any evidence in the case showing or tending to show that any fraud was committed in connection with the execution of the paper. I do not think there is a scintilla of evidence fairly tending to show either that the deceased was mentally incompetent Or that he was unduly influenced in the making of the will.”

It is not important to the parties or_ the profession to set out the testimony at length. A careful examination of the record leads us to the conclusion reached by the court below if we use the term “fraud” in the sense usually given it in such cases. It is contended, however, on the part of contestants, that testimony was introduced which tends to prove that through mistake or fraud the instrument does not express the will of the testator. The claim made is that the wife drew the will at the direction of her husband, the testator, and that he and she both' understood that it gave to her a life interest and estate only. For this reason it is not his will, though executed and witnessed as such. The claim is based upon certain admissions and statements made by the wife during her lifetime to various of contestants’ witnesses.

Counsel for proponent insist that no such question was properly before the court below, for the reason that the claim of appeal gives no notice or indication of this ground of attack. The statute (1 Comp. Laws, §§ 669, 671) requires notice of the appeal to be given to the adverse party by appellant, with his reasons therefor.

In Hoban v. Piquette, 52 Mich. 346, 354, opinion was reserved upon the question whether — the sole reason assigned being “that the said will was obtained by undue influence exercised upon said testatrix ” — it was competent to disprove testamentary capacity; the point not -having been made in the circuit court. We do not find that the point was made in the circuit court in this case or any objection made to the introduction of the testimony. There was a motion made to strike out the testimony as immaterial and incompetent. This motion was not followed by a ruling, although the court, as has been stated, at the close of contestants’ proofs, directed a verdict'. Assuming that the form of the objection made was not sufficiently explicit to acquaint the court with the real ground of objection as now stated, it is clear that upon a new trial the objection would be open to proponent, and, if it is a good objection, would require the court to exclude the testimony. We are of opinion that the objection is good. Boynton v. Dyer, 18 Pick. (Mass.) 1. No issues appear to have been framed. The claim that the scrivener and the testator were both mistaken concerning the meaning of the simple words used in this will, or the one that the scrivener was mistaken, or actuated by fraudulent motives, and the testator did not read the will after directing how it should be drawn, are in no way even shadowed forth in the reasons for appealing.

2. The point that the proceedings are irregular and the probate court was without jurisdiction to proceed, after the death of Sarah M. Jersey, until an administrator of the estate of Wellington Jersey had been appointed, in whose name the proceedings to probate the will could have been continued, does not seem to be open to contestants here. Nor is there merit in the one that the legacy lapsed by the death of Mrs. Jersey before the will was probated. As to the first proposition, it seems to be advanced here for the first time. As to the other, we find no evidence of a refused legacy or devise. The will of decedent speaks from his death, at'which time the sole beneficiary was living, and at which time the estate, there being no provision in the will to the contrary, vested. Rood v. Hovey, 50 Mich. 395.

No other questions require discussion.

We find no reversible error, and the judgment is affirmed, with costs of this court to proponent.

Carpenter, C. J., and Montgomery, Hooker, and Moore JJ., concurred.


text:
    POST v. SUPREME COURT, INDEPENDENT ORDER OF FORESTERS.
    Beneficial Associations — Certificate—By-Laws—Suicide—Insanity — N OTIOE.
    Where the constitution and laws of a mutual benefit society provide that a suicide shall forfeit all claim to benefits unless it shall appear to the satisfaction of the executive council that he was insane, and prior to committing suicide was so known and reported to the supreme secretary, and there is no evidence that insured was so known and reported, or that any such claim was made in the tribunals of the order, there can be no recovery on the certificate.

    Error to Saginaw; Snow, J.
    Submitted May 4, 1905.
    (Docket No. 144.)
    Decided June 8, 1905.
    Rehearing-denied December 17, 1906.
    Assumpsit by Louisa Post against the Supreme Court of the Independent Order of Foresters upon a benefit certificate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Dickinson, Stevenson, Cullen, W'arren & Butzel (J. Shurley Kennary, of counsel), for appellant.

      W. 3T. Denfeld, for appellee.

       As to effect of insanity on condition as to suicide in life insurance policy, see note to Mutual Life-Ins. Co. v. Wiswell (Kan.), 53 L. R. A. 358.

   Hooker, J.

The plaintiff’s husband, Herman Post, was initiated into Court Valley 232, a subordinate branch of the defendant order, on February 3, 1896, and soon after received the benefit certificate dated March 10, 1896, upon which this action was brought, by his widow, after-his death by suicide by hanging, on April 24, 1898. The application made by deceased contains the agreement:

“ That this declaration, together with those answered in my medical examination paper, and the constitution and laws of the order, shall be a part of the contract with the Supreme Court of the Independent Order of Foresters.”

The benefit certificate contains the following:

It is hereby expressly understood and agreed that at the date of any claim accruing, the said brother shall be a member in good standing in the order, and not disqualified according to the constitution, laws, and rules or regulations prescribed from time to time by the Supreme Court of the Independent Order of Foresters. * * *

“I hereby expressly agree that the constitution and laws of the Supreme Court of the Independent Order of Foresters, as well as any and» all amendments thereof, which may be adopted from time to time by the said supreme court, shall be a part of the contract. * * *

“I hereby further expressly agree to the provisions of sections 187, 213, 217, 222 and 258 of the constitution and laws of the Supreme Court of the Independent Order of Foresters.”

Section 258, expressly agreed to by deceased, is :

“(1) Any member of the order who commits suicide shall ipso facto forfeit all benefits of whatsoever kind, which his beneficiary or beneficiaries, heir, or heirs, or personal representative or representatives, would otherwise have been entitled, under the constitution and laws, to receive from the supreme court, or from the subordinate court of which the deceased was last a member.

“ (2) If, however, it is established to the satisfaction of the executive council, or supreme court:

“ (a) That the deceased brother at the time of committing suicide was a lunatic or person of unsound mind: provided that the act of suicide alone shall not constitute sufficient grounds for declaring that such person was a lunatic or person of unsound mind; and, provided further, that prior to committing the suicide the brother shall have been known as a lunatic, or of unsound mind, and had been so reported to the supreme secretary as such; and “ (b) that such insanity was not due to, nor caused by intemperance, immorality, evil habits, or misconduct of the deceased, then in such case the benefits shall not be forfeited, as provided in subsection one of this section. *

_ “(3) The onus of proof of the facts set forth in subsection_ two above shall be upon the beneficiary or beneficiaries, heir or heirs, or personal representative or represéntatives of the deceased.

“(4) In case the beneficiary or beneficiaries, heir or heirs, or personal representative or representatives fail to establish the facts set forth in subsection two above, to the satisfaction of the executive council or supreme court, all payments that may have been made by such felo de se for any benefit fund of the supreme court shall be repaid to • the beneficiary or beneficiaries, heir or heirs, or personal representative or representatives of such felo de se.”

Supreme court constitution, § 43, says:

“43. (1) The right of appeal shall be vested in every member of the order, and in case of the death or disability of a member, the right of appeal shall be vested in his beneficiary or personal representative.

_ “ (2) The right of appeal shall also be vested with every high court, subordinate court, or juvenile court, or en- • campment of Royal Foresters, and an appeal shall lie against the action or decision of any officer, or of any court or encampment, except that of the supreme court, whose action shall be final and conclusive in all cases.”

The defendant is an association organized under the laws of Ontario. ' Proofs of claim for the mortuary benefit were made by the officers of Court Yalley No. 232, at Saginaw, and mailed to the headquarters of defendant. The following answer was received in due time:

“I. E. (H) May 19, 1898.

“Court Yalley No. 232.

“X. B. Konkel, Esq., C. D.,

“122 S. "Washington St.,

“Saginaw, E. S., Mich.

“Dear Sir and Brother: We have the proof of claim for mortuary benefit on account of the late Brother Herman Post, who committed suicide on April 24, by hanging himself.

“Section 265 designates the course of procedure to be pursued by subordinate courts on the death of a member. Section 264 relates to the method'of procedure at the head office after the claim has been received of the supreme secretary. By the provision of section 258 it will be seen that the method of procedure as designated in section 264 does not apply when a member commits suicide. The supreme court has reserved to itself and the executive council the passing upon claims of members who commit suicide, as will be seen by section 258 (2). It is therefore not within my province as supreme chief ranger to pass upon this claim.

“ Section 258 provides that any member who commits suicide shall ipso facto forfeit all benefits of whatsoever kind that his beneficiaries would otherwise be entitled to receive from- the supreme court under the constitutions and laws. But if it be established to the satisfaction of the executive council or supreme court that the deceased brother at the time of committing suicide was a lunatic or person of unsound mind, and that such insanity was not due to nor' caused by intemperance, immorality, etc., then in such case the benefit will not be forfeited. The onus of this proof shall be upon the beneficiary.

“ The executive council will meet on the 18th of June, and you will therefore be good enough to place the enclosed copy of this letter in the hands of Louisa Post, widow of the late brother, who is the beneficiary named in his benefit certificate and if she desires to submit proofs (affidavits) to prove that the late brother was insane at the time of committing suicide, the same will be considered by the executive council. Until such time this claim will receive no further consideration.

Fraternally yours in L. B. & C.

“S. R.”

Plaintiff acted upon the suggestions given, and employed Lambson & Denfeld, attorneys, who prepared affidavits of several persons, and sent them on June 14th to the defendant. They were duly received. All of the papers were submitted to the executive council at its next regular meeting, and they were considered by it. This body determined to send a member of itself to Saginaw to examine witnesses and report, and this was done. The affidavits taken by him were considered by the executive council, and it was the unanimous opinion of the full committee that the proof offered did not show that Post was insane, a lunatic, or person of unsound mind at the time, or had been so known before he committed suicide, and the matter was referred to the supreme court of the order, which was to and did afterwards meet on August 28, 1898. All of the papers were laid before it, and the matter was referred to its standing committee on appeals, and on September 8, 1898, this committee reported the claim, together with all of the papers referred to, with the recommendation that the claim be disallowed. The matter was fully considered by the supreme court, and after such consideration the report and recommendations were by resolution unanimously adopted by the supreme court.

Section 258, hereinbefore quoted, precludes recovery of benefits where the insured- commits suicide. That is the rule, from which the beneficiary can be relieved only by satisfying the executive council or supreme court (1) that deceased was at the time of the suicide of unsound mind; (2) that prior thereto he shall have been known and reported to the supreme secretary as such. There is nothing in the case to indicate that the case was ever so reported to the supreme secretary, or that any such claim was made in the tribunals of the order, nor is any such claim made in this case. The court should have directed a verdict for the defendant, instead of allowing the case to go to the jury. It is unnecessary to pass upon other questions.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Carpenter, McAlvay, and Blair, JJ., concurred.


author: Moobe, J. Blair, J.

text:
    MATHEWSON v. SUPREME COUNCIL ROYAL ARCANUM.
    1. Insurance — Mutual Benefit Societies — Beneficiaries — Change — Amendment of Statute — Effect.
    Where, after the issuance of a benefit certificate, the statute under which a mutual benefit society is organized is amended with respect to the classes of persons who may be designated as beneficiaries, the statute not expressly requiring acceptance by societies already organized, the designation by a member of a beneficiary from an added class is one to which the society has a right to assent, and does assent by issuing a certificate to the member payable to such beneficiary, with knowledge that the beneficiary is one of the added class, notwithstanding the society does not expressly avail itself of the statutory amendment by change of its by-laws. Per Moore, Grant, and Montgomery, JJ.
    3. Same — Beneficiaries—Who Entitled — Next of Kin.
    Where the by-laws of a mutual benefit society provide several grades of persons, any one or more of whom may be beneficiaries, and the twelfth grade is the “member’s next of kin who would be distributees of the personal estate of such member upon his death intestate,” grandnephews and grandnieces may be designated as beneficiaries under such grade, though there are persons living belonging to the preceding grades, and who would take his estate to the exclusion of the beneficiaries should he die intestate. Per Blair and MoAlvay, JJ. ''
    Appeal from Kent; Wolcott, J.
    Submitted February-14, 1906.
    (Docket No. 154.)
    Decided December 31, 1906.
    Bill by Rebecca M. Mathewson against the Supreme Council of the Royal Arcanum to enforce the payment of a benefit certificate. The defendant filed an answer in the nature of a cross-bill to establish the title of said certificate in others. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Ganson Taggart and S. W. Barker, for complainant.

      D. D. Aitken {Be Vere Hall and John Haskell Butler, of counsel), for defendant.
   Moobe, J.

From a decree dismissing the bill of complaint the case is brought here by appeal. The questions involved are law questions. There is no substantial difference between counsel as to the facts.

Defendant is a mutual benefit association organized November 5, 1877, under the laws of Massachusetts, which laws then provided that associations—

“ May, for the purpose of assisting the widows, orphans or other dependents of deceased members, provide in their by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, then to be forthwith paid to the person or persons entitled thereto. * * * Associations may be formed under said act [chap. 375, Acts 1874] for the purpose of rendering assistance to the persons and in the manner above specified.” Acts 1877, chap. 204, § 1.

Articles of incorporation were signed July 14, 1877, and are as follows:

“We whose names are hereto subscribed do by this agreement associate, ourselves with the intention to constitute a corporation according to the provisions of the three hundred and seventy-fifth chapter of the acts of the general court of the Commonwealth of Massachusetts passed in the year eighteen hundred and seventy-four. Approved June 27th in said year. The name by which the corporation shall be known is the Supreme Council of the Royal Arcanum. The purpose for which the corporation is constituted is to - unite fraternally all men of sound bodily health and good moral character who are socially acceptable and between 21 and 60 years of age.

“To give all moral and material aid in its power to its members and those dependent upon them. To educate its members socially, morally and intellectually. Also to assist the widows and orphans of deceased members. To establish a fund for the relief of sick and distressed members. To establish a widows’ and orphans’ benefit fund from which on the satisfactory evidence of the death of a member of tbe order who has complied with all the lawful requirements, a sum not exceeding three thousand dollars shall be paid to his family, or those dependent on him as he may direct. The city within which the corporation is established or located is the city of Boston within said Commonwealth. The amount of its capital stock is nothing. The par value of its shares is nothing. The number of its shares is nothing.

“In witness whereof we have hereunto set our hands this 14th day of July, in the year eighteen hundred and seventy-seven.”

A certificate of incorporation was issued in the following November, reciting that the parties named had associated themselves with the intention of forming a corporation for the purpose of fraternal union, aid to its members and their dependents, assisting the widows and orphans of deceased members and establishing a fund for the relief of sick and distressed members and a widows’ and orphans’ benefit fund, etc.

, In 1882 the general statute applying to such corporations was amended so as to read:

“ A corporation organized for any purpose mentioned in section two, may, for the purpose of assisting the widows, orphans or other relatives of deceased members, or any person dependent upon deceased members, provide in its by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto.” Acts 1882, chap. 195, § 2.

The statute was again amended in 1888 (chap. 429), providing, in section 8, that benefits could be made payable to the husband, wife, children or relatives of or persons dependent upon such member; section 12 requiring every corporation to file annual statements, and section 17 providing that corporations existing may reincorporate; “provided that nothing in this act contained shall be construed as requiring or making it obligatory upon any such corporation to reincorporate, and any such corporation may continue to exercise all rights, powers and privileges conferred by this act or its articles of incorporation not inconsistent herewith.”

The defendant association filed a certified copy of its amended by-laws to take effect August 1, 1888, in the office of the insurance commissioner of Massachusetts, the details of which it is not necessary to recite. On the 16th day of February, 1892, said association filed with the insurance commissioner of Massachusetts copies of its laws, as further amended, as follows, section 324:

“ A benefit may be made payable to any one or more persons of any of the following classes only:

“ Class First.

“Grade 1st. Member’s wife.

“ 2nd. Member’s children, and children of deceased children.

“ 3rd. Member’s grandchildren. '

“ 4th. Member’s parents.

“ 5th. Member’s brothers and sisters of the whole blood.

“ 6th. Member’s brothers and sisters of the half blood.

“ 7th. Member’s grandparents.

“ 8th. Member’s nieces and nephews.

“ 9th. Member’s cousins in the first degree.

“ 10th. Member’s aunts.

“ 11th. Member’s uncles.

“ 12th. Member’s next of kin who would be distributees of the personal estate of such member upon his death intestate.

“ In either of which cases no proof of dependency of the beneficiary designated shall be required.

“Class Second.

“To an affianced wife, or to any person who is dependent upon the member for maintenance (food, clothing, lodging or education); in either of which cases written evidence of the affianced relation or dependency, within the requirements of the laws of the order, must be furnished to the satisfaction of the supreme secretary before the benefit certificate can be issued.”

The by-laws in force on October 17, 1896, and at the time.of the death of Isaac B. Mathewson, May 20, 1902, so far as they are material to this claim, are the same as those filed with the insurance commissioner February, 1892, hereinbefore set out. ' The constitution of the order also provides, under section 3, tit. 1, chap. 2, the objects of the order:

“ 5th. To establish a widows’ and orphans’ benefit fund, from which, on the satisfactory evidence of the death of a member of the order, who has complied with all its lawful requirements, a sum not exceeding $3,000 shall be paid to the wife, children, relatives of or persons dependent on such member, as limited and described in the laws of said order relating to benefit certificate, as he may direct, in accordance with such laws.”

Under article 5, chap. 1, § 114:

“The constitution of the supreme council and the laws governing grand councils, the widows’ and orphans’ benefit fund, benefit certificates and medical examinations may be altered or amended by a three-fourths vote of the entire membership of the supreme council at an annual meeting, or at a special meeting- called for the purpose.”

Section 329, chap. 3, tit. 2:

“No benefit shall be payable to a person or persons of class second, mentioned in section No. 324, unless the dependency therein required to be shown exists at the time of the member’s death; in which case proof of such dependency at the member’s death shall be furnished in writing to the satisfaction of the supreme regent. * * *

“Sec. 330. If at the time of the death of a member, who has designated as beneficiary a person of class second, the dependency required by the laws of the order shall have ceased or shall be found not to have existed, or if the designated beneficiary is his wife and they shall be divorced upon the application of either party, or if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person or persons mentioned in class first, sectionNo. 324, ifliving, in the shares and order of precedence by grades as therein enumerated, the persons living of each precedent grade taking in equal shares per capita to the exclusion of all persons living of subsequently enumerated grades.”

Title 6, chap. 4, § 447:

“No action at law or in equity in any court shall be brought or maintained on any cause or claim arising out of any membership or benefit certificate, unless such action is brought within three years frorb the time'when such right of action accrues.”

On November 13, 1885, Isaac B. Mathewson made out application for certificate of membership, and the following certificate was issued:

“ Royal Arcanum Benefit Certificate.

[Supreme Council Seal.]

[Subordinate Council Seal.]

“This certificate is issued to Isaac B. Mathewson a member of Bryant Council No. 183, Royal Arcanum, located at Grand Rapids, Mich., upon evidence received from said council that he is a contributor to the widows’ and orphans’ benefit fund of this order; and upon condition that the statements made by him in his application for membership in said council, and the statements certified by him to the medical examiner, both of which are filed in the supreme secretary’s office, be made a part of this contract, and upon condition that the said member complies in the future with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the supreme council to govern said council and fund. * * *

“These conditions being complied with, the supreme council of the Royal Arcanum hereby promises, and binds itself to pay out of its widows’ and orphans’ benefit fund to Rebecca M. Mathewson, wife, a sum not exceeding three thousand dollars, in accordance with and under the provisions of the laws governing said fund, upon satisfactory evidence of the death of said member, and upon the surrender of this certificate, provided that said member is in good standing in this order, at the time of his death, and provided also that this certificate shall not have been surrendered and another issued at his request, in accordance with the laws of this order.

“Dated December 17, 1885.”

The laws of the 'order also had this provision:

“ A certificate may be made payable to a bank or other corporation in trust for the beneficiaries; or to a person who may receive the proceeds for the benefit of the beneficiary or beneficiaries within the classes designated by the laws of the order. The name and relationship of the beneficiary must be specified in all such cases.”

On the 13th day of October, 1896, Mr. Mathewson surrendered this certificate and made application for a new one tp be payable to the Smithfield Savings Bank of Greenville, Rhode Island, in trust for Gladys Ardell Walsh, daughter, and Frederick Earl Walsh, son, of his sister’s daughter. A certificate was thereafter, and on the 17th day of October; 1896, issued in accordance with such request, such second certificate being in the identical form as the first one issued, except as to the beneficiaries, date, etc. Isaac B. Mathewson died May 20, 1902.

August 30, 1902, the defendant sent a draft for $3,000 to N. S. Winsor, cashier of the National Exchange Bank, to pay the death loss, with instructions, among other things, to secure a surrender of the certificate properly receipted. Complainant was at this bank after the draft arrived there, and made inquiries about it, and, it is claimed, promised to forward the certificate on her return home, and that, relying upon her statement, such fund was duly paid to the trustee by defendant without any notice of any claim of complainant.

It is' the claim of complainant that, at the time she was at the bank and made the inquiries, she did not know what her legal rights were. Later, some correspondence was had which did not result in an agreement, and this bill was filed, complainant asking a decree in her favor for the entire fund. Counsel for complainant say the questions involved are:

“ (1) The authority of the defendant association to enact the laws providing who may be made beneficiaries.

“(2) Whether such laws are binding on the members and on the association, and whether they can be arbitrarily waived by the officers.

“ (3) Whether the grandniece and grandnephew (named as beneficiaries in the second certificate) come within the terms of such laws:

“(a) Under the designation in grade 8 as ‘member’s nephews and nieces.’

“(6) Under grade 12 ‘a member’s next of kin who would be distributees of the personal estate of such member upon his death intestate.’

“(4) Whether complainant is estopped from asserting her claim.”

Great stress is laid upon the fact that, after the statute was amended so as to include the term “or other relatives of deceased members,” defendant did not avail itself of the right to provide for the naming of “other relatives of deceased members ” but did provide by by-law for two classes of beneficiaries as already shown. It is insisted that, as neither of these classes included the term “other relatives ” it precludes the idea of any beneficiary being named who does not come within one of the classes named in the by-laws, counsel citing Burbank v. Relief Ass’n, 144 Mass. 434; Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94; Grimme v. Grimme, 198 Ill. 265; Supreme Lodge Order of Mutual Protection v. Dewey, 142 Mich. 666, and other cases to be found in the brief of counsel. We think an examination of these cases will show them distinguishable from the case at bar.

On the part of the defendant it is insisted:

1. That as grade 8 provides that nieces and nephews may be beneficiaries, this includes grandnieces and grandnephews.

2. That the beneficiaries named would come under the following provision in the twelfth grade:

“Member’s next of kin who would be distributees of the personal estate of such member upon his death intestate.”

It is argued:

“Mr. Mathewson was not precluded from selecting a beneficiary of any grade, from the second to the twelfth, inclusive, because there existed a person of the first grade, as he was permitted to select any one or more persons of any of the twelve grades. So, he could have selected his uncles of the eleventh grade, if any there were, to the ex-elusion of all persons of grade first to tenth, inclusive. The selection of any one or more persons of a given grade presupposed the exclusion from choice or the rejection of all persons of precedent grades; therefore, when he selected from the twelfth grade, he intended to exclude and did exclude and reject all persons of the precedent eleven grades. The test to be applied in sustaining or overturning his choice is: Assuming, if necessary, to support the nomination, the death of his wife, his children, his children’s children, his parents, his brothers and sisters of the whole and of the half blood, his grandparents, his nieces and nephews, his cousins in his first degree, his aunts and uncles, were Gladys Ardell Walsh, his grandniece, and Frederick Earl Walsh, his grandnephew, his relatives who would have been the distributees of his personal estate upon his death intestate, on the 17th day of October, 1896 ? Any person that was then within the statutes of distribution was a permissible beneficiary. That the designation was of the class permitted, there can be no doubt. 3 Comp. Laws, § 9322, subd. 6; 17 Am. & Eng. Enc. Law (2d Ed.), p. 543.”

3. We quote from the brief:

“ If the designation was not permissible under any bylaw of defendant, it was lawful under the amendment of 1882 of the statutes of Massachusetts. This amendment permitted associations incorporated under chapter 115 to pay benefits to the relatives of its members. * * *

“If it be conceded that the by-laws of defendant did not permit a grandniece and a grandnephew to be named as beneficiaries, the amendment to the statute did, and defendant could waive the provisions of its by-laws and permit any designation authorized by the act under which it was incorporated, as so amended. The defendant and other associations incorporated under said act have established this doctrine in the courts of Massachusetts and other States. Some of the text authorities and decisions are as follows: Niblack on Accident Insurance and Benefit Societies (2d Ed.), §§ 1.62, 230; 1 Bacon on Benefit Societies and Life Insurance (3d Ed.), §§ 46, 244; Massachusetts Catholic Order of Foresters v. Callahan, 146 Mass. 393; Supreme Council American Legion of Honor v. Smith, 45 N. J. Eq. 466; Marsh v. Supreme Council American Legion of Honor, 349 Mass. 512; Wallace v. Madden, 168 Ill. 356; Tepper v. Supreme Council Royal Arcanum, 61 N. J. Eq. 638; Wolf v. District Grand Lodge I. O. B. B., 102 Mich. 23.”

4. The designation was valid under Act No. 119 of the Public Acts of Michigan for 1893.

5. The complainant was bound to speak when she knew the money was in the bank, and she is now estopped.

Counsel cite authorities under each of the heads we have mentioned. If they are right in their contention under head three, it will be unnecessary to discuss the other questions argued.

It appears from what we have already quoted that the amendment of 1882 permitted certain persons to be designated as beneficiaries, and in addition thereto “ other relatives of deceased members.” It will not be questioned that a grandniece and a grandnephew are relatives. While this amendment to the statute was in force, Mr. Mathewson surrendered the certificate in which complainant was named as beneficiary, and asked that a new certificate might be issued “ payable to the Smithfield Savings Bank of Greenville, Rhode Island, in trust for Gladys Ardell Walsh, daughter, and Frederick Earl Walsh, son, of my sister’s daughter.” It will be observed that this application was not ambiguous. It advised the defendant fully that it was desired the new insurance should be for the benefit of a grandniece and a grandnephew. Understanding the effect of this application, the defendant on the 17th day of October, 1896, issued in accordance with the request of Mr. Mathewson a new certificate upon which Mr. Mathewson made payments until his death, a period of nearly six years.

In Niblack on Accident Insurance and Benefit Societies (2d Ed.), § 162, it is said:

"Where the law (statute) relating to the classes of beneficiaries who may take the fund of a society has been changed after the organization of the society, so as to include other beneficiaries than those first enumerated, the designation by a member of a beneficiary from an added class of beneficiaries is a designation to which the society has a right to assent, and does assent by issuing a certificate to the member payable to ‘ such beneficiary, with knowledge that the beneficiary is one of the added class. A mutual benefit society was incorporated under a law providing for the accumulation of a fund ‘ for the purpose of assisting the widows, orphans, or other persons dependent upon deceased members.’ Afterward the law was so amended as to read ‘for the purpose of assisting the widows, orphans, or other relatives of the deceased, or any person dependent on deceased members.’ The society did not adopt the statute amending the act under which it was incorporated. A person who became a member after the amendment of the law designated, as his beneficiary, his mother, who was not then, or at any time afterward, dependent upon him for support. Subsequently the member married, and died in good standing in the society, leaving his widow and his mother surviving him. It was held, under these facts, that the amending statute needed no formal adoption by the society, that the designation of his mother was such as he could legally make at that time, as the law which permitted a relation, merely, not being necessarily a dependent, to be designated, was in force when he made his designation, and that his mother was entitled to receive the fund.”

Again:

“ Where the organic law of a society, the statute under which it is incorporated, is amended by an act which does not require formal adoption by existing societies, and the powers of societies are thereby enlarged by adding to the persons who may become beneficiaries, a member may, with the consent of the society, make a new designation which can only be lawfully made by virtue- of the later statute. In such a case it cannot be said that the society was exercising, and was only authorized to exercise, the more limited powers which it had under the earlier statute.” Niblack on Accident Insurance and Benefit Societies (2d Ed.), § 230.

1 Bacon on Benefit Societies and Life Insurance (3d Ed.), § 46, reads:

“ A statute enlarging the powers of a beneficiary association takes effect without formal adoption by the association, and when, after such legislation, an application fo.r .membership is accepted, it cannot be said, in the absence of any express determination on the part of the association, that it was exercising the more limited powers-under the earlier statute.”.

Again:

“ It has been held that the association is not obliged to formally accept the provisions of an enlarging statute which applies to certificates issued before the act was enacted.” 1 Bacon on Benefit Societies and Life Insurance (3d Ed.), § 244 a.

In Massachusetts Catholic Order of Foresters v. Callahan, 146 Mass. 392, among other things, it is said :

“Under the statutes of Massachusetts as they existed in 1879, when the corporation was originally formed, the only right which the association had to provide for or to accumulate a fund for the purpose of paying a sum upon the decease of its members was ‘ for the purpose of assisting the widows, orphans, or other persons dependent upon deceased members.’ Pub. Stat. chap. 115, § 8. This section was amended by Acts of 1882, chap. 195, § 2, which provided that the fund thus authorized should be, ‘for the purpose of assisting the widows, orphans or other relatives of deceased members, or any person dependent upon deceased members.’ The association republished its constitution and by-laws in 1882, subsequent to the passage of the statute of 1882, with certain alterations made subsequent thereto, although the existence of that statute is not alluded to or noted. These changes had no reference to, nor were they occasioned by reason of, the larger powers with which the corporation was invested. They related to matters of detail only. It was under this constitution of 1882 that the association was conducting its business when John J. Callahan became a member, in 1883.

“It is the contention of Mrs. Keefe [the administratrix of John’s wife], that although Catherine Callahan, as the relative of her son, might have been designated under the statute of 1882 as a beneficiary, yet this statute had never been adopted by the association. The statute required no formal adoption. It enlarged the powers of this and other similar beneficiary associations. When, after the passage of the statute of 1882, the association accepted the application of John J. Callahan, and the designation which he might then lawfully make, it could not be said by it, or by any claimant, that it was exercising, and was only authorized to exercise, the more limited powers which it had under the earlier statute.

“ It is also contended, that by its constitution the association had so limited itself that it could not accept a designation of the mother. We have no occasion to consider whether a beneficiary association might not by its constitution so limit itself in its operations that its endowments should be only for the benefit of one or more classes of those whom it might lawfully entitle thereto, as for the widows only, or orphans only, of deceased members. We find no such intention manifested by this association. The argument on behalf of Mrs. Keefe is, that the constitution of 1882, under the title ‘object’ has the effect to limit the benefits of the association to two classes of persons only, widows and orphans. The ‘name and object’ of the association are stated in a preamble to the constitution. It is declared that the object of the organization is to promote friendship, unity and true Christian charity. It defines each, unity being defined as ‘ unity in uniting together for mutual support, and in making suitable provision for the widow and the orphan.’ It would be a very forced construction to infer from this generality, that the association had thus excluded itself from making provision for those who were dependent on the deceased which it legally might make when the constitution was originally formed, or for his relatives which it might lawfully make when Callahan became a member. The constitution of 1'879, which was the one originally made, and that of 1884, which was in force when Callahan died, are each prefaced by the same recital of ‘ name and object ’ yet each constitution declares, in defining the duties and powers of the subordinate court, that the principal object of the association is to secure ‘to the dependents of its members’ the sum of $1,000, payable on the death of such member. It is thus manifest, that under these two constitutions it could not have been intended to limit the benefits of this association to the widow and orphan, merely because they alone are mentioned in the declaration of its ‘ name and object.’ In the constitution of 1882, in defining the powers of the subordinate courts, the phrase above quoted as to securing ‘tothe dependents of its members’ $i,000, is not used. Under that constitution to hold that, because it had adopted as its preface a statement that among its purposes was a suitable provision for the widow and orphan, it could not provide for others, as ‘ relatives ’ or ‘dependents,’ for whom the statute permits such association to provide, would not be a reasonable construction.

“ The deceased member had a right to designate as the beneficiary of the fund any person coming within the statutory provisions which enumerate those who may be thus designated. The law which permitted a relative merely, not being necessarily a dependent, to be designated, was in force when he made his designation. The designation of his mother by the deceased was therefore, one to which the association had a right to assent, as it did assent, by accepting the order of the deceased. Briggs v. Earl, 139 Mass. 473; Supreme Council American Legion of Honor v. Perry, 140 Mass. 580; Elsey v. Relief Ass’n, 142 Mass. 226. This was not revoked by the subsequent marriage of John J.; and his mother, Catherine Callahan, is now entitled to receive the fund of $1,000.”

See, also, the cases cited in the quotation made from brief of counsel for defendant.

We think, then, after the amendment of 1882 the statute authorized a member to designate as a beneficiary a relative, and that Mr. Mathewson having surrendered one certificate and reqested another to issue in its place to his grandniece and grandnephew, and the defendant having acted upon said request by issuing said certificate, naming them as beneficiaries, it must be deemed to have assented thereto. Having reached this conclusion, it is unnecessary to discuss the other questions.

The decree is affirmed, with costs.

Grant and Montgomery, JJ., concurred with Moore, J.

Blair, J.

I concur in the affirmance of the decree on the ground upon which, as I understand, the circuit judge based it, viz.: that the grandniece and grandnephew were proper and lawful beneficiaries under the twelfth grade of section 324 of defendant’s laws.

I agree with the interpretation of complainant’s counsel that the words “next of kin,” as used in this section, mean those who would be next of kin on the failure of the eleven preceding classes. This simply defines, however, what persons shall constitute the twelfth grade, limiting them to those who would be next of kin, etc., in. case of the death of all of the persons included in the eleven preceding grades. It was not the intention of this law, in my opinion, to prohibit the selection of beneficiaries from this grade in cases where there were' existing members of a preceding grade. Such a construction would necessarily involve the conclusion that a married member could only select his wife. The section provides that: “A benefit may be made payable to any one or more persons of any of the following classes only; ” and I think that it was the plainly expressed intention of this statute to authorize a member to select his beneficiaries from any one of the enumerated grades, regardless of the existence of members of preceding-grades. Any other interpretation, in my opinion, would do violence to the letter and spirit of the law.

McAlvay, J., concurred with Blair, J.


author: Montgomery, J.

text:
    SMITH v. SMITH.
    1. Divorce — Extreme Cruelty — Practice — Defenses not Pleaded.
    Whether a divorce on the ground of extreme cruelty should be denied on a showing of acts of extreme cruelty on the part of the complainant not pleaded and wholly disconnected from the acts of defendant complained of, in view of section 8625, 3 Comp. Laws, quaere.
    2. Same — Evidence—Sufficiency.
    On a bill by a husband for a divorce on the ground of extreme cruelty, evidence examined, and held, insufficient to support a decree for complainant.
    ON MOTION TO RETAX COSTS.
    Costs — Witnesses—Per Diem — Periods of Adjournment.
    Per diem for witnesses living at the place where the court is held should not be taxed for periods of adjournment.
    Appeal from Muskegon; Russell, J.
    Submitted October 12, 1906.
    (Docket No. 74.)
    Decided December 21, 1906.
    Motion for retaxation of costs submitted February 19, 1907.
    Granted April 2, 1907.
    Bill by William H. Smith against Isabelle E. Smith for a divorce. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for complainant.

      Stephen H Clinic (James O. McLaughlin, of counsel), for defendant.
   Montgomery, J.

The complainant filed a bill of complaint praying for a divorce. The bill contained the following averments:

“ For upwards of two years immediately preceding the 1st day of January, 1904, the said defendant almost wholly failed, neglected, and refused to perform the usual house» hold duties which a housewife ought to perform. She frequently refused to prepare meals for this complainant, and at times secured her own meals at restaurants, and left this complainant to shift for himself as best he could. She also neglected and refused to look after the comfort of this complainant, and, although this complainant was seriously afflicted and sick with asthma, she compelled him in the winter time to sleep in a cold and illy furnished room with bare floors, while she herself occupied a warm' and well furnished room. She removed the rugs and coverings off the floor in the bedroom of this complainant, although she well knew that by sleeping in such an apartment the disease of this complainant was aggravated and made, more severe. During such period of time she frequently absented herself from their home whenever this complainant- came into the house and took their children away with her and left this complainant alone and without company.

‘A few years ago this complainant purchased and improved the premises thereafter occupied by them as a homestead in said city of Muskegon, at an expense of nearly $2,500, and then conveyed or caused the same to be conveyed to said defendant. During a period of upwards of two years prior to the 1st day of January, 1904, the said defendant frequently, told this complainant that said homestead belonged to her, and that he had no rights there or therein, and that she wanted him to leave and not return.

On New Year’s Day, 1904, after all the provisions for a New Year’s dinner had been supplied, without any excuse whatever, said defendant absented herself from home and refused to cook or prepare such dinner, and the provisions remained uncooked and unprepared, and this complainant was compelled to and did go elsewhere to obtain his dinner.”

The bill also averred that after the separation the defendant refused to join in a deed of real estate which he had theretofore sold on contract.

The answer denies the acts of cruelty charged, and also sets up various acts of misconduct on complainant’s part, and asks the benefit of a cross-bill. Before entering upon the taking of proofs the defendant withdrew so much of the answer as constituted a cross-bill,' and the case proceeded. At the conclusion of the testimony the court held that the evidence offered to show affirmatively that complainant had been guilty of misconduct was not in the then state of the pleadings open to consideration, and also held that complainant had made a case showing extreme cruelty, and granted a decree of divorce. Defendant appeals.

There is authority sustaining the holding of the circuit judge that testimony showing acts of cruelty or misconduct on the part of the complainant wholly disconnected with the acts of defendant complained of is not admissible. See- Warner v. Warner, 31 N. J. Eq. 225. Whether this rule would obtain in this State, in view of our statute (3 Comp. Laws, § 8.625), which provides that no divorce shall be. decreed in any case where the party complaining is guilty of the same crime or misconduct charged against the respondent, we find it unnecessary to determine. It may be said, however, that a divorce cause is never concluded against the judge, and many courts have refused to grant a divorce where the testimony shows a defense not pleaded. See 7 Enc. PI. & Prac. p. 88, and cases cited; 4 Enc. of Evidence, p. 777B, and case cited.

But, if the more stringent rule be accepted, we are still unable to agree with the circuit judge that a case was made out. It does sufficiently appear that the relations between the parties were strained before the time of the alleged neglect of defendant’s household duties, but the record fails to show that this was through defendant’s fault. The complaint that the defendant compelled the complainant to sleep in a cold bare room is wholly unfounded. It appears the stove had been taken down at housecleaning time, and, although there were three men folk at home, including complainant, had not been set up again. There was nothing to prevent complainant from setting the stove up. The defendant should not have been expected to.

As to the failure to get meals: The defendant had a business which she was conducting, a teachers’ agency. At times complainant would arise so late that it was impossible for her to get his breakfast and get to her business. The failure to administer to his wants on such occasions can scarcely be called extreme cruelty. She was furnished no help, did the work of the household, and attended tó the business in which she was engaged besides. As to the specific acts of cruelty charged, we do not think a preponderance of evidence is with complainant. On the contrary, we think the case of complainant is fairly met by reliable testimony.

The decree is reversed,, and the bill dismissed, with costs of both courts, and an allowance of expense money of $250.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.

ON MOTION FOR RETAXATION OF COSTS.

Per Curiam. Defendant appealed from a decree granting divorce to the complainant, and the bill was dismissed by this court, with costs.

We are now called upon to review the taxation of costs by the clerk; the questions to be considered having relation to items for witness fees and mileage, and for attendance of witnesses upon the circuit court. Testimony was taken upon the hearing of said cause upon the following dates: November 15th, 16th, and 20th; December 1st, 2d, 14th, and 16th. The cause was argued on December 16th. Adjournments were had as follows: From November 16th to November 20th; from November 20th to December 1st; from December 2d to December 14th. Per diem was taxed for the periods of adjournment; as high as 27 days being allowed for some of the witnesses, although they resided in the city of Muskegon where the court was held. This was erroneous.

We will discuss the other questions raised in connection with the respective claims:

Martha Elmore of Holton was allowed for 20 miles’ travel and 22 days’ attendance. It appears that she testified on November 20th, and was then by consent of counsel excused from further attendance. She remained in Muskegon, however, throughout the hearing, being required to do so by defendant, who testified that it was necessary. She first attended November 20th. There

should have been allowed for her:

Three trips, twenty miles each, sixty miles......... $6 00
Six days’attendance............................... 6 00
Total — ........ $12 00

Eidena McMichael, of Muskegon, should have been allowed for:

Four trips of one mile each........................ $0 40
Eight days......................r................. 8 00
Total........................................ $8 40

Clifford Smith lived in Plainwell. The defendant’s affidavit shows that she procured his attendance from that place, and that he necessarily traveled 80 miles. The affidavit of the complainant shows that he did not attend as a witness until after November 30th and after his employment at Plainwell had ceased. This is not contradicted, and we think that his own testimony corroborates this. There should have been allowed for him:

Eighty miles.....-..................... $8 00
Five days........................................ 5 00
Total................... $13 00

Isabelle E. Smith: She is the defendant, and should be allowed:

Mileage, four miles................................ $0 40
Per diem, eight days............................... 8 00
Total.......................................... $8 40

W. H. Smith, Jr.: Under the proof submitted we think that the item for this witness was correctly taxed. The witness was brought from Wyandotte, and if not retained would probably have been beyond defendant’s reach. Moreover, it was as little expense to have him stay, as to pay expenses from Chicago.

Jane Seymour: There should have been allowed for this witness:

Mileage, three trips, forty miles...................$12 00
Per diem, eleven days ........................■_____ 11 00
Total......-.....-............................ $23 00

Alta Woodring: There should have been allowed for her:

Mileage, three trips, one mile.................... $0 30
Per diem, eight days............................. 8 00
Total......................................... $8 30

Clyde Smith: It is claimed that the defendant should, not be allowed anything for this witness, upon the ground that he was a minor son, 17 years old, living with her, and supported by his father. This is a disputed question. Under the proofs we do not feel justified in disallowing this item. It should be reduced, however, to:

Mileage, four trips, one mile..................... $0 40
Per diem, eight days............................. 8 00
Total ..........................................$8 40-

The amount taxed will be reduced as indicated above. No costs of this proceeding will be allowed.


author: Blair, J.

text:
    ROOT v. BEYMER.
    1. Executors and Administrators — Duties—Tenure op Oppice.
    The functions of an executor or administrator do not necessarily cease upon a final settlement and approval of his account, but he may, if occasion arises, pursue his duties further for the benefit of the estate, unless the probate records show a formal discharge from the trust.
    3. Assignments — Validity—Blank—Tax Sale Certificates.
    Proof of the execution of a formal assignment of tax sale certificates to which the certificates were not attached and in which the name of the assignee, the numbers of the certificates, and the years for which the sales were made, were left blank, together with the fact that after the assignor’s death certificates were found in the possession of a person other than him to whom the assignment was delivered, does not prima facie prove an assignment of the certificates.
    3. Witnesses — Competency—Transactions With Persons Since Deceased.
    On the issue whether certain tax sale certificates in defendant’s possession belonged to him or the estate of plaintiff’s testator, testimony by defendant that before the execution of a certain blank assignment of tax sale certificates he had seen a power of attorney signed by decedent providing for dealing in such certificates, is incompetent under Act No. 30, Pub. Acts 1903.
    Error to Oakland; Smith, J. Submitted
    October 16, 1906.
    (Docket No. 86.)
    Decided December 21, 1906.
    Trover by Elizabeth Root, administratrix with the will annexed of the estate of Tracy W. Root, deceased, against Chárles E. Beymer and Cyrus Johnston. There was judgment for plaintiff on- a verdict directed by the court, and defendants bring error.
    Affirmed.

      McIntyre & Wheeler, for appellants.

      H. S. Woodliff, for appellee.
   Blair, J.

Elizabeth Root brings this action as administratrix with the will annexed of the estate of Tracy W. Root, for the wrongful conversion by defendants of the amount of a refund, due upon the cancellation of certain tax sales by the auditor general, and paid to the defendant Beymer. Both parties claim through Tracy W. Root, who, at a tax sale by the treasurer of Wayne county in 1865, purchased certificates of tax sale property No. 268 and No. 347 for the years 1862 and 1864.

Plaintiff claims the fund in her representative capacity. Defendants claim through an alleged assignment by Tracy W. Root to one Welsh; by Welsh to defendant Johnston and by Johnston to defendant Beymer for purposes of collection. The alleged assignment to Welsh was duly executed and acknowledged before a notary public, and delivered to Welsh on the 11th day of February, 1874. The body of the assignment was as follows:

“For the valuable consideration to me in hand paid, the receipt whereof is hereby acknowledged, I do these presents assign, transfer, and set over to-all my claim, right, title and interest in and to the within certificate of tax sale property-issued by the' treasurer of Wayne county for the years --.”

Tracy W. Root died in 1884 or 1885. Some time in the 80’s, and, as stated by defendants’ counsel in the circuit court, after Root’s death, the two certificates and the blank assignment were delivered by Welsh to defendant Johnston. The auditor general canceled the sale in 1900, and in 1901 defendant Johnston, having learned of the cancellation, filled in the first blank in the assignment with the name of “ C. E. Beymer;” the second blank with certificate numbers, “ 268 and 347;” the third blank with the years “1862 and 1864;” attached the two certificates to the assignment, and forwarded them with an application for refund to the auditor general in the name of C. E. Beymer. Defendant Johnston testified as to the assignment :

“I filled that out at the time I sent it to the auditor general’s office. I don’t know whether I made any erasures upon the paper before filling in the name of year’s taxes. I do not know whether I rectified the number of tax certificates by erasing and writing in others. I do not know whether or not I erased the paper previous to writing in the name of Beymer. The assignment was not attached to anything. ' They were delivered as separate certificates.”

At the close of the testimony, the court directed a verdict for the plaintiff.

Counsel for defendants allege that the circuit judge erred in directing a verdict for the plaintiff for the following reasons:

“(1) There is no evidence that establishes the right of Elizabeth Root, the present plaintiff, to sue in the capacity of executrix of Tracy W. Root.

(2) The assignment made by Tracy W. Root to James Welsh is valid and binding upon the parties thereto.

“(3) Elizabeth Root, suing in behalf of Tracy W. Root, even as his representative, is in precisely the same position, so far as her legal rights are concerned, as Tracy W. Root would be were he plaintiff, and Tracy W. Root having either bought the certificates in question with money furnished by James Welsh, or having purchased the certificates with his own money, and having sold them to James Welsh, and received therefor a valuable consideration, which consideration he kept and converted to his own use, is now estopped from setting up any formal defects that may appear in the assignment by which he invested the title to said certificates in James Welsh.

“(4) That the death of Tracy W. Root did not revoke the implied authority of Root’s assignee or the assignee of Root’s assignee, which authority consisted in the liberty to fill in the blank in such assignment whenever such assignee saw fit to do so, as such implied agency was coupled with an interest, and thus bringing it squarely within the one well-recognized exception to the rule that death of the principal revokes the authority of the agent.”

1. “The functions of an executor or administrator do not necessarily cease upon a final settlement and approval of his account, but he may, if occasion arises, pursue his duties further for the benefit of the estate, unless the probate records show a formal discharge from the trust.” 18 Cyc., p. 146, and cases cited in note.

2. There is no evidence in the record that the two certificates were ever delivered to Welsh, except the testimony of defendant Johnston that Welsh had the certificates in his possession after the death of Root, and delivered them to him separate from the assignment. Judge Einne, who, as notary public, took Root’s acknowledgment to the blank assignment, testified:

“ I do not know whether or not there have been any changes made in the paper. It does seem to have been disturbed somewhat. I do not know what has been done with it. I could not say as to whether it is in the same condition it was when I signed it as notary public. I have no distinct remembrance about this paper whatever. All I recognize are the signatures — my own and that of Mr. Root and the witness. I do not know whether or not it was attached to other papers at the time I took the acknowledgment. ”

These certificates showed upon their face that Tracy W. Root had purchased the parcels of land described therein and “that the said purchaser will, after one year from date (October 2, 1865), be entitled to the conveyance of the premises aforesaid upon presentation and delivery of this certificate,” etc. There was no indorsement by Root of these certificates indicating an intention to transfer them to the holder, as in the cases cited by counsel for defendants, nor was there any evidence that Welsh furnished the money to Root to purchase these particular certificates. The assignment, relied upon to obtain the draft from the auditor general, never was executed by Root. As the paper left his hand, it identified nothing. It was no more than a piece of blank paper signed and acknowledged by him. An indorsement by Root of the certificates in blank might evidence his intention to assign to the holder his interest in the certificates, as in Swan v. Whaley, 15 Iowa, 623, but in the case before us there is no evidence in the record to indicate that Root ever sold the certificates to Welsh, or intended to sell them to him. The mere fact that Welsh had Root’s certificates in his possession after the death of' Root is not, of itself, proof of ownership, and the case is barren of evidence tending to show that the possession of Welsh was that of an owner. Defendants’ case, so far as title to the certificates is concerned, must rest upon the possession of Welsh and the so-called assignment, which do not furnish even prima facie evidence of ownership. If the assignment had been attached to the certificates, a very different case would have been made. But it was not, and the evidence, so far as it goes, is quite persuasive that the assignment was originally attached to other certificates and changed to apply to the certificates in question here. The testimony of defendant Johnston that he did not know whether he erased the name of the original assignee, the numbers of the certificates, and the years for the taxes of which the lands were sold, and then filled in the blanks as they now appear is, to say the least, not calculated to inspire confidence in the regularity of the assignment. Until there was some testimony tending to show that Welsh was the owner of the certificates, his transfer to defendant Johnston could possess no validity.

The testimony of defendant Johnston that before the transfer to him he had seen a power of attorney in Welsh’s possession signed by Root and stating “that Mr. Welsh had furnished money to Mr. Root and that titles were to be bought; titles were bought in his name, were turned over to Mr. Welsh and that assignments were to be given in blank and witnessed for the purpose so that he could fill in the certificate numbers and the amount and the names from time to time as he would dispose of them,” was properly rejected by the court as being within the prohibition of section 10212 of the Compiled Laws of 1897 as amended by Act No. 30 of the Public Acts of 1903. Even if the testimony were competent, it would not help the defendants, since Welsh never did fill in the blanks, and no one else was authorized to do ■ so by the instrument.

3. There is no competent evidence tending to show that Root bought the certificates with money furnished by Welsh, nor that he sold them to Welsh, and received a valuable consideration for them. In fact, there is no ■competent evidence that Root sold the certificates at all.

What we have said disposes of the case. We think •that plaintiff made out a prima facie case against both ■defendants, and the judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Moore, JJ., concurred.