author: Ostrander, J.

text:
    ROUSSEAU v. RIIHINIEMI.
    1. Taxation — Constitutional Law — Notice oe Redemption — Payment to Register in Chancery — Redemption—Tax Title.
    Where the purchaser of a tax title served a notice of redemption in the form required by the statute at the time in force, which required the owner to make the payment of the redemption money to the register in chancery or to the tax title owner, the payment was properly made by depositing the required amount with the register in chancery, although the provisions of the statute at the time the tax title was acquired did not authorize the method of redemption adopted: The tax title owner had no vested right to the payment of the money directly to him; an amendment to the law authorizing the deposit with the register was constitutional and valid.
    2. Same — Constitutional Law — Change in Statute — Redemption — Validity.
    Upon the deposit of a sufficient sum of money with the register in chancery within the statutory limit the tax title immediately became ineffective whether the tax title owner did or did not give the proper notice to redeem.
    3. Same — Amount oe Payment — Equity—Redemption.
    After the regular sale of lands for taxes and the lapse of time in which to redeem from the sale, the interest of the owner is lost and the State acquires absolute title to the property; in disposing of the interest thereby acquired the State is authorized to sell upon condition that the purchaser give notice to the owner, and, if he does not redeem, the tax title interest becomes an absolute title. Under Act No. 142, Pub. Acts 1905, the redemptioner is required to pay the fees of the sheriff for services to be computed as upon personal service of the declaration as commencement of suit or cost of publication of this notice. Held, that it is not reasonable to assume the cost of publication of the notice and sheriff’s fees are both to be computed as in case of serving a declaration; that if there has been personal service of the notice the sheriff’s fees are to be paid as upon personal service, and if service is not had, and notice is published, the cost of publication is required to be paid.

      4. Same — Redemption—Amount of Payment.
    Where the statute defines the rights of the parties, the court cannot enlarge these rights, and the court below was in error in holding that the owner might pay, after suit was begun, a sum which he should have paid to perfect the right asserted in the suit.
    5. Same — Notice—Amount of Payment.
    The costs of attempted service of personal notice and incomplete substituted service of notice by publication were not proper items of expense to be charged against the owner, who had deposited with the register in chancery tlje amount shown in the certificate of the auditor general.
    6. Same — Notice—Register in Chancery — Amount.
    The owner of the original title is not required at his peril to ascertain whether the tax title claimant has incurred expense in an effort to serve the notice.
    7. Same' — Redemption from Sale — Determination of Amount.
    Under section 140 of the general tax law, Act No. 270, Pub. Acts 1909 (1 Plow. Stat. [2d Ed.] §1911), a redemptioner is entitled to reconveyance if he has paid the register in chancery the required sum amounting to one hundred per cent., in addition to the amount paid to the auditor general and $5.00 additional for each description.
    Appeal from Ontonagon; Cooper, J.
    Submitted January 5, 1915.
    (Docket No. 6.)
    Decided June 14, 1915.
    Bill by Edward Rousseau against Arvi Riihiniemi and others to redeem from a tax purchase. From a decree for complainant, defendant Riihiniemi appeals.
    Affirmed.

      Louis N. Legris and John Jones, for complainant.

      M. J. Sherwood, for defendant Riihiniemi.
    Referring only to facts material to the discussion and decision of the questions raised by this appeal, they may be stated as follows:
    The east half of the west half of a section of land in Ontonagon county had been sold for taxes and bid in by the State. The auditor general sold the interest of the State and deeded it September 12, 1899, for the taxes of the year 1894, requiring payment, also, of the taxes for the years 1895 to .1898, inclusive; the total paid by the purchaser being $140.75. By.various conveyances the title thus acquired passed to defendant Riihiniemi in 1908; his interest, however, dating from 1900, when he contracted to buy the land, entered into possession thereof, and made improvements thereon. The records showed that one Andrew Chapton, residing in the same county, held the original title. In 1909, steps were taken to. serve the statutory notice, and a notice in the form prescribed by the statute then in'force was duly made out and delivered to the sheriff. He made a certificate, dated April 7, 1909, of inability to find and serve Chapton, and this notice and certificate was filed with the register in chancery for Ontonagon county May 17, 1909. In the. certificate the fees of the sheriff are stated to be $1.10. Thereafter defendant Riihiniemi published the notice, its first appearance in the Ontonagon Herald being in the issue of May 29, 1909, other dates of publication of the notice being June 5, 12, 19, and 26, 1909. Proof of the publication of the notice was filed with the' register in chancery August 12, 1909, the cost of publication being $6.30. Complainant found Chapton, who, under date May 22, 1909, in the State of Idaho, executed to him a deéd of this and other land, which was recorded in Ontonagon county June 15, 1909. Complainant deposited with the register in chancery to secure reconveyance of the land $286.53 or $287.56' (both amounts are given in the testimony), on August 6, Í909, and filed the bill in this cause August 19, 1909.
    In the bill an offer is made to pay any further sum which in strict right or otherwise ought to be paid. The answer, in which affirmative relief was asked, was filed May 9, 1910, and alleges that an insufficient sum was deposited with the , register in chancery, specifying the sheriffs fee and the fees for publication of the notice, and prayed that-defendant’s title be quieted. In the answer to the cross-bill, complainant denied that it was necessary to pay the sheriffs fee or to pay the cost of publication of the notice. It is further charged in the original bill that because of certain contracts relating to the land, entered into by defendant, complainant regards himself as unable to make a proper tender of the proper sum to any one, and that the land is valuable for timber, to restrain the cutting of which an injunction is necessary. A decree having passed for complainant, which required him to pay, also, all taxes paid by defendant and his grantors, the defendant, appealing, has presented and discussed two propositions, namely:
    (1) Complainant had no right to pay the money to the register in chancery; (2) if he had that right, the sum deposited was too small, and therefore the right to a reconveyance was not secured.
    Concerning these propositions, the learned trial judge, in his opinion, said:
    “On August 6, 1909, the complainant deposited with the register in chancery the sum of $286.53 for the purpose of redeeming. There is some evidence in the case to • indicate ’ that $287.56 was the actual amount' deposited. This did not include the fee of the sheriff for endeavoring to serve tax notice or cost of publication. Defendant claims that this was not proper redemption: First, because there was no right to deposit with the register in chancery, but that the sum should have been paid direct to the defendant; second, there was not a sufficient amount deposited to comply with the statute.
    “The publication of tax notice expressly gave the right to deposit money with the register in chancery. I am of the opinion that even if this publication had not done so, the complainant would have had this right under the tax law as it was at the time of publication ; but, having expressly given the right in the published notice, defendant would- necessarily be barred from raising this objection, as by making the deposit it was in strict compliance with the published notice.
    “The bill of complaint in this case was filed prior to the time of the expiration of the six months’ notice given by the publication, and I am of the opinon that the court, having acquired jurisdiction prior to the time of the expiration of the six months, has the power and does extend to complainant the right to pay the additional amount necessary to comply with the notice. The decree will provide that the complainant pay this additional amount. The total amount which should have been deposited was $293.90 in order to redeem in compliance with the tax notice, and the complainant will pay the difference between that sum and $286.53.”
   Ostrander, J.

(after stating the facts). The court properly overruled defendant’s first contention. The payment was made at the place designated in the notice, and the form of the notice was the form required by the statute in force when the notice was given. The form of the notice which the statute required to be given by the tax title owner when he acquired the title was different from the one required by the statute in force when the notice was given. But the tax title owner had no vested right to have the money paid to him rather than to the register in chancery, and no additional duty was put upon him by the form, or the terms, of the notice required by the amended law. See Weller v. Wheelock, 155 Mich. 698 (118 N. W. 609); Dolph v. Norton, 158 Mich. 417 (123 N. W. 13). Compare, Curry v. Backus, 156 Mich. 342 (120 N. W. 796).

If a sufficient sum of money was deposited by the owner of the original title with the register in chancery within the time limited by the statute, the tax title immediately became ineffective. This is so whether the tax title owner did, or did not, give a proper notice, or whether he gave any notice. Whether the tax title owner gave a proper notice becomes important only in cases where the owner of the original title has not deposited sufficient money, in sufficient time; the right being available until the proper notice is given. The deposit which was made in fhis case was made in time. It becomes important therefore to consider the contention that the proper amount was not.deposited.

It will be remembered that when the deposit was made publication of the notice had not been completed. Section 140 of the tax law, as amended by Act No. 142, Pub. Acts 1905, provides for the giving of a notice by the tax title owner to certain persons, and, among other things, that, if the sheriff of the county where the lands are located shall return that after careful inquiry he' is unable to ascertain the whereabouts or post office address of the grantee named in the last recorded deed (in this case, Chap-ton), then the notice shall be published once a week for four successive weeks in a newspaper, and due proof of publication by the affidavit of the printer or publisher of the paper shall be filed with the county clerk and shall be in lieu of personal service.- The statute, and the form of notice therein given, demands payment, by the original title owner, of “all sums paid upon such purchase,” i. e., the purchase of the tax title, “together with one hundred per cent, additional thereto, and the fees of the sheriff for the service or cost of publication of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description without other additional cost or charges.” The cost of the particular description, the east half of west half of the section, was $140.75. This sum doubled is $281.50. Adding $5 for one description of land makes the total $286.50. If the sum deposited was $287.56, as the testimony of the clerk and the record entry on his book tend to prove, it still was not equal to the sum required to be paid if the fees of the sheriff as stated in his return, was a proper charge; the proper sum, in such case, being $287.60. If, the publication of notice having been begun, the fee of the printer,, or some of it, should have been paid, then the discrepancy is, of course, still greater.

The fact that a sufficient sum was not deposited is not controlling if it is true, as the learned trial judge held, that the court had power to permit the complainant to pay the balance after this suit was begun. This court has held, in substance and effect, that upon the regular sale of lands for taxes, and the lapse of time to redeem from the sale the interest of the owner is lost, the State acquiring an absolute title to the land; that in disposing of the interest thus acquired the State may sell, and has in fact provided for selling, upon condition that the purchaser shall give a notice to certain persons who before the sale to the State possessed, actually or apparently, an interest in the land. If the persons so notified, or some of them, do not then reedem the land — acquire the interest of the tax title owner — that interest becomes complete. Since in all disputes concerning the observance of the condition, whether by the tax title owner or the owner of the original title, the title to real estate is involved, all parties in interest have been held to a strict compliance with the statute provisions. Clothier v. Miller, 173 Mich. 530 (139 N. W. 253); Holmes v. Soule, 180 Mich. 526 (147 N. W. 621); Huron Land Co. v. Manufacturing Co., 183 Mich. 45 (148 N. W. 753); Closser v. McBride, 182 Mich. 594 (148 N. W. 756). Usually, as is true in the case before us, equitable jurisdiction is invoked and is assumed because, only because, complainant has complied with the statute, thereby acquiring rights which the court may compel defendant to respect. The statute rights of the parties can be neither enlarged nor limited by the court. The trial court was in error in holding that complainant might pay, after suit was begun, a sum which he should have paid to perfect the right asserted in the suit.

This brings, me to the consideration of some propositions presented by complainant, who claims that sufficient money was, in fact, deposited with the register in chancery. He says, first, that the sheriff’s fee of $1.10, charged by him for the effort which showed inability to make personal service of the notice, is not a lawful fee and not one which he was required by the statute to pay. The argument made is that there is no provision of law for sheriff’s fees if he fails to serve a notice, or a subpoena, or other process of a court. He says, further, that there was no substituted service of notice — and therefore no statute notice was served — until August 12, 1909, when proof of publication of the notice was filed in the office of the register in chancery. Six days before this he made his deposit. A third proposition is that, having put his deed upon record June 15, 1909, before any one had been served with notice, he became entitled to a notice. A fourth proposition is that the attempted substituted service of notice is of no effect because of the length of time which elapsed between the return of the sheriff and the publication of the notice.

Determination of the soundness of these propositions involves construction of the statute — an effort to ascertain the legislative purpose and intention. I have heretofore quoted the statute. It is ambiguous. The redemptioner must pay, or deposit, the “fees of the sheriff for the service * * * to be computed as upon personal service of a declaration as commencement of suit,” “or cost of publication of this notice.” It is not reasonable to assume that the cost of publication of the notice and the fees of the sheriff are both to be computed as upon personal service of a declaration. The true meaning seems to be as indicated, namely, if there has been personal service of the notice the fees of the sheriff must be paid, computed as upon personal service of a declaration, and if no personal service is made, but the notice is published, the cost of publication must be paid; in either event, “without other additional cost or charges.”

It is made evident by the facts before us that while the attempt is being made to serve a notice, personally, or by publication, the owner of the original title may determine to redeem by depositing money with the register in chancery. In such a case must the owner of the original title, before making his deposit, ascertain, at his peril, whether the tax title owner has incurred expense in an effort to serve the notice? I am of opinion, reading all of the pertinent provisions of the law together, that he is not under this obligation.

By section 141 of the tax law, as it stood in 1909, the complainant was entitled to reconveyance if at any time before such notice was given he paid to the register in chancery on th'e certificate of the auditor general all sums paid as a condition of the purchase of the tax title, together with 100 per cent, additional thereto, and the further sum of five dollars for each description. “By such payment the tax title * * * shall become void and of no effect against the lands so redeemed.” This and other language employed leads me to the conclusion stated. There is no provision, or rule, established by the tax law or otherwise, for computing fees of a sheriff for attempting to make personal service of a declaration as commencement of suit. There is no method pointed out for determining the cost of publishing a notice, once or twice, or less than the required number of times. And, in any event, the cost may be matter of private contract. Service of the notice may be made in two ways, personally, and, in certain cases, by publication. Until it is made, and in this case neither personal nor substituted service had been made, the complainant had the right to pay, as he did, the amount which he paid, relying, as he did, upon the certificate of the auditor general. This is the reasonable meaning of the statute. Any other would introduce confusion and uncertainty into a matter in which certainty is of the greatest importance. Manifestly, the person entitled to and desiring to secure the reconveyance knows whether he has been personally served with the notice, and must take notice of any return on file with the register which properly signifies that substituted service has been made. It is true that the return of the sheriff of inability to find the landowner may be contradicted (Winters v. Cook, 140 Mich. 483 [103 N. W. 869]) ; but this means only that the duty of good-faith effort is imposed upon the one required to give the' notice. So far as is possible, the rights of the parties ought to be determinable and determined by the record, and this I think was the purpose of the legislature.

It follows that complainant made a sufficient deposit of money, a conclusion which makes discussion of other propositions unnecessary and requires that the decree should be affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, MOORE, and SteÉre, JJ., concurred.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    JAMES E. SCRIPPS CORPORATION v. PARKINSON.
    1. Injunctions — Restraining Actions at Law — Adequate Remedy — "Wills—"Validity.
    Where a testator left a void will devising property to defendants’ mother for life and restraining the alienation of the realty in excess of the limitation imposed hy 3 Comp. Laws, § 8797 (5 How. Stat. [2d Ed.] § 10637), a decree of the prohate court, consented to hy said devisee, awarding to her a life estate and the remainder to her heirs, who were not made parties to the partition proceedings in the prohate court, was binding upon her and upon them, and the probate order limited her estate to the term of her life so that a later conveyance to complainant passed no interest in the remainder, that would support an injunction restraining her heirs from prosecuting an action of ejectment.
    2. Same — Res Judicata.

      Held, also, that the probate decree was not open to collateral attach in the ejectment proceedings, although it might have been questioned by timely appeal, if any of the parties were dissatisfied with the result.
    Appeal from Wayne; Van Zile, J.
    Submitted January 7, 1915.
    (Docket No. 25.)
    ‘Decided June 14, 1915.
    Bill by the James E. Scripps Corporation against Norman Parkinson and Edward A. Parkinson for an injunction and other relief. From a decree sustaining the demurrer, of said defendants, complainant appeals.
    Affirmed.

      Munro & Powell and Jasper C. Gates, for complainant. . ,,

      Oxtoby & Wilkinson, for defendants.
   Steere, J.

This is an appeal from a decree of the Wayne county circuit court, in chancery, sustaining defendant’s demurrer to complainant’s bill and dismissing the same. Said bill was filed September 6, 1913, to restrain defendants from further prosecuting two actions in ejectment, brought severally by defendants herein to establish their title and obtain possession of two undivided one-sixths of that part of lot 2, block 58, of the Baker farm lying between Michigan avenue and Leverett street in the city of Detroit, according to the recorded plat thereof.

The salient grounds of defendants’ demurrer, briefly stated, are.that neither fraud, accident, mistake, nor any facts conferring jurisdiction upon a court of equity, or warranting interference to halt an action at law, appear in said bill. The questions raised properly belong to and are triable in the ejectment suits, one Of which, as appears by said bill, has already been tried, resulting in a judgment in favor of the plaintiff (a defendant here), which judgment was set aside at the instance of complainant under the statute relative to ejectment, and it also appears affirmatively by said bill that complainant has a complete and adequate remedy at law.

The complications here involved had their inception in the will of Alvah Ewers, the great-grandfather of defendants, who died August 14, 1851, seised of the lot in question, amongst other property not directly involved in this litigation.

Matter helpful to a general understanding of the situation here presented may be found in Parkinson v. Parkinson, 139 Mich. 530 (102 N. W. 1002), which was a suit in chancery brought by Jane E. Parkinson, the grandmother of defendants, against other heirs of her father, Alvah Ewers, to obtain a construction of his will and to quiet her title as to certain property left by him.

The following concise “findings” of the learned chancellor who heard this case, intermingled with his conclusions of law, will serve sufficiently to disclose the relations of the parties and the questions raised, as well as the reasons of the court for the result reached at that hearing:

“From the bill of complaint it appears that the defendants are now claiming title to certain lands described in said bill of complaint, to wit, each a one-sixth interest in said premises as heirs at law of one Jane Ewers Parkinson, who was a daughter and heir of one Alvah Ewers, deceased, who is the common ancestor and was owner of the lands in question. It also appears that Alvah Ewers made and executed a last will and testament, and bn the 14th of August, 1851, died in the city of Detroit; that the will was admitted to probate on the 22d day of September, 1851; that the will of said Alvah Ewers was void, it being in violation of section 8797, 3 Comp. Laws, which does not permit a suspension of the power of alienation.
“By the terms of the will, Jane' Ewers was given all the lands of the testator in trust to be used and enjoyed by her until October 17, 1864, when the estate was to be divided, one-third to his wife, Jane Ewers, if then living, for life, the remaining two-thirds to be divided into three parts, the same to go as follows: One-third to his son William Ewers absolutely; one-third to his son Charles Ewers absolutely, and one-third for life to his daughter, Jane E. Parkinson, in the bill of complaint called Jane Ewers Parkinson, the said one-third to her for life, after her death to go to her heirs at law in fee simple.
“The will, being void, affects this case as follows: The one-third for life to Jane Ewers Parkinson became a one-third in fee subject to the dower interest of her mother in the real estate.
“On the 14th of October, 1864, Charles Ewers, one of the sons of Alvah Ewers, deceased, petitioned the probate court of this county to partition the estate of Alvah Ewers according to his will; to the order partitioning the estate all of the heirs, including Jane Ewers Parkinson and the widow, consented. Upon this petition, proceedings in partition were had, and, following the terms of the will, the commissioners on June 16, 1865, reported- that Jane Ewers Parkinson should have a one-third interest in fhe real estate of Alvah Ewers for life, and to the confirmation of this report made by the probate court, all the heirs, including. Jane Ewers Parkinson, consented, William Ewers consenting by his assignee, William C. Duncan.
“The validity and effect of this partitioning of the estate of Alvah Ewers, deceased, was before our Supreme Court in Parkinson v. Parkinson, 139 Mich. 530, where the court held the acquiescence of Jane Ewers Parkinson to the proceedings and confirmation of the report in partition of 'the estate precluded her from thereafter asserting a different tenure.
“Jane E. Párkinson died March 1, 1911, leaving as her heirs at law Charles A. Parkinson, a. son; Ida J. Parkinson, a daughter, and her two grandsons, Norman Parkinson and Edward A. Parkinson, Jr., sons' of Edward A. Parkinson, Sr., who died July 12, 1898, during his mother’s lifetime.
“The heirs of. Jane Ewers Parkinson were these persons who were her heirs when she died March 1, 1911, viz., Charles A. Parkinson, Ida J. Parkinson, daughter, Norman and Edward A. Parkinson, grandsons.
“The' complainant claims title by mesne conveyances from Jane E. Parkinson, who had a life estate and who died March 1, 1911; Edward A. Parkinson, Sr., who died during the lifetime of his mother; the deed of Charles A. and Ida Parkinson, who survived their mother, and whose deeds would operate as a conveyance of their shares.
“I therefore find as matter of law that the defendants have title each to an undivided one-sixth of the lands in question, as heirs at law by Jane E. Parkinson, who died March 1, 1911, and by virtue of the partition decree of the probate court, June 16, 1865, they, the defendants, taking the fee in the portion in which the mother had a life estate at her death.”'

It is conceded by counsel upon both sides of this case that the will of Alvah Ewers plainly attempts a suspension of the power of alienation not based upon lives in being, and is therefore void under the restrictions of section 8797, 8 Comp. Laws, as construed in Casgrain v. Hammond, 134 Mich. 419 (96 N. W. 510, 104 Am. St. Rep. 610).

Counsel for complainant says in his brief:

“It is agreed that so far as this controversy is concerned the will in question must be treated as absolutely void.”

Counsel for defendants say:

“We admit that the will of Alvah Ewers was and is absolutely void.”

But from this harmonious starting point complainant contends that the foundation of the title defendants seek to assert is necessarily the Alvah Ewers will and the order, or decree, of the probate court purporting to construe that will and partition the estate according to its terms, for which reasons defendants are estopped from questioning the will or relying upon its invalidity and from opposing the construction placed upon said will by the probate court, and “their counsel cannot be permitted to contend that the will is void,” while complainant is in position to deny the validity of both, as it makes no claim of title under the probate order construing the same.

It is admitted by counsel for complainant that:

“If the probate order in partition proceedings had been binding upon the Parkinson children and upon complainant as their grantee, then the title of defendants to the land in question would be clear.”

Therefore this suit in chancery was brought to attack, and establish the invalidity of, said order in a court of equity, which is the proper and only available forum, because the door is not open to such defense in the actions of ejectment where nothing but legal titles can be tried, and where the probate order by which defendants’ legal title is sustained cannot be questioned collaterally, for which reasons complainant has no adequate remedy at law in defending the ejectment cases against it. While the latter contention is questioned by defendants, we think the rule that probate judgments in partition cannot be collaterally attacked is fairly applicable to the proposed defense, if attempted in the ejectment cases. Persinger v. Jubb, 52 Mich. 304 (17 N. W. 851); Parkinson v. Parkinson, supra; and Morrill v. Morrill, 20 Ore. 96 (25 Pac. 362, 23 Am. St. Rep. 95); also found in 11 L. R. A. 155, where numerous authorities are cited.

The infirmity charged against the probate order by complainant is that at the time of making said order the three children of Jane Parkinson, Charles A., Edward A. (father of defendants), and Ida, were all minors, and no notice of the proceeding, by citation or publication was given them, nor was any guardian ad litem appointed for them, and it is therefore of no binding force or validity as to them, while it is binding upon Jane Parkinson and all claiming under her, conclusively establishing that she never had any title but a life estate in the realty set apart to her, and her interest in it, as also that of any claiming through or under her, ended on her death.. To sustain this theory it is contended that, as to her, the probate order by which she is bound related back, speaking and taking effect from the time of the death of her father, as would his will if legal; that “under the law it would have been imperatively necessary that this one-third interest should have been immediately inherited by some one” and, she only receiving a life interest, her infant children, as became' manifest at the time she consented to the order, were the only persons who could inherit said third subject to her life estate, which “destroys the very foundation of counsel’s claim that their client in any manner or form obtained title by, through, or under Jane Parkinson.” Complainant’s counsel are equally positive that their client did not, in any manner or form, obtain title through or under her, as we gather from the following statements in their briefs:

“If Jane Parkinson never had any interest in this property, except a life estate, it is impossible that she should have transmitted any interest in the remainder to these defendants. This for the plain reason that she never possessed any such interest to transmit. It having been authoritatively and conclusively established that she at no time had any interest in this property except a life estate, it is plain that defendants could take nothing from her. It cannot be claimed that she could have transferred anything by deed. If she could not do it by deed, she could not do it by consenting to a probate order.
“We are therefore forced to the conclusion that counsel are in error when they undertake to base their rights upon a supposed transfer from Jane Parkinson to them, through the medium of her consent to this order. But this is precisely what they do claim; and it is on this claim that they base their title. * * * We stand in the shoes of the infant children of Jane Parkinson, who, at the time of the making of the probate order in question, confessedly had an interest in the estate of Alvah Ewers, and who were not made parties to the partition proceedings.”

Counsel also state “the order can get no support from the will, for it is admitted that this is absolutely void,” and in that connection contend that because said order is void as to complainant’s grantees, it became the owner of their remainder by proper conveyances from them. It is unquestionably the law that, upon the death of Alvah Ewers, all his estate was immediately inherited, and title to it vested in some one at that time, but it is clear no title to any of it could have vested in his daughter’s children at the time of his death, because none of them were then born. It is undisputed that if these three children of Jane E. Parkinson were legally interested, or had any property rights in their grandfather’s estate prior to or at the time this order of partition was made, it was without jurisdiction as to them and a nullity (Prince v. Clark, 81 Mich. 167 [45 N. W. 663]); but if they had no interest, neither they nor those holding under them are in a position to question its validity. Their grandfather, Alvah Ewers, died intestate in 1851, over 13 years before the order was made. The will by which he sought to dispose of his estate was concededly void and or no effect. Under the statute of inheritance, title to any real estate he left passed at once to his three surviving children, William, Charles, and Jane (postea Parkinson), his heirs, upon whom the law cast the real estate immediately upon the death of the ancestor, subject to his widow’s right of dower. His daughter Jane was not then married, and her three minor children, who it is now claimed should have been made parties to the partition proceedings in 1864, were not then in existence.

The fact that Alvah Ewers’ widow was permitted to, and did until 1864, control, use, and enjoy his estate which he had vainly sought to give her in trust by his invalid will could not militate against title vesting in his heirs immediately upon his death, according to the law applicable to one dying intestate.

Under the rule laid down in Casgrain v. Hammond, supra, where the subject' is fully discussed and numerous authorities cited, the whole scheme of this will for disposition of testator’s real property was invalid. The land having been devised for a purpose the law will not permit, on the death of the testator it passes to his heirs, and must be distributed under the statute. In Parkinson v. Parkinson, supra, wherein this court held that the probate order, or decree, was made binding by her consent and decided her tenure to be but a life .estate, though not directly essential to the issue then litigated, it was said:

“Had she raised the question on the proceedings for partition, and appealed from the decree of the probate court, as. she might have done under the statute (3 Comp. Laws, §9458), it is probable that she would have prevailed.”

So far as this record discloses, Jane E. Parkinson had a good title to an undivided one-third interest, in the real estate of which her father, Alvah Ewers, died seised, from 1851 until the time of the probate proceedings in 1864, and could, at any time during that period, have conveyed a good title thereto. In the meantime she married and bore the three children, Edward A., Charles A., and Ida. Her control and right to dispose , of the property which she inherited from her father were .not restricted or affected by the fact that, she had children who were her prospective heirs. Their knowledge or consent was not essential to authorize her to mortgage it, lease it, sell it absolutely, or consent to an order, or decree, of partition in the probate court which would limit her to its use and enjoyment for life and restrict it in remainder to those of her children who might be living at her decease. The order to which she consented, and by which this court held she was bound because she consented, was in harmony with the desire of her father as expressed in his void will, but it did not validate the will, nor was it binding on her by reason of the will, for as counsel for complainant well say:

“The order can get no support from the will for it is admitted that this is absolutely void.”

By the order in question, making final division of her father’s estate, with her consent one-third was assigned to Jane Parkinson for life, remainder limited to- her lawful heirs in fee simple. Her three children as prospective heirs then first became legally interested in their grandfather’s estate. Whether any of them would actually be heirs was yet uncertain, for no one is heir of the living. The nature and validity of the two estates thus created out of this one-third, one in possession and one in expectancy, only suspending alienation for one life in being, are too well settled in this State by statute and decision to require discussion.

We are well satisfied that Jane Parkinson’s three children (her heirs apparent) are not shown to have had any legal interest in their grandfather’s estate prior to the probate order, or decree, in question, and the same is not open to attack on the ground that they were not made parties in the partition proceeding.

The decree sustaining defendants’ demurrer and dismissing complainant’s bill is affirmed, with costs.

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


author: Bird, J. McAlvay, J.

text:
    ROBBINS v. MAGOON & KIMBALL CO.
    1. Master and Servant — Notice to Employer — Knowledge—Evidence — Animals.
    Knowledge possessed by a barnman. and a teamster of defendant wbo had control and charge of its mule, that the animal was vicious and likely to kick, was chargeable to tbe employer as the knowledge of his agents and servants, in a suit for the injury and death of an employee caused by kick of the mule, who had not been informed concerning the character of the mule.
    2. Same — Notice—Agency—Imputed Knowledge.
    Notice to the master of the vicious propensities of such animal will be implied if the servant shown to have knowledge had charge of and control over the beast, but not otherwise.
    3. Same — Evidence—Knowledge.
    It was erroneous and prejudicial to exclude testimony of the teamster as hearsay, in reply to the question whether or not he had heard from other parties that the mule was a “kicker.”
    4. Same — Personal Injuries — Negligence.
    The question .what other knowledge, if any, the witness had of the kicking propensities of the mule, was competent and was erroneously excluded.
    5. Same — Knowledge—Subsequent Acts — Vicious Nature.
    Plaintiff was also entitled to show the vicious character of the mule immediately following the date of decedent’s injuries, as tending to establish the character or nature of the mule.
    Error to Muskegon; Sullivan, J.
    Submitted November 4, 1914.
    (Docket No. 136.)
    Decided June 14, 1915.
    Case by William A. Robbins, as administrator of the estate of William J. Robbins, deceased, against the Magoon & Kimball Company, a corporation, for the unlawful killing of plaintiff’s intestate. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Reversed.

      John G. Anderson (Cross, Vanderwerp, Foote & Ross, of counsel),.for,appellant.

      R. J. Macdonald- (W. J. Turner, of counsel)j for appellee.
   Bird, J.

In June, 1913, defendant was engaged in the business of selling and delivering ice to its customers, in the city of Muskegon. Plaintiff’s intestate was employed to assist one of defendant’s regular teamsters in making the deliveries. On June 28th, at about midnight, the men finished their work and drove to defendant’s office. The teamster Dobbs directed plaintiff’s intestate to drive the mules to the barn, while he went to the office and made his daily settlement. Plaintiff’s intestate complied with this direction and drove the mules to the barn. The teamster followed soon after, and found him lying on some hay a short distance from the mules. Upon inquiry, he learned from him that one of the mules had kicked him when he leaned over to unhitch the tug. His injuries proved fatal the following day. It is claimed by the plaintiff that the -mule was vicious, and that defendant had knowledge of the fact prior to the injury, and for this negligence in directing the deceased to work with the vicious mule, it is liable in this action. The trial court directed a verdict for the defendant on the ground that the proofs failed to show that the defendant had knowledge of the vicious character of the mule, and this presents the principal question in the case.

Plaintiff sought' to charge the defendant with notice and knowledge of the fact that the mule was vicious, by showing that Dobbs, the teamster, and McDonald, the barnman, had knowledge that the mule was vicious, and it is claimed on the part of the plaintiff that this knowledge, so possessed by the servant of defendant, was sufficient to charge the defendant with knowledge of the fact. On the other hand, it is claimed by the defendant that the mere fact that its teamster and barnmen had notice of the vicious character of the mule would not charge the defendant with knowledge of the fact. The general rule making the knowledge of the servant the knowledge of his master in such cases is stated as follows:

“Knowledge of a servant or agent of an animal’s vicious propensities will be imputed to the master when such servant or agent has charge or control over the animal, but not otherwise.” 2 Cyc. p. 378.

This rule was followed by this court in Noble v. Railway Co., 98 Mich. 249 (57 N. W. 126). That case involved the viciousness of a team of horses. The trial court in that case instructed the jury that:

“In this connection you are instructed that whatever this defendant’s driver, Congdon, before this accident in question, and in the course of his employment, learned or discovered with respect to the character or disposition of. these horses, is presumed to have been known by the defendant, and the defendant is chargeable with such knowledge possessed by Congdon.”

And this court held that the foregoing was a proper statement of the law. The rule was again followed in Meilke v. Schabble, 159 Mich. 163 (123 N. W. 552). The viciousness of a dog was in question, and it was held that whatever knowledge or information came to the servant who had the dog in charge was notice to the master. The case of Brown v. Green, 1 Pennewill (Del.), 535 (42 Atl. 991), is an interesting one, because of the fact that this rule was applied to a state of facts very much like those involved in this case. Tested by this rule, we must conclude that, in view of the proof received and the proffered proofs, the trial court was in error in directing a verdict for the defendant on this ground.

The witness Dobbs was not permitted to answer the following questions:

(1) “Q. Did you hear from others that he was a kicker?
(2) “Q. What other knowledge, if any, did you ■have of his kicking propensities before this happened?”

The witness Wherry, who succeeded the deceased on the wagon, was not permitted to testify as to vicious acts of the mule immediately after the injury.

The first question was rejected because it was hearsay. It was competent for the purpose of showing notice of the vicious character of the mule to the servant, and it should have been admitted.

The second question was proper as it bore directly upon the issue as to whether the mule was in fact vicious.

The witness Wherry should have been permitted to testify to vicious acts of the mule immediately after the injury to deceased.. It had a tendency to establish the character of the mule with reference to viciousness. Acts tending in that direction which occurred after, as well as before, the injury were competent for that purpose. 2 Cyc. p. 386; Brown v. Green, supra; Noble v. Railway Co., supra.

For the errors pointed out, the judgment will be reversed and a new trial ordered.

Brooke, C. J., and Kuhn, Stone, Ostrander, Mooré, and Steere, JJ., concurred with Bird, J.

McAlvay, J.

I find no evidence in the case to prove that deceased was kicked by the vicious mule; however, I concur in the result.


author: Bird, J. Stone, J.

text:
      In re BAILEY’S ESTATE. WILLIAMS v. BAILEY.
    1. Wills — Evidence—'Validity.
    In determining the validity of a codicil to decedent’s will,-' which contestants claim was effected by undue influence, the consistency, reasonableness and propriety of the codicil were matters to be considered in deciding whether decedent had been unduly influenced.
    2. Same — Appeal and. Error — Charge.
    But, wanting requests to so charge the jury, appellant was not entitled to a reversal for failure of the court to advise the jury of the weight to be given to the subject.
    3. Same — Evidence—Financial Condition.
    Evidence that one of the contestant’s daughters had to take in washings to help support her father was incompetent and was improperly admitted.
    4. Same — Burden oe Proof- — Undue Influence.
    Though evidence in a will contest showed that the devise was made to a religious organization, that one of its ministers, who helped testatrix to prepare the codicil, was. also her spiritual adviser, it only raised a rebuttable presumption that the devise was invalid for undue influence. The burden of proof to show undue influence continued to rest on the contestants.
    5. Appeal and Error- — Presumptions. •
    The presumption is that the jury followed the incorrect one of two conflicting instructions.
    Kuhn, Bird, and Moore, JJ., dissenting.
    Error to Macomb; Tucker, J.
    Submitted January 20, 1914.
    (Docket No. 88.)
    Decided June 14, 1915.
    The will of Lydia Bailey, deceased, was admitted to probate and Stephen Bailey, contestant, appealed to circuit court. Judgment for contestant; proponent brings error.
    Reversed.

      Miller, Smith, Paddock & Perry, for appellant.

      William T. Hosner (Erskine & Lunger hausen, of counsel), for appellee.
   Bird, J.

(dissenting). The paper offered as the last will and testament of Lydia Bailey was set aside in the Macomb circuit court by a jury on the grounds of defective execution and undue influence. The testatrix was a maiden lady, who resided at Romeo. Her nearest of kin was a brother, Stephen Bailey. The value of her estate was nearly .$8,000, and consisted mostly of real property. In August, 1905, she made a will and devised in trust the bulk of her estate to the Bishop of the Protestant Episcopal Church in the diocese of Michigan, for the use of such church in the village of Romeo. In November, 1909, she added a codicil, and in April, 1911, she added another. The will was offered for probate by Bishop Williams, and was allowed in the probate court. Stephen Bailey, the brother of testatrix, then took an appeal and contested the will in the circuit court, where it was disallowed.

1. The first question raised is the refusal of the trial court to dismiss the appeal following the death of Stephen Bailey. It appears that after an appeal was perfected and before trial, Stephen Bailey died, and his administrator was substituted in his stead. It is argued by the proponent that the proceeding is a .purely statutory one, and that, inasmuch . as the statute has made no provision for the survival of such an action, the action died with Stephen Bailey. While it is true that probate proceedings are very largely based upon the statute, it is also true that the statute provides for the descent and distribution of property and the probating of wills. The parties in interest to a proceeding to probate a will are the beneficiaries under the will, and those upon whom the law would cast the property in the event that the will was set aside, and the courts have repeatedly held that these persons have such an interest as entitles them to be heard in defense of their rights. See Taff v. Hosmer, 14 Mich. 249, 255; Dudley v. Gates, 124 Mich. 440 (83 N. W. 97, 86 N. W. 959).

In the case of Alden v. Johnson, 63 Iowa, 124 (18 N. W. 696), objection was made that contestants did not have such interest as permitted them to contest, and the court said:

“If the will be set aside, they will share in the property of the estate; they have therein an interest contingent upon the validity of the will. There is no rule of the law which will bar the doors of the courts when they seek to enter, asking the judicial determination, of the law and the facts whereon they base their claim to the property.”

It was likewise held in Brewer v. Barrett, 58 Md. 587, that the next of kin of one of the testator’s next of kin who had died intestate subsequent to the death of the testator, might contest the will.

The precise point was raised in the case of Van Alen, Executor, v. Hewins, 5 Hun (N. Y.), 44. One Calvin Drake died, leaving a last will and testament. Lucy Hewins, the only child and next of kin, contested the will. Before the matter was brought to a determination, Lucy Hewins died, and an executor was appointed upon her estate. He assumed the prosecution of the contest, and was met with the objection that the action did not survive; but the court held that:

“Probate merely authenticates an instrument propounded as a will. The effect of it is to establish the words of the probate as the legal will of the deceased. It is a quasi proceeding in rem. Such a proceeding cannot, in the nature of things, abate by the death of either of a proponent or a contestant. It must of necessity be continued until the instrument propounded be admitted to probate, or probate thereof be refused.”

Upon the question of the right of revival in the name of the executor, the court said:

“The right to contest a will is given to the next of kin, because they would be entitled to the property of the deceased if the attempted testamentary disposition of it should not be established. If the probate in this case had been revoked in the lifetime of Mrs. Hewins, she, being the only next of kin of the deceased, would have been entitled' to the property. If revoked after her death, the property would belong to her personal representatives. * * * Her executors are therefore the proper parties to succeed her in the proceeding pending before the surrogate. The right survives to, and may be prosecuted by them, by analogy to the rule relative to actions.”

Our conclusion is that the administrator of the estate of Stephen Bailey was a proper party to the proceeding.

2. It is urged that the will of 1905 was shown by the proofs to have been duly and legally executed, and that the trial court was in error in refusing to so advise the jury. The point raised on the execution of the will was that the subscribing witnesses did not sign the will in the presence of the testatrix. The, record, we think, affords some basis for such an inference. The testimony of the subscribing witnesses was at variance on this phase of the case, and an issue of fact was thereby raised which the trial court very properly submitted to the jury.

3. Counsel insist that:

“There was no evidence* of undue influence exercised upon testatrix in the making of the first codicil of November 18, 190§, and no presumption of undue influence could arise with respect thereto.”

As tó whether the testimony was such as to raise the presumption of undue influence, we cannot agree with counsel; The rule of law which brings spiritual advisers within the zone of the confidential relation is stated by Mr. Justice Cooley, in his work on Torts (1st Ed.), p. 530, as follows:

“The law takes notice of the influence likely to be acquired by the physician over his patient, and scrutinizes with jealousy their dealings while the relation continues. As the control of spiritual advisers is likely to be even greater, and more controlling -especially in the last illness, the reasons for such jealousy are powerful in proportion, and they should be able to show that any advantage obtained for themselves or their church or denomination was the result of free and voluntary action and not obtained by practicing in any manner upon the fears or the hopes, or by taking advantage of spiritual or bodily weakness.”

The testimony shows that Miss Bailey was well advanced in years, was in poor health, and was a devotee of the Episcopal Church; that the Rev. William Sayres was her spiritual adviser; that he was sent for by her and consulted as to this codicil; and that he not only advised with reference to it, but prepared the codicil for her. This was sufficient proof of the confidential relation to raise the presumption of undue influence, and after it arose it was a presumption which stood as an item of proof in the case to support the contestant’s allegation of undue influence.

But it is argued in substance, in this connection, that the Rev. Sayres had no voice in making the will of 1905, and that the codicils added so little to what had already been given that it would not call for the application of that rule. The first codicil clearly enlarged the use which might be made of the property from a restricted one to a general one. The second codicil limited her bounty to her brother to a nominal sum, after she was aware that he had lost his property and was being cared for and supported by his daughter. The fact that the advantage gained by the codicil was small would not prevent the application of the rule (Adams’ Estate, 220 Pa. 531 [69 Atl. 989, 123 Am. St. Rep. 721]), but would render the presumption less difficult to overcome.

'4. A further complaint is that the trial court cast upon the proponent the burden of establishing that the testatrix was free from undue influence when she executed the codicils. The portion of the charge referred to follows:

“You will then consider the codicils, and, as to those, I direct you that Miss Bailey was mentally competent to make them, and that they are properly executed; but, to make them valid as parts of her will, the burden is upon the proponent to satisfy you that at the times when they were executed Miss Bailey was free from undue influence, and in making them was carrying out her own wishes and desires. If this fact is established by a preponderance of the evidence, the three documents must be allowed as her win.”

We think this part of the charge should be read and considered in connection with other instructions which were given upon that subject. They were:

“The burden is upon the contestant to establish by a fair preponderance of the evidence that the will, or codicil, was procured by undue influence if that claim is made; ■ but where, as in this case, the party charged with undue influence is shown to have occupied the position of a spiritual adviser of the deceased, and to have taken some part by advice, persuasion, or suggestion, in the making of a codicil, which devises a substantial amount of property to the church of which he is a minister, by a republication of the will of August 10, 1905, you will consider that the presumption arises that undue influence was exercised. That presumption, however, is not controlling, but merely shifts the burden of proof as it is called. It really does not do that, but when that presumption arises it then becomes incumbent upon the proponent of the will to so explain the situation or to produce sufficient testimony to satisfy the jury by a fair preponderance of the evidence that, as a matter of fact, there was not any undue influence, but that the will as made was a fair and free act of the testator.” .

The trial court instructed the jury, in substance, that the burden of proof was upon the proponent to establish the execution of the will and codicils, and that the testatrix was of sound mind. He also instructed them that the burden of proof was upon the defendant to establish the claim of undue influence. He instructed them quite fully as to the presumption of undue influence which arose by reason of the confidential relations, and that the burden was upon the proponent, as to this presumption, to satisfy them that at the time the codicils were executed Miss Bailey was free from undue influence. We think this is in accord with the holdings of this court. In the case of Bush v. Delano, 113 Mich. 321 (71 N. W. 628), where the same question was involved, the charge of the court which follows was approved by this court:

“You are instructed that while the evidence that the will in question was drawn by Luther R. Delano, who was named as a legatee therein, does not of itself invalidate^ the will, it calls for satisfactory explanation, and imposes upon those who present the will for probate the burden of showing to your satisfaction that it was in all respects fair and honest, and expressed the wish and desire of William R. Delano.”

For similar holdings, see In re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523); Dudley v. Gates, 124 Mich. 440 (83 N. W. 97, 86 N. W. 959); McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985). The trial court nowhere charged the jury that the burden of proof of establishing undue influence was upon the proponent. In fact, he charged them directly the opposite of that; but, upon the question of the presumption which arose, he endeavored to make it clear to the jury that the burden of the evidence as to that presumption was upon the proponent, and I am of the opinion he succeeded in so doing. The case of Cooper v. Harlow, 163 Mich. 210 (128 N. W. 259), is cited by counsel in support of his contention. This case in no way attempts to change the rule of law laid down in the foregoing cases.'

5. Error is assigned because the trial court admitted evidence of the financial condition and circumstances of Edith Knowles, a daughter of contestant. The contestant, in attempting to show the physical and financial condition of Stephen Bailey, showed by Edith Knowles that she cared for her father the last 14 years of his life, and that she wrote to testatrix that she was working to care for him. The question was then asked her:

“Q. What work were you doing?
“A. I was taking in washing every day.
“Q. At that time what was your husband doing?
“Mr. Paddock: I object to that, and move that the last answer be stricken out. It is a roundabout way to get some matters that are inadmissible in this case.
“The Court: It is. Exception.
“Mr. Erskine: We would like to know whether the ruling covers anything she wrote her aunt in regard to her care, and the financial condition of Stephen Bailey.
“The Court:. It is simply an indirect way of putting in the same evidence that would be inadmissible if put in direct, anything in reference to his financial condition.”

Later, in an attempt by counsel to find out the extent of the ruling, the following took place: '

“The Court: The point of the testimony was that she was obliged to take in washings to support the father. You are really showing the financial condition of the Knowles. She had no claim upon the bounty of the testator.
“Mr. Erskine: Wouldn’t it be competent to show that Stephen Bailey had to be supported by the daughter?
“The Court: I don’t think so; you can show his financial condition possibly, but to show that he had to be supported by his daughter, or that she took in washing to support him, is going a long way further than you have a right to go.”

While it is competent in such a case to show the physical and financial condition of the next of kin (Beaubien v. Cicotte, 12 Mich. 497), it was not competent to show the financial condition of Edith Knowles, because she was not in that class. In re Merriman’s Appeal, 108 Mich. 454 (66 N. W. 872). The.objection to the testimony was well taken by proponent’s counsel, and the trial court agreed with him, and during the colloquy which followed the court stated in the presence of the jury that the testimony was incompetent, and gave the reasons why, and further advised counsel that he had already gone further than he was entitled to in showing the financial condition of Stephen Bailey. To now insist that proponent’s case was injuriously affected by this rejected testimony to the extent of being reversible error, notwithstanding the action of the trial court, is to ascribe to the jury a lack of intelligence to which I am unable to subscribe. For the trial court to rule against counsel, and then comment as he did on this occasion, would ordinarily injure his case with the jury more than the objectionable testimony would aid it.

6. Some further complaint is made of the use contestant’s counsel made of this testimony to the jury. The record does not show the language of counsel upon which this is based. It is claimed by contestant’s counsel that what was said was .in answer to the argument of proponent’s counsel to the jury. We think the record is too meager on this question to admit of consideration.

7: The trial court denied a motion for a new trial. One of the reasons urged therein was that the verdiet was against the weight of the evidence. While the testimony upon some of the questions of fact submitted to the jury was somewhat meager, we think it was the duty of the trial court to submit them, and we are not persuaded that the verdict should be set aside as being against the decided weight of the testimony.

The judgment of the trial court should be affirmed, with costs of this court to contestant.

Kuhn and Moore, JJ., concurred with Bird, J.

Stone, J.

I am unable to agree with the opinion of Justice Bird in this case. The will sought to be probated by the proponent bears date August 10, 1905. The provision of the will which is here material reads as follows:

“All the rest, residue and remainder of my estate, real, personal and mixed, whatsoever, and wheresoever, I will and direct that the same and I hereby give, devise and bequeath it unto Thomas Frederick Davies, Bishop of the Protestant Episcopal Church in the diocese of Michigan, or to his successor in the same office of bishop, to be, however,.by him held in trust for the use of the Protestant Episcopal Church in the village of Romeo, organized previously to, or after my death, and I hereby authorize the said Bishop Davies, or his successor in the office of bishop, to sell my real estate in the township of Washington, with the exception of my residence and twelve acres of land, more or less, at any time which may seem desirable. But property owned by me in the township of Bruce must not be sold under three years after my death. The bishop to make and give all necessary deeds, as required by law. My residence and twelve acres of land, more or less, reaching on Main street from the lot owned by Stephen Bailey on the north to the limit on the south shall not be sold, but shall be retained as a home for the clergyman in charge of the parish. Futhermore, if the house is not desired to be used as a rectory, then and in that case I hereby give, devise and bequeath the same with twelve acres of land, more or less, as before described, to the diocese of Michigan, to be kept as a resort for clergymen and their families who may desire a quiet summer resting place. No more land need be kept with the house than is considered desirable.”

There is no question of the mental capacity of the testatrix, in the execution of the will or the codicils. That question was distinctly taken from the jury by the trial court in its charge.

Passing the claim of the contestant that the will was not duly executed, we come to the codicil of November 18, 1909. That codicil is very brief, and reads as follows:

“I, Lydia Bailey, of the village of Romeo, State of Michigan, having made my last will and testament bearing date the tenth day of August in the year 1905, do now make this codicil to be taken as a part of the same: First, I hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil. Second, I cancel, annul and revoke the following words in said will and testament, viz., ‘to be kept as a resort for clergymen and their families who may desire a quiet summer resting place,’ said lines being on page one, lines 33, 34, 35 and 36 of said will, and in place of said words I add and insert the following, viz., ‘to be used for any religious or charitable purpose that he, the said bishop, or his successor in his discretion shall direct.”

No question is raised in. the case that this codicil was not properly executed and witnessed. In fact, the trial court charged the jury as follows upon that subject:

“If you find that the deceased was not unduly influenced in the making of this codicil of November 18, 1909, then it was and becomes a part of her will, was a republication and re-execution of the original will, and made valid the original will, even if the same had not been-duly executed. Thus, if she freely and fairly executed the codicil of November 18, 1909, republishing in terms, as it did, the original will, that would have made the original will good irrespective of the question whether or not it was properly executed on August 10, 1905.”

As to this codicil, the only question submitted to the jury was whether the testatrix had been unduly influenced in the making of it. The evidence shows that in the summer of 1909 testatrix showed to the Rev. Mr. Sayres, her spiritual adviser, upon one of his visits to Romeo, the provisions of the aforesaid trust contained in the original will. On reading the clause which provided that in case the homestead was not desired to be used as a rectory it should be kept as a summer resort for clergymen and their families, Mr. Sayres advised the change in such provision which appears in the codicil. It appears in evidence that he pointed out to her the limitations she had placed on this secondary use of the homestead, that it could be used only as a summer resort for clergymen and their families, and told her that she could accomplish the same end by placing the homestead, if not wanted for a rectory, at the discretion of the bishop for any charitable or religious purposes.' She fell in with this suggestion .and asked Mr. Sayres to prepare a codicil along these lines, which he did. No other change was made in the will by the codicil, which expressly republished and ratified the will in all other respects.

It is the claim of proponent, and there was undisputed evidence to sustain the claim, that the testatrix was satisfied with the codicil, and duly executed it in the presence of two witnesses. The nature and char-, acter of the change produced by this codicil might well have been called to- the attention of the jury. Its reasonableness, naturalness, and the general character of. it, while not .controlling, were circumstances proper to be considered with other evidence upon the subject of undue influence. Meier v. Butcher, 197 Mo. 68 (94 S. W. 883, 6 L. R. A. [N. S.] 202, 7 Am. & Eng. Ann. Cas. and note, pages 887-894). See, also, In re Merriman’s Appeal, 108 Mich. 454, 459, 460 (66 N. W. 372); Wallace v. Harris, 32 Mich. 380-397; Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566).

As. no request was made to the trial court to charge upon this subject, by proponent, it cannot be urged here as error that the attention of the jury was not called to it.

Upon the trial evidence was received, over the objection and exception of the proponent, as to the financial condition of Edith M. Knowles, a daughter of the original contestant, who had died before the trial at the circuit. Upon the subject of undue influence and the burden of proof, the trial court, having alluded to the subject a number of times, charged the jury as follows:

“To sum up, then, the whole matter as to the original will, you are directed to find that Miss Bailey was mentally competent to make it and was free from undue influence as to its provision.
“Whether or not it was properly executed is a question of fact for you to determine, and upon that proposition the proponent has the burden of satisfying. you by a fair preponderance of the evidence that it was properly executed, or it must be disallowed; that is, unless it was re-executed by the codicil of November 18, 1909.
“You will then consider the codicils, and, as to those, I direct you that Miss Bailey was mentally competent to make them, and that they are properly executed; but, to make them valid as parts of her will, the burden is upon the proponent to satisfy you that at the times when they were executed Miss Bailey was free from undue influence, and in making them was carrying out her own wishes and desires. If this fact is established by a preponderance of the evidence, the three documents must be allowed as her will.”

The trial having resulted in a verdict for the contestant, the proponent has brought the case here for review.

Error is assigned upon the ruling of the court in receiving evidence relating to the financial condition of Edith M. Knowles; and the portion of the charge contained in the last paragraph of the last quotation therefrom, beginning with the words "you will then consider the codicils,” etc.

1. That it was error to receive the evidence relating to the financial condition of Edith M. Knowles, we need only refer to the following cases: In re Merriman’s Appeal, supra; In re McMaster’s Estate, 163 Mich. 210-224 (128 N. W. 259). The use that was made -of this evidence by counsel for contestant in their argument to the jury, in view of the issue as to undue influence, rendered this error prejudicial.

2. We think the rule is well established in this State that the burden of proof is upon the contestant to prove undue influence, and not upon the proponent, or beneficiaries, to prove the absence of undue influence. In re Shepard’s Estate, 161 Mich. 441-463 (126 N. W. 640); In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623), and cases cited.

The language of the charge above quoted does' not state the correct rule, and is inconsistent with the other part of the charge quoted by Justice Bird. When conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which was erroneous. Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152, 154 (10 N. W. 179); Madill v. Currie, 168 Mich. 546, 560 (134 N. W. 1004).

The language quoted by Justice Bird from Cooley on Torts was taken from that part of the work treating of "Wrongs in Confidential Relations,” and the learned author was not there treating the subject of burden of proof, where undue influence was claimed, in the probate of a will. In support of Justice Bird’s holding; he cites the following cases: Bush v. Delano, 113 Mich. 321 (71 N. W. 628); In re Bromley’s Estate, 113 Mich. 53 (71 N. W. 523); Dudley v. Gates, 124 Mich. 440-449 (83 N. W. 97, 86 N. W. 959); McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985); In re McMaster’s Estate, supra; Conklin v. Conklin, 165 Mich. 571 (131 N. W. 154). We are of opinion that the above-cited authorities do not support the claim that the burden of proof upon the subject of undue influence of the testator is shifted from the contestant to the proponent in any case.

In re Bromley’s Estate, supra, the sole question raised on the trial was whether the will was procured by undue influence. The charge of the circuit judge, which was approved by this court, was as follows:

“Where a person devises his property to one who is acting at the time as his attorney, either in relation to the subject-matter of the making of the will, or generally, during that time, such devise is always carefully examined, and of itself raises a presumption of undue influence. But this is by no means a conclusive presumption, but it is one that may be overcome by evidence; and it is not necessary that that evidence shall in all cases be a positive denial of parties who are personally acquainted with the facts, but it must be such evidence as will lead the jury to believe that no undue influence was exerted. And if such evidence be found from the facts and circumstances surrounding the making of this will as will lead you to believe that the will was made by the testatrix of her own free will, uninfluenced by any other person, then the fact that Joseph W. Donovan was her attorney would not in any way invalidate the will. That should simply be taken into consideration, with all the other facts, to determine whether or not the will was, as a matter of fact, the will of the testatrix.”

Of that charge Justice Montgomery, speaking for this court, said:

“Furthermore, we think the charge, as a whole, correctly intimated to .the jury that the burden does rest upon the proponent to overcome the presumption that arises from the confidential relation.”

This is very far from holding that the burden of proof rests upon a proponent to show that at the time of executing a will the testator was free from undue influence. It is true that a presumption is raised that calls for an explanation, but the burden of proof to show undue influence is not thereby shifted. '

In Dudley v. Gates, supra, after calling attention to the charge of the trial court, Montgomery, C. J., said:

“We do not think that this charge, takén as a whole, could have misled the jury. They were correctly told that the circumstance that the will was drawn by proponent’s husband was a circumstance which raised a suspicion, and they could not have heard this charge without understanding that it was the duty of the proponent to remove this suspicion by evidence.”

In McPherson v. Byrne, supra, the administrator-of the estate sued defendant in trover to recover the value of certain certificates of deposit which had been issued to the deceased, and had been by her delivered to the defendant prior to her death. The defendant was a priest of the church of which deceased was a communicant. The defendant claimed the property as a gift causa mortis. It was held by this court that the circuit judge correctly charged the jury that, where a gift is claimed to have been made to the spiritual adviser of the person in extremis, the burden of proof to show the good faith of the transaction rested upon the donee.

In Re McMaster’s Estate, supra (cited by Justice Bird as Cooper v. Harlow), this court reversed a case where the contestant had prevailed, and where the trial court had ’ instructed the jury that, while in ordinary cases, the contestants were bound to prove undue influence, if undue influence was asserted, with reference to the burden of proof, and in that case the court charged as follows:

“Whether this rule is reversed or not in such- a case as this, the connection of Mr. Cooper with the making of this will, and its execution, and the facts of his being a large beneficiary, and is named as executor, as well, also, as the relations he entered upon toward Mrs. McMaster at the time the will was executed and such as he sustained toward her at that time to the extent that these things Sire' undisputed in- this case, make up such a situation as calls upon Mr. Cooper for satisfactory explanation, and he should show to your satisfaction that it was in all respects fair and honest. The burden of doing this is upon him, and, if hé has failed to satisfy you by his explanation that it was fair and honest, you should find against the will without reference to any other question, in this case, or any other instruction given you, and in fact need proceed no further with your deliberations. If you do not so find, then you should consider other elements of the case.”

After quoting further from the language of the charge, and referring to the decisions of this court, which we have cited, Justice Ostrander, in speaking for this court, said:

“The trouble with the instruction is that it does not also advise the jury, as it should have done, that if, in view of all circumstances disclosed, giving effect to the presumption referred to, they are not convinced that the provisions of the 'will favorable to Mr. Cooper were the result of fraudulent contrivance or of undue influence, then, if the testatrix was competent to make the will, it ought to be allowed. The jury must have understood that in this case the contestants were relieved of a burden which in the ordinary case they would be obliged to carry. The attention of the court was directly drawn to the rule, so that lack of a fuller statement of the law was not the fault of counsel. As for this error the cause must go down for a new trial, it is proper to say, further, that the presumption recognized in the decisions and in this opinion arising from the preparation of a will by a beneficiary whose relations with the testator are confidential or fiduciary in character is a presumption of fact, the force and effect of it is for the jury, and depends in every case upon the circumstances of the case.”

In Conklin v. Conklin, supra, the relation of a confidential agent and physician having the custody of a will and being himself a legatee having been shown, this court held that the presumption of undue influence called for an explanation. Justice Blair, speaking for this court, said:

“The relations of defendant Conklin to testatrix raised a presumption of influence which would call for explanation on his part” — citing the foregoing cases.

The above cases were reviewed, and we think the proper rule is again enunciated in the case of In re Hartlerode’s Estate, 183 Mich. 51 (148 N. W. 774). In that case, where certain fiduciary relations had been shown to exist between the testatrix and the rector of a church which received a legacy, the trial court directed a verdict and judgment for the proponent. The judgment was reversed here upon the ground that the matter should have been submitted to the jury with proper instructions, and that the testimony was sufficient to call upon the proponent to explain the transaction.

In all of these cases the general rule was recognized that the burden of proof to show undue influence rested upon the contestant, and not the proponent. Such, we think, is the settled law in this State.

For the errors in receiving the above testimony, and in the charge of the court above indicated, the' judgment of the circuit court is reversed, and a new trial ordered, with costs of this court to proponent.

Brooke, C. J., and McAlvay, Ostrander, and Steere, JJ., concurred with Stone, J.


author: Kuhn, J.

text:
    LEACH v. DOLESE.
    1. Mortgages — Cross-Bile—Amendment—Foreclosure—Usury.
    In a suit to redeem from an alleged usurious mortgage, to foreclose which defendant filed a cross-bill, the trial court was not in error in declining to permit the defendant to so amend his answer as to eliminate the portion claiming affirmative relief, leaving the answer a ■ mere denial of the averments of the bill, where it appeared that the result would prejudice complainant by reason of the fact that the amendment would leave the mortgagee in position to claim the legal interest, whereas, in the absence of such amendment complainant would be relieved from the payment of interest. (2 Comp. Laws, § 4857; 2 How. Stat. [2d Ed.] § 2870).
    2. Usury — Interest—Forfeiture.
    The point made by defendant that the answer and cross-bill contained no prayer or request for usurious interest was immaterial in a suit to redeem from a mortgage; if it is sought to enforce by affirmative relief a contract tainted with usury the statute (2 Comp. Laws, § 4857; 2 How. Stat. [2d Ed.] § 2870) becomes operative and the interest is forfeited.
    3. Same — Bonus—Amount of Interest.
    Where the parties in drafting a mortgage agreed upon a bonus of $230, which was added to the principal of the mortgage, the total amount bearing interest at 6 per cent., the result being that the borrower was required to pay-interest in excess of the legal rate of 7 per cent, on the true amount borrowed, the contract was usurious, and defendant’s cross-bill seeking affirmative relief operated to avoid the obligation to pay interest.
    Appeal from Wayne; Murphy, J.
    Submitted January 8, 1915.
    (Docket No. 31.)
    Decided June 14, 1915.
    Bill by Henry W. Leach and another against John Dolese, Jr., and others to redeem from a mortgage. From a decree for complainants, defendant Dolese appealed.
    Affirmed.

      Joseph Walsh and Lloyd L. Axford, for complainants.

      Jasper C. Gates, for defendants.
    The issues involved in this controversy are thus clearly stated in the opinion filed by the learned chancellor who heard the case:
    “The complainants filed the bill herein to redeem from a claimed usurious mortgage given to the defendant Dolese, as mortgagee, for the sum of $5,230. A disclaimer was filed by the defendant Frank J. Weber; a several answer by the defendant Joseph F. Weber, in which denial of any right of relief as against him is asserted; and an answer in the nature of a cross-bill was interposed by the defendant Dolese. In the latter’s answer the averments of the bill are met and denied, and the affirmative relief of foreclosure of the mortgage is prayed. The complainants duly answered the cross-bill. Upon the hearing no testimony was taken; the facts being stipulated.
    “It is thus established that upon July 3, 1906, the defendant Joseph F. Weber loaned to the complainant Henry W. Leach the sum of $5,000, for the repayment of which the latter and his wife, the other complainant, then executed to Dolese, as payee, their joint promissory note for the sum of $5,230, payable within three years thereafter, and secured by a mortgage in the sum of $5,230 upon the land involved herein, the title to which, subject to his wife’s inchoate right of dower, was in Mr. Leach. Both the note and mortgage bear interest at 6 per cent., in accordance with the express agreement of the parties.
    “The payee and mortgagee in the respective instruments, John Dolese, Jr., is a nonresident. His interest in the subject-matter is purely nominal, the loan having been made merely in his name, the funds being furnished by Joseph F. Weber, and the negotiations being carried on and consummated by Mr. Leach with the Messrs. Weber.
    “Various payments were made upon the principal and interest of the obligation, and finally in 1912, there being an unpaid balance due, foreclosure of the-mortgage by advertisement was' begun. Shortly thereafter this bill was filed, upon the theory that the note and mortgage were alike usurious, and foreclosure was enjoined pending suit. The several answers of Messrs. Dolese and Joseph F. Weber deny the claim of usury.
    “Upon the hearing an oral motion to amend was made in behalf of the defendant Dolese, asking that so much of his answer as designates and constitutes it in effect a cross-bill be stricken out. No amended answer conforming to this proffer having been filed or presented, the answer, if the motion be granted, would be construed and regarded merely as pleading a naked denial of the bill.”
   Kuhn, J.

(after stating the facts). At the outset we are asked to determine whether or not the chancellor erred in refusing to permit the appellant to amend by dismissing that portion of his answer which constituted it an answer in the nature of a cross-bill. Chancery Rule 16, subdivision “g” provides :

“But, after replication, or such setting down for a hearing, it [answer] shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original statements, except by leave of the court, upon cause shown, after due notice to the adverse party.”

When amendments are asked by leave of court, upon cause shown, and after due notice to the adverse party, they are governed by section 10268 et seq., 3 Comp. Laws (5 How. Stat. [2d Ed.] § .12969 et seq.) • section 10268 reading as follows:

“The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein.”

Can it be said that the chancellor erred in not permitting the amendment to be made as asked for under the terms of this statute?

' An examination of the authorities, English and American, discloses that the right of a complainant to dismiss his bill without prejudice on the payment of costs was of course, except in certain cases, and the exception was where a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect' of being harassed and vexed by future litigation of the same kind. This question of equity practice is quite fully reviewed and discussed in the opinion of Judge Taft, in the case of City of Detroit v. Railway Co. (C. C.), 55 Fed. 569, on page 572. In that opinion the case of Booth v. Leycester, 1 Keen (Eng.), 247, is referred to, where a bill and a cross-bill were set down for a hearing together, and, it appearing that the complainant would be prejudiced by a dismissal of the cross-bill without prejudice, leave to dismiss was not granted. See, also, 16 Cyc. p. 460. It would seem that the rule deducible from these authorities is that, where a bill of complaint is filed and answer thereto in the nature of a cross-bill is made, and a motion is made to dismiss the part of the answer asking for affirmative relief, such s dismissal should not be granted if it would operate to the prejudice of other parties.

In the instant case it appears that after the cause had been at issue for over 14 months, at the hearing, and without any notice to the adverse party, an amendment is sought by a motion to dismiss on a matter which is not only material, but controlling, of the controversy. For, if the answer is amended as desired, the defendants would be entitled to the legal statutory rate of 5 per cent, upon the indebtedness (Vandervelde v. Wilson, 176 Mich. 185 [142 N. W. 553]); while, if the answer stands unamended, since it seeks to enforce the contract, no interest could be recovered (Estey v. Building & Loan Association, 131 Mich. 502 [91 N. W. 753]). It seems clear, therefore, that when the defendant filed an answer in the nature of a cross-bill asking for affirmative relief, complainants thereby acquired certain rights which they would not have possessed if no such affirmative relief had been asked for in the answer, and that it cannot be said that the granting of the motion would not prejudice the rights of the complainants.

Counsel for appellant says that the case of Coon v. Coon, 163 Mich. 644, 648 (129 N. W. 12, 13), should govern this question. This was a bill for divorce filed by the husband against the wife, who filed an answer in the nature of a cross-bill setting up various grounds for divorce. The testimony was taken, and the chancellor filed an opinion to the effect that the husband had not proved his case, but the wife had proved extreme cruelty and was entitled to divorce, and thereupon, before any decree had been entered, the wife filed a motion to dismiss the cross-bill feature of her answer, which motion was denied. But this court said:

“We think the general rule to be deduced from the authorities is that in divorce proceedings the complainant party may dismiss his suit at any time before interlocutory or final decree, in the absence of any legal interest on the part of the defendant or of the State to the contrary.”

And it held:

“In our opinion, the defendant should have been permitted to dismiss her cross-bill and a decree entered dismissing complainant’s bill of complaint.”

However, we do not think that this case is controlling of the instant case, because a different rule has been made applicable in divorce cases, for the reason, as held by the New York court of appeals in Winans v. Winans, 124 N. Y. 140 (26 N. E. 293), that:

“The rights of the party to the record are not alone to be considered, the public is regarded as a party, and must be treated as such by the court.”

See, also, 14 Cyc. p. 701.

By the filing of the cross-bill in this case the complainant obtained no additional rights, and in this particular also it is distinguishable from the case at bar.

We are therefore of the opinion that the chancellor properly denied this motion asking leave to amend.

It is urged that the part of the answer in the nature of a cross-bill does not ask for the payment of usurious interest. In our opinion, this is immaterial, as the statute (section 4857, 2 Comp. Laws, 2 How. Stat. [2d Ed.] §2870) provides:

“But in any action brought by any person on such usurious contract or assurance, * * * -if it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”

It follows that, if it is sought to enforce by an action a contract which in its inception was tainted by usury, the forfeiture of interest becomes operative under the statute.

With reference to the position of counsel as to what the contract in question was, the record discloses the following:

“The Court: I. understand you to stipulate that the parties agreed for 6 per cent, interest, 7 per cent, on overdue installments of interest and principal, and that $230 was a bonus; am I right?
“Mr. Gates: Yes.
“The Court: And that the whole $230 was a bonus ?
“Mr. Gates: Yes; but I claim $130 of it was legal.
“Mr. Walsh: That is not a fact. We will take that up later.
“The Court: Upon the theory that $130 of it was advance interest?
“Mr. Gates: A discount advanced; yes. Perhaps it would be fair for me to say that that is a computation showing the discount.. I will show it to Mr. Walsh. Maybe we had better get that on the record (handing paper). That is a computation I made, showing the discount of 1 per cent, on $5,000 payable annually for three years.”

It is claimed that the $130 of excess is not a bonus, but represented at the time the loan was made the then present worth of 1 per cent, on $5,000, the sum really loaned during the three years the loan was to run, which would make the total interest not in excess of the contractual rate of 7 per cent, permitted by the statute, and that the taking of the $130 by including it as a part of the principal of the mortgage can be sustained as expressive of an intention of the parties that the interest rate was to be 7, and not 6, per cent. With reference to this contention, we are in accord with the conclusion of the chancellor, who stated his views as follows:

“It is a complete refutation of this position that the stipulated facts herein show an express contract for a rate of 6 per cent. This agreement was made effectual by compliance with the statutory provision that ‘it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest not exceeding seven per cent, per annum.’ Act No. 207, Pub. Acts 1899. I know of no authority for holding the borrower and lender to any rate differing from the one they mutually fix, provided only that they select a lawful rate. Their agreed rate being 6 per cent., there is no escape from the conclusion that the $130 under consideration was a-bonus, prerequisite to the granting of the loan. The total bonus of $230 thus exacted was made part of the principal. So included, and bearing interest at the agreed rate of 6 per cent., the contract of the parties as evidenced in the note and the mortgage would result in the borrower being required to pay illegal interest on -the true amount he had borrowed. The penalty for usury, when appropriately invoked, is a forfeiture of all interest. Sections 4857 and 4858, 3 Comp. Laws. The statute has been construed in three cases, in which are defined the principles applicable to the situation here confronting the court. Estey v. Building & Loan Ass’n, 131 Mich. 502 (91 N. W. 753); Vandervelde v. Wilson, 176 Mich. 185 (142 N. W. 553); Malone v. Danforth, 137 Mich. 227 (100 N. W. 445). These decisions are authority for the rule that the penalty of the statute attaches only when effort is made to enforce a usurious contract. In the Estey Case the bill was filed to redeem from a usurious mortgage. The defendant there, as here, sought the affirmative relief of foreclosure. While the opinion does not disclose this to be the state of the pleadings, an examination of the record does show it. (See Vandervelde v. Wilson, supra, at p. 191.) The defendant’s attitude in seeking foreclosure was held to void all interest.”

Being satisfied in the instant case that the contract was usurious, and that by the answer in the nature of a cross-bill an action was brought on such usurious contract, we are of the opinion that the instant case is controlled by the case of Estey v. Building & Loan Ass’n, supra.

The decree in the court below provides for a certain time within which to redeem, and also provides for a foreclosure sale in case of failure of complainant to do so. Fosdick v. Van Husan, 21 Mich. 567; Goodenow v. Curtis, 33 Mich. 505, 510; Huyck v. Graham, 82 Mich. 353, 357 (46 N. W. 781) ; O’Connor v. Keenan, 132 Mich. 646, 650 (94 N. W. 186).

The decree of the court below is therefore affirmed, with costs to appellees.

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